DNA ruling weakens Fourth Amendment

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“The Maryland law, similar to those in many states, including Colorado, allows police to obtain DNA samples from people arrested for violent crimes.”

There are different classes of felonies, some of which are classed as Non-Violent felony offenses. I feel this law should be re-visited and limited only to violent felonies. The same should hold true to gun ownership rights. Just because someone does something stupid in their youth, it doesn’t mean they should have to wear the scarlet “F” on their record for life. Didn’t they do that kind of thing in Salem Mass. with the witches?

While the Daily Sentinel should be applauded for its editorial defense of citizens’ right to privacy (“DNA ruling weakens Fourth Amendment”) and for reporting on parallel threats thereto (“Phone-records monitoring cast wide net”; “Sen. Udall urges review of Patriot Act”), its reliance on Justice Scalia’s dubious minority dissent is problematic.

Scalia frequently masks weaknesses in his own arguments by ridiculing those of others (e.g. “taxes the credulity of the credulous”).  In Heller, Scalia dismissed as “bordering on the frivolous” the argument that the Second Amendment protected only “arms” familiar to the Founders.  However, perhaps even more fantastical is Scalia’s implied contention that – had those Founders known about or collectively anticipated the proliferation and lethality of contemporary “personal” firearms – they would nonetheless have worded the Second Amendment no differently. 

As the Sentinel expressly acknowledged – but contrary to Scalia’s dissenting assertion—the Fourth Amendment is by no means “categorical and without exception”, but rather explicitly prohibits only “unreasonable searches and seizures”.  Thus, the legal questions were whether DNA cheek swabs are dispositively less “reasonable” than fingerprints and photographs taken at booking incident to any lawful arrest – whether or not justified, and whether such identifiers, once legally taken, can lawfully be used to solve other crimes.

A similar analysis applies to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), the USA Patriot Act of 2001, and the Protect America Act (FISA Amendments) of 2007.  Thus far, only the Patriot Act’s “National Security Letter” subpoenas have been declared unconstitutional – because they did not permit judicial review if challenged – but what was considered “reasonable” immediately after 9/11 may no longer be.

Indeed, while the facial constitutionality of FISA has been consistently upheld, recent revelations may support an “as applied” challenge to its “business records” provisions. 

Meanwhile, the U.S. Constitution itself remains completely silent as to “privacy”.



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