Nothing, absolutely nothing, defines the essence of what it means to be an American citizen more than the sanctity and inviolability of Selfhood; in other words, “personal autonomy.” The sanctity and inviolability of Selfhood, i.e., personal autonomy, logically entails freedom from unwarranted Governmental intrusion over person and personal effects. ‘Personal autonomy’ is the sine qua non of what it means to be an American.
The notion of ‘personal autonomy’ is embedded in and is the raison d’être of the Nation’s Bill of Rights; the central theme running throughout it, and the predicate basis for it. Without it freedom and liberty in the truest, most basic, and rawest sense are impossible.
The Nation’s very existence as a free Constitutional Republic, along with the inherent sovereignty of the American people and the supremacy of the American people over Government, depends absolutely upon it.
Caniglia, as treated by both the U.S. Court of Appeals for the First Circuit and the U.S. District Court of Rhode Island is a “case study” of the mishandling of U.S. Supreme Court precedent by lower Federal Courts—glaringly so. And, as a result, those lower Federal Courts erred in the decision they reached. This happenstance isn’t all that unusual, unfortunately,
Too many lower Federal and State Courts—their judgment clouded by unyielding and flawed ideological, philosophical prejudices, impulses, and biases pertaining to the import and purport of the Bill of Rights—routinely misread and misapply U.S. Supreme Court rulings and holdings.
This is likely intentional. Many of these Courts know exactly what they are doing but go ahead misapprehending and misapplying High Court rulings, misconstruing High Court reasoning, and blatantly ignoring High Court precedent anyway, cloaking their flawed reasoning, rulings, and logic in abstruse legalese. This is seen most prominently in the mishandling and misreading of the seminal Second Amendment Heller and McDonald case rulings. And it occurred most recently in the Fourth Amendment Caniglia case.
WHY DID THE U.S. SUPREME COURT DECIDE TO REVIEW THE CANIGLIA CASE?
It is rare for the U.S. Supreme Court to take up a case, any case, for review. Petitioners cannot, as a matter of right, demand that the High Court do so.
Rarer still does the Court come to a unanimous agreement in cases that it does review. Nonetheless, all nine Justices came to a unanimous agreement in Caniglia.
This happenstance is all the more remarkable today, where differences in jurisprudential and methodological approaches to case analysis exist and where philosophical differences between the two wings of the High Court are so vast and so stark as to make well-nigh impossible nine Justices coming to a mutual agreement on anything.
A broad gulf exists between the liberal wing and the conservative wing of the Court, and that wide divide and bright-line are mirrored in Congress and in the Nation at large.
Also remarkable is the fact that Caniglia is short in length and that several Justices wrote independent concurring opinions, joining in the concurring opinions of the others, suggesting they were much of one mind.
For all these reasons and for one more, that the case at bar involves an issue that goes to the very core of a fundamental right, with ramifications on several others, the Caniglia case begs for close scrutiny.
Caniglia speaks volumes about the importance—at least in some instances, as in the case at bar—where the liberal wing of the High Court, attaches as much importance to the sanctity and inviolability of one’s personhood, and, by extension, to one’s personal effects, as does the conservative wing of the Court.
Also, as noted by many writers, Caniglia touches upon, albeit briefly, so-called “Red Flag” laws. Justice Alito mentions this in his Concurrence, asserting: “This case also implicates another body of law that petitioner glossed over: the so-called ‘red flag’ laws that some States are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons. . . . Provisions of red flag laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues.”
Since the liberal wing of the High Court is loath to strengthen, or for that matter, loath to preserve exercise of the right of the people to keep and bear arms, Alito asserts his hope that the Constitutionality of “Red Flag” laws might at some point be addressed by way of the Fourth Amendment, rather than via the Second since the liberal wing is sensitive to the Fourth Amendment. He seems to direct this point to his brethren in the liberal wing. That would explain why he bothered to mention “Red Flag” laws in his Concurrence.
After all, Petitioner’s firearms were unlawfully taken from him, and Petitioner did raise the Second Amendment issue in his complaint at the U.S. District Court level.
The Second Amendment was certainly implicated even if the Second Amendment issue wasn’t addressed at the U.S. Supreme Court level.
Red Flag laws are the sort of thing that the Progressive Left in our Nation and the far more extreme Marxist faction have pushed for in the last few years in their ongoing overzealous attack on the Second Amendment to the Constitution—a full-frontal assault on the Second borne from their singular, rabid abhorrence of it and of their marked frustration with it, exemplified in caustic and frenzied desperation to do away with it once and for all time. Progressives and Marxists see this as necessary because, for them, the very existence of an armed citizenry is an anathema, something totally at odds with their agenda, the ultimate goal of which is the realization of a single, all-powerful, one-world government. Achievement of that goal is impossible as long as the Nation’s Bill of Rights, and especially the Second Amendment, continues to exist.
Progressives and Marxists all ascribe to the principles and tenets of COLLECTIVISM, encompassing a vast domain and array of political, social, economic, and cultural precepts all of which are antithetical to the core principles and tenets of INDIVIDUALISM, upon which the free Constitutional Republic was constructed. INDIVIDUALISM is the polar opposite of COLLECTIVISM, as the precepts of COLLECTIVISM are precisely what the founding principles and tenets of our Nation ARE NOT grounded on.
The tenets and principles of INDIVIDUALISM extol the virtues and qualities of Personal Autonomy and Personal Responsibility. Morality emanates from an omnipotent, omniscient, omnipresent, benevolent, loving, Divine Creator. COLLECTIVISTS deny this. They argue that morality is an artificial social and political and cultural construct, and they infer that the Nation’s Bill of Rights, are, as well, nothing more than a set of social and political constructs devised by Government that may be lawfully dispensed with by the Government that creates them.
As the principles and tenets of COLLECTIVISM gain prominence and impetus in America, concomitant with control of the Legislative and Executive Branches firmly in the hands of Progressives and Marxists, the principles and tenets of INDIVIDUALISM lose prominence and recede into the background; eventually to be erased from the public’s awareness. and, thence, from the public’s memory.
To accomplish the task of eroding the historical, cultural, and ethical foundations of our Nation, the Progressives and Marxists will leave neither Americans nor their institutions alone.
They intend to use their power to encode an entirely new set of precepts in the psyche of Americans, grounded in the precepts of COLLECTIVISM. This requires controlling both thought and conduct. Progressives and Marxists intend to preclude all dissent and to corral and redirect all impulses toward an embrace of COLLECTIVISM.
Progressives and Marxists argue that all behavior and thought that does not cohere to dictated Governmental norms is deviant and contrary to the running of a well-ordered society and must not and will not be tolerated. Progressives and Marxists insist that Americans must learn to behave to the New Order. Americans must acquiesce to Government encroachment in and intrusion upon all aspects of their lives.
Naturally, Progressives and Marxists would be and are suspicious and jealous of those Americans who wish for nothing more than to be left alone and who insist on being left alone; Americans who cherish and revere above all else the right of the individual TO BE individual; free from suffocating rigidity of thought and conduct thrust upon them by the mindless drones of a NEW DOGMA, who compel blind, obsequious obedience to the dictates of “DIVERSITY, EQUITY” and INCLUSION—the new mantra of the Authoritarian Progressive and Marxist extremists.
“RED FLAG” laws—the common vernacular for the more accurate, legal expression, “EXTREME PROTECTION ORDERS” —have become a prominent fixture in the mind of the Anti-Second Amendment, seditious Press and in the mind of other Anti-Second Progressive Left and Marxist elements in our Nation.
With control of the Executive Branch and the Legislative Branch of Government presently in the hands of Radical Democrats, these Progressives and Marxists have now launched a full-frontal assault on the Second Amendment, borne from their singular, rabid abhorrence and naked fear of it and from their marked frustration with it. Their recent actions, of which the American people have obtained as yet just a foretaste, are exemplified in caustic and frenzied desperation to do away with the Second Amendment altogether.
Group Responsibility and, concomitantly, Group Dynamics are features of and critical to the tenets of Collectivism. Collectivism eschews the notion of personal autonomy and personal responsibility in favor of Group identity where the Self is immersed in and lost in the Societal Collective, the Hive.
The impetus behind the enactment of and application of “Red Flag” laws is to quell even minimal threats to the cohesiveness of the Collective, the Societal Hive. To contain the “Threat to Self and Others” by dispossessing a person of his firearms is the purported goal of “Red Flag” laws, or so those who ascribe to their enactment say. But containing the perceived “Threat to Self and Others” is itself a basic tenet of Collectivism. For, personal autonomy is itself the basic threat to Self and Others.
Progressives and Marxists believe that the Individual Self is only adequately contained when the Self is fully immersed in and merges with THE GROUP, in THE COLLECTIVE, i.e., when one loses Oneself to the Group. Only then is the threat of SELF ‘TO ITSELF’ and ‘TO OTHERS’ contained, neutralized. And, as the ‘FIREARM’ is identified with and emblematic of SELF and with “PERSONHOOD,” and with “PERSONAL AUTONOMY,” in a clear and emphatic way, the FIREARM, the “GUN,” must be removed from the “SELF.”
And this brings us back to consideration of the critical importance of the Caniglia case.
The truly frightening thing about the actions of the police in Caniglia, and with the lower Federal Courts’ handling of Caniglia is not the allusion to the creeping, dire influence of “Red Flag” laws on one’s personal identity and autonomy, horrible as those laws are, but, rather, that the Police didn’t even comply with those laws, and the lower Federal Courts didn’t so much as suggest that they should have done so. The police didn’t obtain a judicial warrant but unlawfully intruded upon Petitioner’s home; unlawfully confiscated his personal property, his firearms; and unlawfully intruded upon Petitioner’s right of personal autonomy, the right to the integrity of Body, Mind, and Soul.
This is particularly worrisome and distressing because Rhode Island did enact a Red Flag law. The Red Flag law of Rhode Island is found in the General Laws of Rhode Island, Title 8, Chapter 8.3—Extreme Protection Orders, Sections 8-8.3-1—8-8.3-14 et. seq.
These laws lay out in minute detail:
Filing of the Petition for an emergency protection order; Contents of the petition; Temporary Order Proceedings; Hearings on the Petition, including grounds for issuance, and the Contents of the Order; Service of One-Year Extreme Protection Orders; Termination, Expiration, including Renewal of Orders; Firearms Return or Disposal; Penalties; Liability; Required Notice on Orders and Confidentiality of Proceedings; Appeal; and Severability.
In particular, R.I. Gen. Laws § 8-8.3-8, provides that,
(a)Any firearm seized or surrendered in accordance with this chapter shall be returned to the respondent upon his or her request, within ten (10) days, when:
(1) The respondent produces documentation issued by the court indicating that any extreme risk protective order issued pursuant to this chapter has expired, terminated, or has not been renewed. Respondent shall not be required to acquire any additional court order granting the return of seized or surrendered firearms; and
(2) The law enforcement agency in possession of the firearms conducts a national criminal records check and determines that the respondent is not otherwise prohibited from possessing a firearm under state or federal law.
Rhode Island’s Red Flag laws, had they been adhered to, would have provided at least a modicum of due process, at least in respect to Petitioner’s firearms, because judicial intervention would have been necessary before the Government could dispossess an American citizen of his firearms. In Caniglia, though, the Red Flag laws weren’t applied. They could have been, but they weren’t.
In Caniglia, the police not only unlawfully confiscated Petitioner’s firearms but forced a psychiatric evaluation on the Petitioner. The police unlawfully invaded the sanctity of Petitioner’s house; they unlawfully deprived Petitioner of his personal property; they violated Petitioner’s personal liberty in unlawfully compelling him to undergo a psychiatric evaluation; and they violated the sanctity and the inviolability of one’s own Self in violation of the Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution. The police further compounded their unlawful actions by refusing to return Petitioner’s firearms to Petitioner upon Petitioner’s release from the hospital the following day when he lawfully demanded the police to release his firearms to him.
Petitioner was compelled to retain the services of an attorney to retrieve his firearms. Yet the lower Federal Courts saw nothing wrong in any of this. Ostensibly relying on a U.S. Supreme Court case that they took completely out of context, the District Court and U.S. Circuit Court essentially relied on common law, and, applying it ad hoc, deprived an innocent man of his fundamental right to be secure from unreasonable searches and seizures of both personhood and personal property.
The danger of reliance on interest balancing is immediately seen in the U.S. Circuit Court of Appeals’ assertion that,
“Although an individual has robust interests in preserving his bodily autonomy, the sanctity of his home, and his right to keep firearms within the home for self-protection, these interests will sometimes have to yield to the public’s powerful interest ‘in ensuring that ‘dangerous’ mentally ill persons [do] not harm themselves or others.’”
Isn’t it nice of the Court to acknowledge the right of personal autonomy, the sanctity of home, and the right to keep firearms within the home for self-protection? These are fundamental rights that the Court felt the Government, in its wisdom, could violate when “in ensuring that ‘dangerous’ mentally ill persons [do] not harm themselves or others.’”
But, was Petitioner mentally ill? Hospital staff found he wasn’t mentally ill, and promptly released him. And it certainly wasn’t so obvious to all the police who came to Petitioner’s house, as they didn’t think so. The facts as recited by the Court itself refutes the accuracy of the Court’s own inference:
“When the officers asked him about his mental health, he told them ‘that was none of their business’ but denied that he was suicidal. Officer Mastrati subsequently reported that the plaintiff ‘appeared normal’ during this encounter, and Officer Russell described the plaintiff’s demeanor as calm and cooperative. This appraisal, though, was not unanimous: Sergeant Barth thought the plaintiff seemed somewhat ‘[a]gitated’ and ‘angry,’ and Kim noted that he became ‘very upset’ with her for involving the police.
The ranking officer at the scene (Sergeant Barth) determined, based on the totality of the circumstances, that the plaintiff was imminently dangerous to himself and others. After expressing some uncertainty, the plaintiff agreed to be transported by ambulance to a nearby hospital for a psychiatric evaluation.” Caniglia vs. Strom, 953 F.3d 112 (lst Cir. 2020).
One might make a strong argument that Petitioner’s surprised reaction at seeing the police showing up at his house was completely understandable and rational.
Justice Thomas who drafted the main opinion, laid out the serious error of both the Government and the Courts at the outset of the opinion. Justice Thomas opines,
“Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. Cady v. Dombrowski, 413 U. S. 433 (1973). In reaching this conclusion, the Court observed that police officers who patrol the ‘public highways’ are often called to discharge noncriminal ‘community caretaking functions,’ such as responding to disabled vehicles or investigating accidents. Id., at 441. The question today is whether Cady’s acknowledgment of these ‘caretaking’ duties creates a standalone doctrine that justifies warrantless searches and seizures in the home. It does not.”
The horror of the Caniglia episode is that the Government deprived a man of his fundamental right to liberty, personal autonomy, personal property, the integrity of the body, and the integrity of Self, and, all of this without application made to the Court for a warrant that even the most draconian of a State’s Red Law procedures required. When the police officers arrived at Petitioner’s home, in response to Petitioner’s wife’s request, they should have stated to Petitioner’s wife that, absent a warrant from the Court, they could not lawfully compel Petitioner to undergo a psychiatric evaluation; nor could they lawfully confiscate the Petitioner’s firearms. Petitioner’s wife had made clear she did not feel threatened by her husband, and there was nothing in Petitioner’s behavior upon which the officers could reasonably infer that Petitioner constituted a threat either to himself or to his wife.
The police should have informed Petitioner’s wife that if she truly felt the need to dispossess her husband of his firearms she should petition the Court for an Order. That the police failed to adhere to the law, illegally compelling Petitioner to undergo an immediate psychiatric evaluation and then confiscating Petitioner’s firearms anyway, when telling Petitioner that they would not do so, and in fact could not legally do so. The actions of the police and the acquiescence of the District Court of Rhode Island and of the U.S. Court of Appeals to the Government’s actions, illustrate just how far this Nation has slid on the road to tyranny.
This is not to suggest that “Red Flag” laws aren’t to be seen as a dire threat to the Nation’s fundamental rights and liberties. They are. But if, as in the Caniglia case, the State can deny a man his liberty and property, ignoring even the constraints of bad law, as “Red Flag” laws are, as Rhode Island’s Red Flag is, and if a heedless, feckless Judiciary gives the State the Court’s imprimatur to establish that such actions are acceptable, even commendable, then our Nation has found itself in uncharted, perilous waters, unlike any our Nation has countenanced before.
In Caniglia, the Government operated completely outside the law, invading and violating both a person’s sacred, inviolate “Self” and his personal property. This was awful. Yet, the Rhode Island Federal Courts, rather than calling out the Government for their lawless acts, demonstrated a profuse and odd proclivity to defend those lawless actions. If Government can get away with that, Government can get away with anything, for, at that juncture, neither the Constitution nor Statute means anything. Written laws are seen as nothing more than a set of guidelines at best, to be followed or not as the Government wishes; and, at worst they are simply empty vessels existing simply to give the populace a false sense of security from the specter of tyranny looming over it, even as that tyranny has long taken root and has acquired a firm hold on the Land, and long after the American citizenry has been demoralized, degraded, and subjugated.
Since this is something the Progressives and Marxists want, what they are working toward, what they are attuned to, what they identify with, what they long for, they see the annihilation of a free Constitutional Republic and the debasement of a once-proud sovereign people as a good thing, a positive thing, as they never believe in the sanctity and inviolability of the human being anyway. All they believe in and are concerned with is the well-being of the COLLECTIVIST HIVE, and they believe a dominant and domineering, omnipresent, omnipotent, centralized Government, giving marching orders to the States and to the people is the best vehicle for ensuring the well-being of the HIVE, the HERD.
And a BEEHIVE or a HERD OF ANIMALS is how these Progressives and Marxists perceive the American citizenry, and an overbearing, Government is just the sort of mechanism for keeping an unruly herd of animals or a nameless, swarm of bees in check.
But this is something that the U.S. Supreme Court—all nine Justices—could see manifesting in the actions of the Rhode Island police and in the reasoning and rulings of the U.S. District Court of Rhode Island and as those rulings were affirmed by the U.S. Court of Appeals for the First Circuit.
The High Court must have seen the danger a renegade Government and a conniving or oblivious Judiciary pose to the preservation of a free Constitutional Republic and to a Sovereign People when Government operates completely outside the law to deprive an innocent American citizen of his personal property and worse when that Government and Judiciary deprive a man of the sanctity and inviolability of bodily integrity and Personal Selfhood.
To see even the liberal wing of the Court aghast by the actions of both Government and the Rhode Island Judiciary must give one pause.
But how long will the U.S. Supreme Court retain even a vestige of independence if the Progressive Left and Radical Marxists, that presently control two Branches of Government, take firm control of the Third Branch as well?
Copyright © 2021 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.