Hopwin wrote:
You're Right means you can stay home and be assured that none of the above happen. If you VOLUNTARILY participate in an activity that results in you being searched that is because you choose to do so. If I didn't want to be frisked I would not go to football games, baseball games, certain bars, or hang around the courthouse and guess what, I wouldn't be searched. This same rule applies to flying. If I choose to fly then I must submit to the rules. Just as I can exercise the right to bear arms all day until I choose to go into a bank, bar or government building.
There are two obvious problems with what you're saying:
1) The fourth amendment does not apply only to one's home, other than (obviously) the provision that you have a right to be secure in your home. The right to be secure in your person, papers, and effects is not geographically constrained.
2) You're conflating searches and seizures conducted by the federal government with private property restrictions imposed by the owner (which really has more to do with the 2nd amendment than the 4th, anyway). But as far as that goes, neither 2nd nor the 4th amendment rights (nor any other right) include the license to trespass on others' property. If a private property owner wants to forbid guns on their property, then so be it -- that's their prerogative as the owner. If the 2nd amendment were construed to allow you to steamroll over other people's property rights, then it wouldn't be a right at all, by definition.
Courthouses and the like are public property. If not necessarily the "owner", per se, of the public property, the government is at least the trustree of such property, and the property authority to exercise any related property rights. As such, it is their prerogative to establish rules of trespass. And with respect to your other examples of bars, banks, clubs, stadiums, etc. the case is even clearer. These are private property, plain and simple, and you have no right to be there at all (whether carrying a weapon or not), and only permitted to be there under whatever conditions the owner wishes to employ.
And there's the rub: aircraft are private property. Many (but not all) airports are also private property. However, the TSA procedures apply regardless. If all airports and aircraft were nationalized, then with the usual arguments accompanying government vs. public control of public property, the "you choose to fly" argument might apply. But as things are, it does not.
To quote the U.S. v Davis case cited by TheRiov:
Quote:
This requirement does not mean that any kind of governmental intrusion is permissible if it has occurred often enough. The government could not avoid the restrictions of the Fourth Amendment by notifying the public that all telephone lines would be tapped, or that all homes would be searched. "Airport searches" are not outside the Amendment simply because they are being conducted at all airports. In none of the Supreme Court decisions excluding searches or seizures from the Fourth Amendment on the authority of Katz was the result based on such a rationale. Rather, in each case the individual's alleged reasonable expectation of privacy was negated on some ground independent of the frequency of the challenged intrusion itself.31 There is no such independent ground in this case.
And (with respect to "choosing to fly" constituting consent to be searched):
Quote:
The Supreme Court recently re-examined the nature of "consent" in the Fourth Amendment context in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Court was concerned with whether a consent, concededly given, was given "voluntarily." As stated by the Court, "The precise question in this case . . . is what must the state prove to demonstrate that a consent was 'voluntarily' given." 412 U.S. at 223, 93 S.Ct. at 2045. The Court concluded that "the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of effective consent." Id. at 227, 93 S.Ct. at 2047-2048. The Bustamonte test would be applicable in determining whether consent to a preboarding search was "voluntarily" given. See United States v. Ruiz-Estrella, 481 F.2d 723, 730 (2d Cir. 1973).
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