That’s the decision making all the rounds of the gun- and libertarian-blogs right now, in which a 3-2 majority of the Indiana Supreme Court held:
…that there is no right to reasonably resist unlawful entry by police officers.
What part of “unlawful” don’t they get? OK, I’ll unreasonably resist.
This is a classic example of what a “living Constitution” philosophy eventually leads to. Also from the decision:
The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): “If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) (“One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”)
So it’s established Supreme Court caselaw, right? And inferior courts may not tell the Supreme Court it was out to lunch, right?
Nazzofast, Guido. Here’s that “living Constitution” philosophy:
In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. One scholar noted that the common-law right came from a time where “resistance to an arrest by a peace officer did not involve the serious dangers it does today.” The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s.
Really? They did? Under color of what authority? I’m unaware of any Supreme Court decisions post 1948 that established this new interpretation. I’m unaware of any amendments to the Constitution prior to or after 1920 that did so.
To quote Alan Gura from the oral arguments before the Supreme Court in McDonald v. Chicago:
States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.
As 9th Circuit chief judge Alex Kozinski wrote in his August 2010 dissent to that court’s U.S. v Pidena-Moreno decision, another case involving Fourth Amendment protections:
Having previously decimated the protections the Fourth Amendment accords to the home itself, our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.
And I am reminded once again of our complete disconnect from the difference between the citizenry and the police as expressed by Sir Robert Peel’s Nine Principles of Modern Policing, most especially Principle #7:
Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
That stopped when the public became “them” to the police.
One more quote, this one from a TV show, Battlestar Galactica the recent version. Admiral Adama, when asked to place his space Marines in the position of policemen to the refugee fleet demurred with some writer’s very cogent observation:
The police protect the People. The military defends the State. When the military becomes the police, the People become the Enemy of the State.
Our police forces are becoming more and more militarized defenders of the State every day, and rulings like this one are helping that happen.