Thanks to the 2nd Circuit Court of Appeals, the infamous Obama administration "drone memo" is now public. The memo lays out the administration's justification for the use of drones to kill suspected terrorists and those unfortunate enough to be in the vicinity of them.
One of the touchstones of the memo is the infamous balancing test the US Supreme Court introduced when weighing Fourth Amendment violations. Never mind that the Fourth Amendment is quite clear in its prohibition against unreasonable search and seizures. As legendary criminal defense attorney Gerry Goldberg would point out, whenever the Supreme Court starts talking about balancing tests, our rights are in danger.
According to the memo we should look to balance the violation of a suspect's Fourth Amendment rights against the interest the government has in violating those rights. In other words, if there was enough dope found, the search is legal and if the government stomps its feet loud enough and proclaims that a person is a terrorist, then it's no harm, no foul.
Balancing tests are what we use to decide whether or not a law should be enforced or repealed. Balancing tests are what we use to decide our course of action in almost any endeavor. A balancing test has no business being involved in determining whether a person's constitutional rights were violated. To do so implies that one's rights under the Bill of Rights are just relative.
But, hey, if we're talking about the Fourth Amendment we already know we're talking about someone who did something they weren't supposed to. We also know that the police found plenty of evidence of that transgression -- otherwise there wouldn't be a need to discuss whether the search or seizure violated anyone's rights.
And who wants to be the person who lets the bad guy go free, anyway? That's certainly not the way to pick up votes during the campaign. Folks want to vote for the judges who are "tough on crime," not the judges who promise to extend the protections of the Bill of Rights to everyone who sets foot in their courtrooms.
And what better way to be tough on crime - or any other bogeyman - than to limit the applicability of the Fourth Amendment? And the best way to do it is to create a straw man and institute a balancing test. Of course the same folks who take that approach with the Fourth Amendment would have a conniption fit if anyone suggested that a balancing test should be used to determine when the Second Amendment should apply.