“A Man’s Home Is His Gated Community” (April 10, 2006)

“A man’s home is his castle.”  This maxim reflects a fundamental social and economic compact in Anglo-American law.  All of us agree to treat each other’s home as if it were a castle which frees each of us to do something more productive than to defend one’s home 24/7/365.  A land of fortified castles is far less efficient and creative than a land of homes and businesses respected by all of us.

The recent Supreme Court case of Georgia v. Randolph, 547 U.S. ___ (2006), threatened to depart in a small way from this cornerstone of the Constitution.  The Court addressed whether the police can search a home without a warrant when one occupant gives consent but another objects.  The wife allowed the police to enter and search the home despite the objection of her husband who co-inhabited the residence.  Other prior cases had allowed the police to enter if consent was given by the one inhabitant who was present.  By a 5 to 3 decision, the Supreme Court rejected the search as unreasonable under the Fourth Amendment and invalid as to him.  A man’s and a woman’s home is their castle not just his or her castle.

Some of those who are concerned about crime seek to expand the “castle doctrine,” a corollary to the “castle rule” that allows a person to use force including deadly force to protect oneself and others from attack.  There is a countervailing “duty to retreat” under some circumstances.  The “castle doctrine” has been expanding in recent years to allow one to pursue a possible assailant.  The legislatures and courts must balance these concerns with care.

Gated communities are expanding in many regions of the Republic.  The communities represent a rejection of the “castle compact” and a return to castles with gates and guards rather than draw bridges and moats.  The denizens have their own private McFortress within the larger compound.  They send their kids to private schools in equally guarded enclaves detached from the public.  Their shelters shelter them from ordinary activities.  The reaction is not entirely surprising in the face of criminal activity.  However, the moated communities are changing the landscape and lifestyle of America.

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