THE SECOND AMENDMENT

The right of the people to keep and bear arms

PRESENT DAY The Second Amendment has been interpreted to mean

the right of INDIVIDUALS to own guns

Due to the current day climate of crime and violence

laws have been proposed restricting: 1. the availability of guns 2. the use of guns 3. the use of certain kinds of weapons

This has resulted in a national debate:

Should registration and a waiting period be required for a person to own recreational guns? Should certain types of arms such as assault weapons be banned?

NATIONAL FIREARMS ACT OF 1934

provided for: 1)taxation and 2) registration of automatic weapons and sawed off shotguns

COURT CASE IN REGARDS TO THE SECOND AMENDMENT UNITED STATES V MILLER 1939

first Second Amendment case to be heard by the Supreme Court noted that the Second Amendment did NOT protect the right of CITIZENS to own firearms that were not ordinary militia weapons Miller, had been charged with possession of an unregistered sawed off shotgun; the Court noted that it had no evidence that such a weapon constituted ordinary militia equipment

United States v Miller

was a federal case the regulation of arms has been a state matter UNTIL............

BRADY BILL 1993

named after President Reagans press secretary Brady was injured by a handgun in the attempted assassination of the president took more than 10 years to obtain congressional approval

The law
placed restriction on handgun registration, setting up a minimum waiting period before purchase many states had to change their laws based on this legislation

In 1997, a Supreme Court decision did:

strike down the part of the law forcing local officials to perform instant checks

The NRA (The National Rifle Association)

lobbied AGAINST passage of the Brady Bill, arguing that it would not stop criminals from obtaining weapons lobby: to urge the passage or non-passage of a bill

THE DISTRICT OF COLUMBIA V HELLER (2008)

the ONLY Supreme Court case to rule on the question of whether the right to bear arms CONSTITUTIONALLY protects INDIVIDUALS challenged a Washington D.C. gun control law that banned guns in the District and required any legal guns to be unloaded in a 5-4 decision, the court ruled that the law was unconstitutional and that the Second Amendment protected an INDIVIDUALS right to bear arms still questionable, since the decision only applied to Washington, D.C. and federal laws

THE FOURTH AMENDMENT

grants freedom from unreasonable searches and seizures. This includes persons, houses, papers, and effects has come under the scrutiny of both the federal and state governments in determining how far then can go in obtaining evidence

WHOM does the Fourth Amendment protect?

The right of the people -- All those who live under the protections of the Constitution. Does that include citizens? (yes). Does that include children under 18? (yes). How about undocumented immigrants? (yes).

From WHAT does the Fourth Amendment protect those people?

Against unreasonable searches or seizures by the government In determining what is an unreasonable search or seizure, courts look to balance individual liberty within the need to keep an ordered society. Figuring out what is reasonable or unreasonable is one of the central challenges of the Fourth Amendment.

What about justified intrusions by the government?

The second part of the Fourth Amendment talks about no warrants shall issue but upon probable cause. Probable cause=reason to suspect you

What is a warrant?
a formal document signed by a judge that allows police to search or arrest you Warrants allow law enforcement officers who have reason to suspect you (probable cause) to ask a judge for permission to interfere with your privacy.

Thus, if a search warrant is supported by enough evidence:

the government: 1. can search you 2. can search your house 3. or even arrest you

PROBABLE CAUSE
again, a reasonable belief that a crime has or is being committed; the basis for all lawful searches, seizures and arrests. is a key factor in determining if a search is legitimate applies to states is the first component of due process due process: the principle that the government must respect all of the legal rights that are owed to a person according to the law. MORE TO COME ON DUE PROCESS

EXCEPTION To Probable Cause Component:

plain view characteristic: allows police to obtain evidence that is in sight of the investigators

MAJOR ISSUES related to the FOURTH AMENDMENT

To what extent can police conduct a search with a warrant and obtain evidence found to prosecute an individual? What methods can law officials use to obtain evidence? Can the right of privacy extend to social issues, such as abortion?

KEY COURT CASES RELATED TO THE FOURTH AMENDMENT

1. Mapp v Ohio (1961): police searched Dorlee Mapp's house with a questionable search warrant expecting to find evidence that would implicate a suspected bomber. Instead they found pornography and arrested Mapp for possessing lewd materials. Based on the 4th amendment, the Court created the "exclusionary rule" protecting a citizen's privacy by making anything collected by unreasonable or illegal search and seizure to be inadmissible as evidence in a court.

EXCLUSIONARY RULE
determined that police may obtain only that evidence available through a legitimate search warrant other evidence found at the scene of the crime is not admissible in the trial; it must be EXCLUDED

EXCEPTIONS to the EXCLUSIONARY RULE

1. INEVITABLE DISCOVERY: evidence is admissible at trial if the police would have eventually discovered the illegally obtained evidence through the course of their investigation anyway 2. GOOD FAITH: evidence is admissible from police officers who honestly believe that they acted in compliance with the law

(2) GRISOLD V CONNECTICUT (1965)

the Court struck down a Connecticut law that prohibited the use of contraceptives, after a doctor was arrested for distributing birth control devices using the privacy provision of the Fourth Amendment, the Court stated that individuals had the right to privacy in the area of sexual relations

(3) ROE V WADE (1972)

using the concept of being secure in their persons from the Fourth Amendment, the Supreme Court ruled that abortions are constitutionally protected; it up a trimester system first trimester: unrestricted abortions second trimester: regulated abortions during this semester third semester: allowed states to ban abortion unless the mothers or babys life was endangered VERY CONTROVERSIAL AND FAMOUS CASE

(4) UNITED STATES V LEON (1984)

the Court created the good faith exception to the exclusionary rule allowed the introduction of illegally obtained evidence where police can prove that the evidence was obtained w/out violating the core principles of Mapp V Ohio (1961)

(5) PLANNED PARENTHOOD V CASEY(1992)

the Court upheld a Pennsylvania law requiring minors to wait 24 hours after receiving parental approval before getting an abortion as constitutional also struck down a provision mandating that women obtain informed spousal consent upheld, in principle, Roe V Wade (1972)

THE FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Due Process

refers to how and why laws are enforced. It applies to all persons, citizen or alien, as well as to corporations.

The Fifth Amendment Guarantees (1) Indictment by a Grand Jury:

Nobody can go to trial for a serious crime, except in a military setting, without first being indicted (to bring a formal accusation against) by a grand jury. A grand jury listens to evidence and decides if someone should be charged with a crime. Thus the grand jury determines probable cause (a reasonable belief that a crime has or is being committed), not "guilt" or "innocence". Unlike trial juries, grand juries can indict with only a majority. Grand juries do not a unanimous vote.

The Fifth Amendment and Double Jeopardy

defendants, once acquitted on a charge, may not be tried again for the same offense at the same jurisdictional level Defendants may be tried again if (1)the previous trial ended in a mistrial or hung jury, (2)if there is evidence of fraud in the previous trial, or (3)if the charges are not precisely the same the police officers who beat Rodney King, after being acquitted on state charges, were convicted on federal charges for the same offense.

The Fifth Amendment and Pleading the fifth

The best known clause in the Fifth Amendment ("No person ... shall be compelled in a criminal case to be a witness against himself") protects suspects from forced selfincrimination. It should not by any means be taken as a sign of guilt

The Fifth Amendment and The Miranda Rule

Just because a suspect has rights doesn't mean that a suspect knows about those rights. Officers have often used, and sometimes still use, a suspect's ignorance regarding his or her own civil rights to build a case. this all changed with Miranda v. Arizona (1966), the Supreme Court case that created the statement officers are now required to issue upon arrest--beginning with the words "You have the right to remain silent..." *KEY COURT CASE*

Miranda v Arizona (1966)

Ernesto Miranda, mentally retarded, was accused and convicted of rape and kidnapping he confessed to the crime under intense interrogation wi/out any mention by the police of his right to obtain a lawyer or what consequences the answers to their questions would have on the outcome of the trial The Supreme Court, in its landmark ruling, established the Miranda Rights

The Miranda Rights

directed the police to inform the accused upon arrest that he has a constitutional right to remain silent, any thing said can be used in court, he has a right to consult with a lawyer at any time during the process and that a lawyer will be provided if the accused can not afford one the accused must be asked if he/she understands these rights since the Miranda ruling, the courts have begun to limit some of the rights established by the following cases

New York v Quarles (1984)

the Court created a public safety exception to the Miranda warnings allowing the police to arrest an accused criminal w/out reciting the Miranda warnings where public safety is concerned

Hamdi v Rumsfeld (2004)

Background of the case: During the U.S. invasion of Afghanistan in 2001, U.S. military forces captured a young Yemeni national named Salim Ahmed Hamdan, who had worked as a driver and bodyguard for Osama bin Laden. He was held without trial until July 2004, at which point he was charged with "conspiracy to commit terrorism" based primarily on his association with bin Laden. He had not been accused of directly participating in, or coordinating, any terrorist acts.

Hamdi v Rumsfeld Outcome:

Enemy combatants held in the United States have due process rights enemy combatant: a term historically referring to members of the armed forces of the state with which another state is at war. In the United States the use of the phrase "enemy combatant" may also mean an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror

HABEAS CORPUS
refers to the right of every prisoner to challenge the terms of his or her incarceration in court before a judge today, the most frequently discussed international habeas corpus controversy is the Bush administration's policy of imprisoning hundreds of suspected Afghan and Iraqi terrorist associates in Guantanamo Bay and other offshore U.S. prisons without trial or meaningful judicial review

The Fifth Amendment and Property Rights and the Takings Clause:
under this clause, referred to as the takings clause, the government can't simply claim eminent domain (the power of the government to take private property for public use with payment of compensation to the owner) and take a citizens property recent developments, however, (most notably, Kelo v. New London (2005))have weakened the takings clause considerably.

Key Court Cases regarding the Fifth Amendment

1. ESCOBEDO V ILLINOIS (1964): Danny Escobedo requested the assistance of a lawyer after he was arrested for the murder of his brother The police would not grant the request even though there was a lawyer at the police station Escobedo made a number of incriminating statements w/out his lawyer present, which were later used against him at his trial. The Supreme Court ruled Escobedos due process rights of self-incrimination and right to counsel were violated and he was released from prison.

(2)Gideon V Wainright (1964)

landmark case that established that the accused has the right to an attorney even is he/she cannot afford one Gideon, accused of a felony in Florida, requested the assistance of a lawyer. The Florida criminal justice system allowed free assistance only in cases that were punishable by death. Gideon defended himself and lost The Supreme Court ruled that his Fifth Amendment due process rights, made applicable by the Fourteenth Amend, were denied

THE SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Right to a Speedy Trial:

is intended to prevent long-term incarceration and detention (which amounts to a prison sentence without a guilty verdict) without trial

The Right to a Public Trial:

Although public trials would ordinarily seem to be a condition that would work against the defendant, given the likely humiliating effect, they also ensure that the proceedings are not conducted in an underhanded way. One question currently under debate in the court system is whether televised trials are a good idea--do they further protect this right, or do they just exploit it?

SOME ARGUMENTS IN FAVOR OF TELEVISED TRIALS:

a defense against corruption; some believe that judges will intentionally influence the outcome of a trial by verbally attacking the defendant and their attorney in front of the jury it gives the public the chance to see the opportunity to see the justice system in action and how our legal system operates; many t.v. shows present the legal system in a glamorous way it will help lower the crime rate by making examples of criminals will improve confidence in the judiciary system instead of relying on a journalists interpretation (newspapers, etc.), we can watch and draw our conclusions will provide public monitoring, which provides a powerful incentive for all involved to increase their efficiency and adhere to good standards of behavior

ARGUMENTS AGAINST:
participants in a trial which is being broadcast are aware theyre being watched, and this could very well alter the behavior of those involved; shifts the focus to attention seeking and away from finding someone guilty or innocent criminal trials are a very serious matter and not something that should be viewed for entertainment people have a right to privacy; just because you may have broken the law, you should still have a right to privacy opens up the media to scrutinizing the defendant-picking apart the participants in the case, which could the affect the outcome of the trial judges, jurors and attorneys end up playing for the camera instead of concentrating on the case victims may be less likely to give evidence of painful incidences if they know they are being televised

For Example: O.J. Simpson trial

The most memorable event from the trial of O. J. Simpson was his inability to fit his hand into the glove found at the murder scene. However, much less prominence was given in the television coverage to the hours of scientific evidence that proved it was possible that the glove had shrunk. Following the televised trial of O. J. Simpson, several witnesses jurors gave interviews to the media, or wrote their memoirs of the case. A popular following of a trial often encourage witnesses and jurors to become involved in the media coverage. This interference may affect the reliability of the witness evidence or the jurors verdict.

The Right to an Impartial Jury:

Not only must jury members not have improper biases before the trial begins, but they must also not be improperly prejudiced by the case or by media coverage of the case. Since juries are by definition made up of members of the community, and human beings in general tend to be good at developing prejudices, this can be a challenge.

...Unless You're a Kid:

Juvenile defendants are not entitled to a jury trial under the Sixth Amendment. This is consistent with the overall higher level of privacy granted in juvenile courts, where sentences are less harsh and criminal records are generally kept private. FYI: The normal age of these defendants is under 18, but juvenile court does not have jurisdiction in cases in which minors are charged as adults.

To Be Confronted with Witnesses:

Some courts are currently wrestling with the issue of whether victims who are not emotionally prepared to testify directly in front of their accusers can testify on closed-circuit television instead. This is particularly tempting in cases of child abuse, where the victim--already asked to courageously speak about a traumatic event on the record and in public-could be intimidated into silence by the perpetrator's presence.

Assistance of Counsel:
Everyone tried for a criminal offense is given the right to an attorney. Public defenders, who take on the cases of those who can't afford private lawyers, are often overworked, and underpaid. Attorney/Client Privilege: statements made by a client to his/her lawyer are confidential

Gideon V Wainright (1964)

landmark case that established that the accused has the right to an attorney even is he/she cannot afford one Gideon, accused of a felony in Florida, requested the assistance of a lawyer. The Florida criminal justice system allowed free assistance only in cases that were punishable by death. Gideon defended himself and lost The Supreme Court ruled that his Six Amendment due process rights made applicable by the Fourteenth Amendment were denied

THE SEVENTH AMENDMENT

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

In a Nutshell:
The Seventh Amendment requires JURY trials in civil lawsuits where ordinary damages (legal damages that a jury or judge awards a plaintiff to "compensate" them for their legal losses) are sought. ex. hurt in a car accident, fall down in the parking of Wal-Mart No Jury for Divorces: A jury is not required in family law cases (such as divorce and custody cases). No Consensus Required: A simple majority is enough.

THE EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Since sometimes convicts are poor, the issue of excessive fines is central to our criminal justice system

The Ninth Amendment

protects implicit rights hinted at but not specified elsewhere in the Constitution. Implicit rights include the right to privacy, basic unspecified rights such as the right to travel and the right to the presumption of innocence.

The Tenth Amendment

powers not granted to the federal government nor prohibited to the states by the Constitution are reserved to the states when the Bill of Rights was originally, it only applied to federal lawthe fourteenth amendment extended the Bill of Rights to both state and federal law