Right to Keep and Bear Arms

-The Second Amendment has been interpreted as the right of individuals to own weapons.

-The National Rifle Association has become a primary interest group in supporting the gun enthusiast and hunter’s right to purchase and use arms.

-This amendment has produced a national debate over the meaning of the Second Amendment as shown in the following questions.

1. Should registration and a waiting period be required for a person to own recreational guns?

2. Should certain types of arms such as assault weapons be banned?

Key Court Cases:

-United States v Miller (1939)- This case determined that a section of the National Firearms Act of 1934 was constitutional because it did not have any link to a state militia. This was changed as a result of the passage of The Brady Bill in 1993. This placed restrictions on handgun registration, setting up a minimum waiting period before purchase.

Right of Privacy

-Third and Fourth Amendments deal with such issues as search and seizure and the right of privacy.

-These amendments prevent the unrestricted quartering of soldiers, blanket search warrants, and unlimited invasion of privacy by the government.

-There have been no Supreme Court cases involving the Third Amendment.

-The key criterion in determining the legitimacy of the search is probable cause. That becomes the first component of the due process rights of individuals.

-An exception to the probable cause component is the “plain view” characteristic which allows police to obtain evidence that is in sight of the investigators.

Key Court Cases:

Mapp v Ohio (1961)- Determined the exclusionary rule which determined that police may obtain only that evidence available through a legitimate search warrant.

Katz v United States (1967)- Congress set down allowable procedures for wiretapping in a crime bill passed in 1968, which allowed federal and state officials to use the procedure with probable cause.

Roe v Wade (1972)- Supreme Court ruled that abortions are constitutionally protected.

Right of Procedural Due Process

-Procedural due process can be viewed as a series of steps established by the Fifth, Sixth, and Seventh Amendments that protect the rights of the accused at every step of the investigation and limit how governmental power may be exercised.

-Steps: The manner in which evidence is gathered, the charges made by the police upon arrest, the formal indictment and interrogation, the trial, and the right to confront witnesses.

-Has the right to post bail.

Key Court Cases:

Escobedo v Illinois (1964)- Supreme Court ruled Escobedo’s due process rights of self-incrimination and right to counsel were violated. He was denied a lawyer at the police station and made a number of incriminating statements that were used against him in court.

Gideon v Wainright (1964)- Established that the accused has the right to an attorney even if he or she cannot afford one.

Miranda v Arizona (1966)- Established the Miranda Rights. Those rights directed the police to inform the accused upon arrest that he has a constitutional right to remain silent, that anything said can be used in court, that 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.

Undefined Rights

-Ninth Amendment guarantees that those undefined rights not listed anywhere in the Constitution cannot be taken away. Such issues as abortion and the “right to die” have come under the umbrella of this amendment.

-The Tenth Amendment extends to the states the right to create laws for the best interest of their people.

Key Court Cases:

United States v Lopez (1995)-Supreme Court ruled that Congress misused its authority in enacting the Gun-Free School Zone Safety Act, which made the possession of a gun within 1000 yards of a school a federal crime.

Cruzan v Missouri Department of Health (1990)- Supreme Court ruled that a “living will” is a legitimate document that can be used to direct a hospital to “pull the plug” of a patient. In a 9-0 decision, the Court decided that states have the right to make laws banning physician-assisted suicide.

Vocabulary Ch. 5

Indictment- a formal list of charges made by a grand jury and guaranteed in the Fifth Amendment.
Judicial Federalism- the extension of the Bill of Rights to the citizens of the states, creating a concept of dual citizenship, wherein a citizen was under the jurisdiction of the national government as well as the state governments.
Libel- Published material meeting three conditions: The material is defamatory either on its face or indirectly; The defamatory statement is about someone who is identifiable to one or more persons; and, The material must be distributed to someone other than the offended party; i.e. published; distinguished from slander.
Living Will- a legitimate document that can be used to direct a hospital to allow an individual to direct a medical facility not to use extraordinary means such as life support to keep a patient alive.
Miranda Rights- those rights directing police to inform the accused upon their arrest of their constitutional right to remain silent, that anything said could be used in court, that they have the right to consult with a lawyer at anytime during the process, that a lawyer will be provided if the accused cannot afford one, that the accused understands these rights, and that the accused has the right to refuse to answer any questions at any time and request a lawyer at any point.
Prior Restraint- is a legal term which refers to a government's actions that prevent materials from being published. Classic systems of censorship, in which a person must seek governmental permission in the form of a license or imprimatur before publishing anything, involve prior restraint every time permission is denied.
Procedural Due Process- a series of steps that are established by the Fifth, Sixth and Seventh Amendments that protect the rights of the accused at every step of the investigation.
Separation of Church and State- also known as the “establishment clause,” it is part of the First Amendment to the Constitution prohibiting the federal government from creating a state-supported religion.
Slander- A false defamation (expressed in spoken words, signs, or gestures) which injures the character or reputation of the person defamed; distinguished from libel.
Substantive Due Process- legal process that places limits related to the content of legislation and the extent government can use its power to enact unreasonable laws.
Symbolic Speech- form of free speech interpreted by the Supreme Court as a guarantee under the First Amendment to the Constitution, such as wearing a black armband to protest a governmental action or burning an American flag in protest for political reasons.
Writ of Habeas Corpus- a right of that cannot be taken away by government. It directs the police to show cause why a person may be held for a crime.