Bill of RightsEverything but the First Amendment!

2nd AmendmentThe Right to Bear Arms

2nd Amendment: The Right to Keep and Bear

Arms A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Included to protect the right of states to form militias and to ease the fears of those who worried about the power of a standing army controlled by the federal government.

Disagreement: Gives us the right to own all kinds of firearms Intended only to protect the rights of state to form

militia units, and that the govt can place limits on gun ownership

United States v. Miller (1939)

Court upheld a law that placed restrictions on possession of automatic weapons and sawed-off shotguns.

Court ruled that 2nd Amendment not meant to protect right to have ALL types of weapons – instead only those guns that might be used by people in a militia.

Heller v. Washington, D.C.

District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating all legal firearms must be kept unloaded and disassembled or trigger locked Private gun-owners sued For the first time in over 70 years, the Supreme Court

agreed to hear a 2nd Amendment case.

5-4 decision, Court decided that 2nd Amendment DOES protect an individual right to possess a firearm unconnected with service in a militia and to use that firearm for things like self-defense within the home.

3rd Amendment Why do most Americans forget about this one today?

Fourth Amendment

4th Amendment: A Big Deal

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated…”

AND

“…no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”

Unreasonable searches & seizures

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated…”

What is unreasonable? Warrantless searches without probable cause Basic test: reasonable expectation of privacy

Different in your home, car, work – how? What does search & seizure involve?

Search = Any time government officials interfere with an individual’s reasonable expectation of privacy.

Seizure = Any time government meaningfully interferes with an individual’s freedom of movement. If a reasonable person believes he or she was not free to leave, then the 4th Amendment kicks in.

Some terms Probable Cause = Reliable knowledge that the

suspect either has or is about to commit a crime. More than a “hunch” but less than “beyond a

reasonable doubt.” Search Warrant – document that gives police legal

authority to search private property. Government can only issue after authorities have

proved to a judge there is probable cause for a search. Must describe what will be searched and seized.

Search Warrants Needed to enter and search a building without the

owner’s consent. Can enter in emergency situation without warrant but

MUST follow strict rules: Only search for evidence directly related to crime being

investigated. May seize any other evidence but ONLY if in plain view. Arizona v. Hicks – police found expensive stereo

equipment in apartment they entered without warrant. After moving equipment to locate serial numbers, they figured out it was stolen. Warrantless search without probable cause – could not use as

evidence.

Exclusionary Rule States that evidence obtained illegally may not be

used against a person in court.

Pedestrians and Cars Police can stop someone on basis of reasonable

suspicion Once stopped, may frisk the person if concern for

safety of police officer or others To find concealed weapons but other evidence can be

seized Must show probable cause to arrest the person.

Can stop drivers committing traffic violations Can seize evidence in plain view May search any place within reach or control of the

vehicle’s occupants. Sometimes can search the trunk without a warrant.

Electronic Communications

Fourth Amendment protects a person’s “papers.” Does this apply to the telephone, Internet, etc.? In Katz v. United States (1967), Court ruled that 4th

Amendment protects a person’s privacy as well as his or her personal space. Wiretapping usually requires warrant based on

probable cause.

Electronic Communications:

PATRIOT Act Post September 11th, 2001, PATRIOT Act gave law

enforcement agencies wide power to prevent future attacks. More freedom to search telephone and e-mail,

business, medical, library records Monitor telephone calls, e-mails, other

communications to U.S. residents made by people outside U.S. with suspected terrorist links. Without warrants Does this give officials too much power?

Weakens important civil liberties protection

Testing for Drugs Private employers: have freedom to test their

workers in order to discourage drug use.

Governments: cannot test all employees to screen for drug use. CAN test employees whose jobs may affect public

safety like airline crews, bus and truck drivers, or railroad workers.

Protection for Students Public school students have fewer protections than

the general population. A school’s need to ensure a safe learning

environment can override privacy concerns.

We will look at some cases!

Reasonable / Unreasonable

Searches Reasonable if:

Police have a search warrant (probable cause needed to obtain). Individual has been lawfully arrested

Other reasonable searches: Sobriety checkpoints Border crossings Airport searches Drug testing Student searches Consent searches

Home searches are very strict – cannot come in without a warrant.

Exceptions to Warrants (1) Automobile Exceptions

Don’t need a warrant – cars move – by the time you’d get a warrant, it would be gone.

Can search cars as long as it’s not part of general crime control (like dogs sniffing around cars for drugs is NOT OK). Can stop cars at borders looking for aliens, sobriety checkpoints,

routine checks for licenses and registration. If pulled over for having a taillight out, they can search car if

reasonable cause. Traffic violation gives them the right to search whole car,

including trunk. Reduced expectation of privacy b/c you know people see

you as you drive Probable cause is easily manufactured here!

Exceptions to Warrants (2) Searches following a lawful arrest – most

common search without warrant Hidden weapons or evidence may be destroyed

otherwise

(3) Searches for evidence Even if arrest hasn’t been made yet, as long as there

is probable cause for it, police can conduct limited searches to preserve evidence like scrapings under fingernails.

If in “hot pursuit” of suspect, can enter building without warrant.

Exceptions to Warrants (4) Border searches – people and belongings may be

searched when crossing a border into the U.S. (5) Plain view exceptions – evidence in plain view of

officer may be seized without warrant. (but not if he forced himself into home illegally)

(6) Exigent circumstances – urgent/critical/emergency situations If evidence is about to be destroyed because a house is

burning or criminal is about to escape capture, officer doesn’t have time to get warrant.

Emergency – entering building after bomb threat, smelling smoke, hearing screams

Exceptions to Warrants (7) Consent – person giving consent must be

authorized Parents – yes Landlords and roommates – no

(8) Sobriety Checkpoints – may stop all motorists or every “xth” one

Exceptions to Warrants (9) Terry Exception – Terry v. Ohio (1968)

Warrantless search OK if officer suspects individual of engaging in unusual activity and “believes that a crime may be imminent.”

Limited to a quick pat down to check for weapons or contraband to determine identity or to allow time to question suspect. If evidence is found, may conduct full search.

Created to protect officers and innocent bystanders.

Exceptions to Warrants (10) Student Searches

Probable cause not required – just need “reasonable suspicion”

Still has to be reasonable

(11) Airports Danger of bombs, hijacking

Exclusionary Rule Evidence gathered illegally cannot be used in a

trial Old Argument – if evidence is valid, it is admissible.

Makes no sense that the criminal goes free because the “constable has blundered.”

Crime control model – purpose of system is to punish criminals.

Due Process Model – purpose of the system is to insure proper procedure.

Arguments for the Exclusionary Rule

It discourages officials fro violating the law. It makes sure that the courts obey the law. It rarely results in criminals being set free. It makes the point that the government is not above

the law. Forces police departments to train officers better.

Arguments Against the Exclusionary Rule

Punishes society and prosecutors for errors of the police. People who benefit most directly from the rule are those

looking to exclude incriminating evidence. It is not reasonable to exclude reliable evidence of a crime. There are better ways to make officers obey the law. The rule encourages police lawlessness. The rule breeds disrespect for the courts. Thousands of criminals go free. The rule does not protect innocent people.

Exceptions to the Exclusionary Rule

If police act in good faith (believe the warrant is valid), evidence may be valid even if warrant is not.

Illegally obtained evidence is permitted if it would have “inevitably been discovered” by lawful means.

Evidence seized improperly as a result of an “honest mistake” by police may be used at trial.

Fifth Amendment

Fifth Amendment:Due Process of Law

“No person shall…be deprived of life, liberty, or property, without due process of law…”

Due process requires that government act fairly and reasonably in accordance with established laws. Limits government’s police power

Fifth Amendment:5 Rights

(1) People cannot face trial for most federal crimes without first facing a grand jury. (decides if enough info for indictment)

(2) Can’t be subject to the same offense twice (double jeopardy)

(3) Can’t be compelled to be a witness against self (self-incrimination)

(4) Can’t be denied of life, liberty, or property without due process of law

(5) Private property can’t be taken for government use without just compensation (eminent domain)

Sixth Amendment

6th Amendment:Rights of the Accused

Right to speedy and public trial Right to a lawyer Right to an impartial jury Right to know who your accusers are (right of

confrontation = right to be present at trial and cross-examine the witnesses)

Right to compel favorable witnesses to testify at trial Right to know the nature of the charges and evidence

against you

7th Amendment Deals with civil cases (not criminal like the Sixth

Amendment) Says that a person sued in any amount exceeding

twenty dollars has the right to a trial by jury. Applies only to federal court But most states also call for jury trials in civil cases

Eighth Amendment

8th Amendment “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.”

Most often mentioned in the context of…The Death Penalty

What do YOU think “cruel and unusual” punishment means?

Let’s do an activity

9th Amendment: Rights Retained by the People

Remember the Federalists’ arguments against a Bill of Rights?

One of them was that if we list certain rights, it would be assumed that those were the only important ones.

The 9th Amendment says that just because we have listed (enumerated) certain rights in the Constitution, that this does not mean we can be denied other rights.

10th AmendmentThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This means that the people (states) retain all powers not given to the national government.

***This is the whole idea of FEDERALISM we discussed earlier this year!!!