AP Government Order & Civil Liberties: Bill of Rights

(3) Constitutional Protections of Rights The original version of the Constitution (before the Bill of Rights) mostly set up the three branches of government, but it also had some protections of citizens’ rights The Constitution barred the following: Bill of attainder – a law that pronounces an individual guilty of a crime without a trial Ex post facto laws – laws that declare an action to be criminal after it has been performed Impairing of the obligation of contracts -- the obligation of the parties to a contract to carry out its terms

(4) Selective Incorporation The 14 th Amendment’s Due Process Clause – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any State deprive any person of life, liberty, or property, without due process of law” Selective incorporation – applies elements of the Bill of Rights to states using the 14 th Amendment’s due process clause Not all provisions of the Bill of Rights have been applied to states by the Court (that is why it is “selective”) Palko v. Connecticut (1937) – only “fundamental rights” are applied to states using incorporation – “double jeopardy” is not one so Palko’s second conviction was upheld This led to an ongoing argument over what parts of the Bill of Rights are “fundamental rights” TEACHER’S LOUNGE

What was the other issue being dealt with by the Gitlow case?

(1) Gun Control and 2 nd Amendment 2 nd Amendment – “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” Gun-control advocates assert that the amendment protects the right of the states to maintain collective militias Gun-use advocates assert that the amendment protects the right of individuals to own and use guns Federal regulations on firearms did not come about until Prohibition in the 1920s Registration and licensing restrictions have generally been approved by the Court

District of Columbia v. Heller (2008) – ruled that there is a personal constitutional right to keep a loaded handgun and overturned a law that forbid handguns and loaded rifles and shotguns Heller case did not extend this protection to weapons beyond handguns like submachine guns or assault rifles, and it didn’t set a standard for future challenges to gun restrictions McDonald v. Chicago (2010) – overturned Chicago’s ban on handguns (and made clear the Heller case was not ruled that way just because of federal control of DC) Both cases are ones of selective incorporation (2) Rulings on the 2 nd Amendment

(5) Criminal Procedures Once the Court ruled that the Bill of Rights applied to states when it involved “fundamental rights,” then the Court had to define these fundamental rights or risk states having differing definitions The Court has also ruled there may be more than one way to prosecute the accused while heeding his or her fundamental rights Duncan v. Louisiana (1968) – ruled that the right to a jury trial guaranteed by the 6 th Amendment applied to states in all non-petty criminal cases (those with penalty of over 6 months imprisonment) It did not require all juries to be the same size and does not require a unanimous verdict

(5) Criminal Procedures Gideon v. Wainright (1963) – overturned the conviction of a man who was denied an attorney in Florida; thus incorporating a 6 th Amendment protection (Gideon was found not guilty following a retrial) Miranda v. Arizona (1966) – extended the 5 th Amendment protection against self- incrimination to states, preventing interrogations of arrested people without the ability to have a lawyer (“reading them their rights”) Wolf v. Colorado (1949) – it ruled security against arbitrary police intrusion was found to be a fundamental right, but states could fashion their own rules on how to handle evidence obtained in an illegal search Exclusionary rule – judicial rule that states that evidence obtained in an illegal search and seizure cannot be used in trial (did not apply to states according to the Wolf case)

(5) Criminal Procedures Mapp v. Ohio (1961) – in another case involving the exclusionary rule, the Court ruled that evidence obtained in an illegal search was not admissible (extending the exclusionary rule to states now) This decision creates a problem for law enforcement and the courts as more advanced surveillance tends to find clearly illegal evidence, and it is hard to not use it when guilt is clear U.S. v. Leon (1984) – established the good faith exception to the exclusionary rule, in which evidence seized on the basis of a mistakenly issued search warrant can be introduced in a trial if the mistake was made in good faith

(6) War on Terror and Civil Liberties USA-Patriot Act – law passed in October of 2001 following the 9/11 terrorist attack, which greatly expanded the ability of law enforcement and intelligence agencies to tap phones, monitor internet traffic, and conduct other forms of surveillance in pursuit of terrorists Many fear that the new powers in the USA-Patriot Act will lead to violations of civil liberties of citizens who are not terrorists

(6) Detaining of Terrorist Suspects Hundreds of foreign detainees suspected of being terrorists have been held at the naval base in Guantánamo Bay, Cuba The Supreme Court in 2004 made 2 rulings in relation to the rights of the detainees First, they are entitled to challenge their designation as “enemy combatants” which is the pretext for their captivity and lack of lawyers and hearings Second, a U.S. citizen found in Afghanistan and detained as an enemy combatant was given legal rights due to the 5 th Amendment In 2006, the Court rejected President Bush’s attempt to try these suspects in military courts and required their being allowed basic legal and human rights

(7) Reproductive Rights 9 th Amendment – “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” This amendment has been used to justify the protection of other rights, such as privacy and reproductive rights Griswold v. Connecticut (1965) – struck down a seldom-used state statute that made the use of birth control a crime Roe v. Wade (1973) – overturned a Texas law that made it a crime to obtain an abortion except for the purpose of saving a woman’s life Webster v. Reproductive Health Services (1989) – upheld a Missouri law that denied the use of public employees or facilities in providing abortions, which set the precedent that restriction to abortions may be legal