Protecting Our Freedoms The Bill of Rights Protecting Our Freedoms

What is the Bill of Rights? The Bill of Rights is made up of the first 10 amendments to the Constitution. The Bill of Rights defines US citizens freedoms and protects them from the powers of the US government. The B of R was passed as a group of 10 in 1791

The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of people to peaceably to assemble, and to petition the government for a redress of grievances.

The First Amendment: List of Rights Congress cannot: establish a religion interfere with my choice of religion limit my free speech limit my free press limit my right to assemble limit my right to petition the government

Key Event: Bethel School District v Fraser 1986 Background Question: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?

Key Event: Bethel School District v Fraser 1986 Decision 7-2 No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly.

NOTES: Establishment Clause verses Free Exercise Clause Government may not establish an official religion, nor favor one religion. Government may not support religious activities. Free Exercise Clause Government cannot interfere with your exercise of religious beliefs. Can these 2 clauses conflict with each other?

Key Event 2: Lemon v Kurtzman 1971 A Pennsylvania Law called the Nonpublic Elementary and Secondary Education Act reimbursed all private schools for teacher pay, books, instructional materials. Is it a violation of the establishment clause?

Lemon v Kurtzman 1971: The Lemon Test The government's action must have a secular legislative purpose; The government's action must not have the primary effect of either advancing or inhibiting religion; The government's action must not result in an "excessive government entanglement" with religion.

THE SECOND 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.

The Second Amendment: List of Rights I have a right to own a weapon. form a militia.

Second Amendment First Thoughts Do you plan to or currently own a gun? Any Questions? Thoughts? Do you plan to or currently own a gun?

Key Issue Does 2nd Amendment Protect… Individual right to bear arms…? If you do not include the part before the comma after the word State, does it change the meaning? Does 2nd Amendment Protect… Individual right to bear arms…? State’s right to raise a militia…?

Key Event: Washington DC v Heller (2008) http://www. oyez Background Question: Does the District of Columbia’s law banning hand-gun ownership and limiting use by licensed officials violate the 2nd Amendment?

Key Event: Washington DC v Heller (2008) http://www. oyez Decision 5-4 The DC Law does violate a Constitutional right to own a handgun for self-protection.

DC v Heller (2008) From Justice Scalia’s majority opinion: “that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense.”

in time of peace be quartered in any house, without the Third Amendment No Soldier shall be in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner prescribed by law.

3rd Amendment: List of Rights I cannot be forced to provide food and shelter to a soldier during peacetime. I can be forced to provide food and shelter during war time, if there is a law passed by Congress that says so.

Third Amendment First Thoughts Any Questions? Thoughts?

NOTES: (put at bottom of page) 2 Key Issues possible expanded meanings Part of implied intention by our founders to allow for less individual freedom during times of war. Suspension of habeas corpus during Civil War, suspension of free speech during WW1, and Japanese Internment Camps during WWII Part of an implied right to privacy? Griswold v Connecticut, 1965 contraceptive case Part of a penumbra of rights that are implied by the Bill of Rights.

3rd amendment key event: Engblom v. Carey, 1982 The case was decided in US Court of Appeals, NOT Supreme Court. Background: Prison guards went on strike in New York state at Mid-Orange Correctional Facility. The guards lived in dorms on prison grounds, for most guards this was their only home. During the strike they were locked out of their rooms and the rooms were given to National Guardsmen called in to man the prison during the strike.

Engblom v. Carey, 1982 Questions before the Court: Are National Guardsmen legally considered as soldiers under the Third Amendment? Does the amendment applies to state as well as federal authorities? Does the protection of this amendment extends beyond home owners?

Engblom v. Carey, 1982 Decisions: The National Guardsmen legally qualify as soldiers. The amendment applies to state as well as federal authorities. (Incorporation) Yes, the protection of this amendment extends beyond home owners. Tenants, renters, and any other non-owner is protected.

Fourth Amendment 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 warrants 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.

Rights Protected I am… Secure in persons, houses, and effects. Protected from unreasonable searches and seizures. Protected from warrants being issued to search my property without probable cause.

Key Event: Illinois v Wardlow 2000 http://www. oyez Background? Is a person's sudden and unprovoked flight from identifiable police officers, patrolling a high crime area, sufficiently suspicious to justify the officers' stop of that person?

Illinois v. Wardlow Decision Court does not issue a decision either for or against flight being enough to justify a stop and search. ONLY says it can be an important factor in determining if the stop and search is necessary. US v. Arvizu (2002) “totality of circumstances”

NOTES: EXCLUSIONARY RULE Any evidence obtained during an illegal search or seizure is inadmissible in a trial. “the criminal is to go free because the constable has blundered”; Do we need this? It only protects the guilty…

Fun Bonus Facts: Allowable warrentless searches During a lawful arrest In Plain View (in car seat or public view) Hot Pursuit Cars Exigent Circumstances (emergency)

Fifth Amendment No person shall be held to answer dory 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 the limb; nor shall be compelled in any criminal case, to be witness against himself, nor to be denied right to life, liberty, and property, without due process of law; nor shall private party be taken for public use without just compensation.

Listed rights Capital crimes are charged by Grand Jury. Protected from being charged twice for the same crime. You can’t be forced to incriminate yourself. Protected by due process Just compensation for property taken by government.

5th Amendment: Key Issue Just compensation and Due Process with regard to property. The issue here is, what is a legitimate government interest in seizing private property. We all agree that homes must be taken for roads, parks, etc… But, Can a government use eminent domain to seize a home for, say, a movie theater or Wal-Mart?

KEY EVENT: Miranda v Arizona (1966) http://www. oyez Background? Question: Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment?

Miranda v Arizona (1966) Decision 5-4 The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations.

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 witness against him; to have compulsory process for obtaining witnesses in his favor, and to have assistance of counsel for his defense.

You have the right to… Speedy trial Public trial Impartial jury in community Be informed of your accusation Face your accuser Power to bring witnesses Right to have counsel (lawyer)

Powell v Alabama (1932) Johnson v Zerbst (1938) Betts v Brady (1942) Key Issue: An example of precedents Establishment of ‘right to counsel’ It is important to understand that the Supreme Court often works slowly toward protecting rights, each of these cases improves the right to counsel provision toward giving us our key event. Powell v Alabama (1932) 9 black men, accused of raping 2 white women on a train, given a one day trial, all sentenced to death, met their lawyers after cases were heard. In capital cases, states must provide counsel for your trial. Johnson v Zerbst (1938) At FEDERAL level, every person charged with a felony is required to have a lawyer appointed to represent them. Betts v Brady (1942) At state level, in noncapital cases the defendant is only entitled to a public defender if the defendant is mentally handicapped.

KEY EVENT: Gideon v Wainwright (1963) Background? Questions: Did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments?

KEY EVENT: Gideon v Wainwright (1963) “lawyers in criminal cases are necessities, not luxuries” Establishes right to counsel for defendants in all felony cases at state level, not just capital. Gideon had spent 2 years in prison for a crime he did not commit.

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 re-examined in any Court of the United States, than according to the rule of common law.

Rights Protected: Trial by Jury in nearly all civil cases. Judges can never overturn decision of a jury

Key Issue: Lack of Incorporation REMEMBER: The Bill of Rights was written to protect you and I from the National Government, since the 14th Amendment was ratified with its due process clause that applies to the States, we have had the B of R, applied to State piece by piece, yet a few remain including the 7th The right to a jury trial in civil cases has never been applied to the states. States do not have to give you a trial by jury in civil cases.

Key Event: Colgrove v Battin (1973) http://www. oyez Background? Montana Federal Judge allows for a 6 person jury in a trial, rather than a 12 person jury. Question:Does the Seventh Amendment guarantee the size of a jury?

Key Event: Colgrove v Battin (1973) http://www. oyez No. The Seventh Amendment does not guarantee the size of a jury. The Court held that the framers of the Constitution intended the Seventh Amendment to preserve the right to trial by jury in civil cases at law, but not the various incidents of trial by jury, and that the Constitution does not bind the federal courts to the exact procedural details of jury trial according to the common law in 1791. The Court held that the right to a 12 member jury was not a substantive aspect of the right of trial by jury. The Montana rule did not violate the right of a jury trial at common law and it did not conflict with Rule 48.

8th Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted.

8th Amendment Rights Protected: I have the right not to… be forced to pay excessive bail pay excessive fines be punished cruelly/unusually EVOLVING STANDARD***

Key Issue: Bail You do not have a right to bail. Excessive would be more than an amount necessary to ensure accused presence at a trial Can be denied bail by anticipation of possibility that accused may flee in capital cases.

Cruel and Unusual Punishment? What is Cruel and Unusual Punishment?

Modern Death Penalty Enforcement Lethal Injection Gas Chamber Electrocution Hanging Firing Squad

Key Issue 2: Death Penalty since 1976 3 People killed by Federal Government Timothy McVeigh is most recent 1,119 people executed by State Governments (38 of 50 have D.P.) 463 by Texas, 108 by Virginia, 23 by Arizona (13th Place) Over 600,000 Americans have been murdered in same time period Over 3,300 Americans on Death Row Today

Race of Homicide Victims in Cases Resulting in an Execution since 1976

Crimes receiving Death Penalty in American History (last time used) Rape – 1964 Kidnapping – 1960 Assault – 1962 Espionage – 1953 Arson – 1884 Burglary – 1941 Horse Theft - 1851 Forgery – 1840 Treason – 1862 Witchcraft - 1779 Murder - 2008

Key Event: Roper v Simmons 2005 Background? Question: Does the execution of minors violate the prohibition of "cruel and unusual punishment" found in the Eighth Amendment and applied to the states through the incorporation doctrine of the 14th Amendment?

9th Amendment The Enumeration in the Constitution of Certain Rights shall not be construed to deny or disparage others retained by the people.

Rights Protected? This is the catch all amendment. Americans have rights not listed in the Bill of Rights. Remember Federalists?

KEY EVENT: Griswold v Connecticut (1965) Background: 1879 Connecticut law: prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception." Estelle Griswold opens a Planned Parenthood clinic. Is arrested under this law, convicted in a trial, and fined $100. http://en.wikipedia.org/wiki/Image:Egriswold.jpg How would you decide?

KEY EVENT: Griswold v Connecticut (1965) 7-2 decision Majority 4: Cite a penumbra of rights suggested by 3rd,4th, and 5th Amends. Concurring 3: 9th Amendment includes possibility that right to privacy in bedroom is a Constitutional right. Dissent 2: Allow state legislatures to make laws they think are appropriate to govern local affairs.

10th Amendment The 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.

Rights Protected? Protects states OR people from excessive federal government power. Federalism!

KEY EVENT: Meaning of the Amendment The 10th Amendment is ABOUT: Federalism Power Voice McCulloch v Maryland Civil War Segregation Morality