1. Civil Liberties Chapter 10
Protecting Individual Liberties and Crime and Punishment Sections 3 & 4

2. Section 3 at a Glance Protecting Constitutional Rights
The Second Amendment protects the right to keep and bear arms. The Third and Fourth Amendments guard the rights to security of home and person.
The Supreme Court has interpreted the Constitution as protecting a right to privacy.
The Constitution’s guarantees of due process require that government act in accordance with fair and public laws in whatever it does.

3. The Right to Keep and Bear Arms
Second Amendment, one of most heavily debated amendments today
Included to protect rights of states to form militias, ease fears of those worried about standing army controlled by federal government
— Some believe this protects individual right to own all kinds of firearms
— Others believe amendment only protects rights of states to form militias
Only one major Supreme Court ruling
1939, United States v. Miller: Court upheld law placing restrictions on possession of some types of guns often used by criminals
Said amendment protected only guns that might be used by people in militia
Since Miller, Supreme Court has not addressed issue of gun control
— Some lower courts have made decisions on gun control laws

4. Security of Home and Person
The Third Amendment
British military sometimes quartered—housed—soldiers in colonists’ homes
Sometimes paid for food, shelter; often did not
Declaration of Independence listed quartering of troops among many American complaints against British
Third Amendment forbids government from housing troops in private houses during times of peace without consent of owner
During war, troops can only occupy private houses as prescribed by law
Military forces cannot simply take over house without due process
Today the Third Amendment is largely forgotten by most Americans. Forced quartering of troops has never been the subject of a Supreme Court case.

5. Security of Home and Person {continued}
The Fourth Amendment
Fourth Amendment also result of hated British practice in colonial times: use of writs of assistance
Writ, a legal document that gave British authorities wide power to search private homes, businesses
Could conduct searches without probable cause, strong likelihood they would find evidence of a crime
Fourth Amendment written to protect Americans against such abuses, has proved to be important guarantee of personal security
Search and Seizure
Fourth Amendment also forbids “unreasonable searches and seizures”
Sets terms for issuing search warrant, document giving police legal authority to search private property
Government can issue search warrant only after authorities have proved to a judge there is probable cause for a search
Warrant must describe what will be searched, seized

6. Officials can enter in emergency without warrant, must follow strict rules
Only search for evidence directly related to crime being investigated
May seize other evidence only if it is in “plain view”
1987, Arizona v. Hicks: “plain view” did not extend to serial numbers
1914, Weeks v. United States: evidence obtained illegally may not be used against person in court; known as exclusionary rule
1961, Mapp v. Ohio: conviction overturned because evidence seized in illegal search
Fourth Amendment does not always require police to obtain warrant
Person’s right to be free does not reach outdoors
Police can search through person’s trash without warrant

7. Security of Home and Person {continued}
Pedestrians and Cars
Legally speaking, stopping a person considered a seizure
Police can stop someone on basis of reasonable suspicion
Once stopped, police may search person if there is concern for safety of police officer, others
To arrest, police must be able to show probable cause
Fourth Amendment relates to stopping, searching vehicles
Can stop, search autos without warrant under some circumstances
Can stop drivers observed committing traffic violations
May seize evidence in plain view, search any place within reach or control of vehicle’s occupants
In some cases may also search auto’s trunk without warrant

8. Security of Home and Person {continued}
Electronic Communications
Fourth Amendment protects person’s “papers”
Courts have had to decide if this applies to new means of communication—telegraph, telephone, Internet
1928, Olmstead v. United States: wiretapping not illegal search
1967, Katz v. United States: Court reversed self; wiretapping now requires probable cause warrant
Post-9/11, USA PATRIOT Act gave law enforcement agencies more freedom to search telephone, communications, business, medical, library records
2007: parts of act struck down; gave officials too much power to search phone, Internet records without court oversight
2005: NSA secret program monitoring communications prompted debate of violations

9. Security of Home and Person {continued}
Testing for Drugs
Courts have held private employers have wide freedom to test their workers to discourage illegal drug use
Governments face limits in ability to test their workers
Can test employees whose jobs may affect public safety—pilots, drivers
Testing for Drugs
Supreme Court: public school students have fewer Fourth Amendment rights than general population
Court has ruled school’s need to ensure safe learning environment can override privacy concerns
School officials may search for drugs, weapons, randomly test student athletes for drugs, require other students participating in extracurricular activities be tested for drugs

11. Due Process of Law Procedural Due Process Substantive Due Process
The concept of due process is key to the protections provided by the Bill of Rights. Due process requires that government act fairly and reasonably in accordance with established laws. Due process limits government’s police power, or its ability to regulate behavior for the common good.
Procedural Due Process
Procedural due process: certain procedures must be followed before punishing person
1979, Mackey v. Montrym: state can take away driver’s license if driver refused breath test; penalizing without finding guilty
Getting drunk drivers off road strong enough reason to deny due process
Substantive Due Process
Substantive due process: concerns whether laws themselves are fair and just
Based on idea that people have rights that cannot be taken away, even by laws passed properly
1873, Slaughterhouse Cases: dissenting opinion became basis for later rulings on due process

12. Section 4 at a Glance Crime and Punishment
The Constitution protects rights of people accused of crimes, including the right to a fair trial.
People convicted of crimes also have certain rights. The Constitution prohibits government from imposing excessive fines or cruel and unusual punishments.

13. Protections for the Accused

14. The U.S. Justice System Types of Law
The basic freedoms to think and to act as we choose are guarded by the U.S. justice system, which also provides protections for persons accused of crimes and for those convicted of crimes. The justice system seeks fair and impartial outcomes for disputes of all kinds. It follows rules and guidelines to resolve lawsuits, criminal trials, and other disputes.
Types of Law
Law commonly classified into two categories
Civil law covers private disputes between people over property, relationships
People who violate civil law often fined, otherwise punished, not imprisoned
Criminal law is system for dealing with crimes, punishments
People who violate criminal law may be fined, imprisoned, even executed

15. The U.S. Justice System {continued}
Criminal Law
— Deals with crime, offenses against public
— Crime occurs when person breaks local, state, federal law
— Misdemeanor crimes, relatively minor offense; traffic, petty theft
— Felony crimes, more serious; murder, sexual assault, grand theft
Criminal Case Processes
— 5th Amendment guarantee: cannot face trial for most federal crimes without first facing grand jury
— Grand jury decides if enough evidence to charge person with crime
— Issues formal complaint, indictment
— Accused arrested, taken into custody
— Pretrial hearings
— Plea entered

16. The U.S. Justice System {continued}
Criminal Case Processes (cont’d.)
— Bail—money pledged by accused as guarantee he/she will return for
trial—may be set
— Plea bargain may be reached
— If trial proceeds, complex process begins
Jury Trial
— Jury selection comes first
— Prosecution and defense each offer evidence, witnesses
— Judge or jury decides case
— Either side may appeal decision to higher court
— If defendant found guilty, sentencing takes place at separate hearing
— Sentences depend on severity of crime: probation, prison time,
capital punishment—punishment by death—most severe sentence

17. Rights of the Accused Habeas Corpus
In our justice system, we presume that people accused of crimes are innocent until proven guilty beyond a reasonable doubt. Balancing the rights of the accused with the need to protect society from criminals is a major challenge.
Habeas Corpus
Writ of habeas corpus, legal order requiring imprisoned person to be brought before court so judge may determine whether or not imprisonment is legal
Important protection against government abusing police power
Has received much attention in aftermath of 9/11
Many suspected terrorists held several years after capture with no formal hearing, judicial process
2004, Hamdi v. Rumsfeld and Rasul v. Bush: unlawful enemy combatants do have limited rights to challenge imprisonment
2006: Congress passed law establishing tribunal system

19. Rights of the Accused {continued}
Habeas Corpus
Fifth Amendment includes guarantee people cannot be tried for most federal crimes without first being indicted by grand jury
Some states do not have grand jury system
Criminal charges brought by prosecutor in an information
Self-Incrimination
Fifth Amendment protects accused from witnessing against him/herself
Protection covers any government proceeding that might lead to criminal charges; covers only spoken testimony
Government can get people to testify against selves by granting immunity
1966, Miranda v. Arizona: questioning suspects without giving right to consult with
attorney violates Fifth Amendment

21. Rights of the Accused {continued}
Bail
Eighth Amendment: “excessive bail shall not be required”
Not all must be allowed to post bail
Some charged with crimes like murder not allowed to post bail
Bills of Attainder
Bill of attainder declares person guilty; takes away right to trial
Constitutionally prohibited from being passed by states, Congress as violation of separation of powers
Ex Post Facto Laws
Ex post facto laws apply to events in past; outlawed by Constitution
If not prohibited, such laws would make it possible to punish person for actions legal at time committed
Victims’ Rights
Some feel Constitution does not sufficiently protect victims of crimes
Victims’ rights laws defend right to be treated with fairness, respect; be present at court proceedings, informed of outcome of trial

23. Landmark Supreme Court Cases Miranda v. Arizona (1966)
Why It Matters:
Miranda v. Arizona protects the rights of criminal suspects during police interrogations. Suspects in police custody must be informed of their rights before questioning.

24. Punishment
The Constitution includes protections for those convicted of crimes. The Framers were anxious to protect the American people from possible abuse of government powers.
Excessive Fines
— Eighth Amendment: prohibits government from imposing excessive fines
— Limit applies only to government, not jury awards in civil cases
Cruel and Unusual Punishments
— Eighth Amendment bans cruel and unusual punishments
— Supreme Court has never defined “cruel and unusual”
— Debate has figured into numerous cases involving death penalty

25. Punishment {continued}
Capital Punishment
Death penalty practiced at time Bill of Rights written
Supreme Court has consistently ruled capital punishment constitutional
Number of crimes for which capital punishment applied reduced
Court focused on just application of penalty
1972, Furman v. Georgia
1976, Gregg v. Georgia
Most states allow death penalty
Many Americans concerned about how fairly penalty is applied
New technology has helped prove innocence of some convicted criminals
Lethal injection has become the subject of controversy, particularly over whether or not it constitutes cruel and unusual punishment.

27. Vocabulary
Probable Cause
The strong likelihood that a search would find evidence of a crime
Search Warrant
A document that gives police legal authority to search private property
Exclusionary Rule
the rule that evidence obtained illegally may not be used against a
person in court
Police Power
the government’s ability to regulate behavior for the common good
Procedural Due Process
legal expectation that government follow certain procedures before punishing a person
Substantive Due Process
legal expectation that laws are fair and just
Civil Law
category of law that covers private disputes between people over property and relationships
Criminal Law
category of law that deals with crimes and their punishments
Indictment
a formal complaint of criminal wrongdoing issued by a grand jury
Bail
money pledged by the accused as a guarantee that he or she will return to court for trial

28. Vocabulary
Capital Punishments
Punishment by death
Miranda Warnings
A list of certain constitutional rights possessed by those accused of crimes
Bench Trial
A trial in which the judge alone hears and decides a case
Double Jeopardy
Restriction on trying a person twice for the same offense