THE SECOND AMENDMENT ³The right of the people to keep and bear arms´
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THE SECOND
AMENDMENT
³The right of the people to keep and bear arms´
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PRESENT DAY
The Second Amendmenthas been interpreted to
meanthe right of INDIVIDUALS to own guns
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Due to the current day climate
of crime and violence
laws have been proposed restricting:
1. the availability of guns
2. the use of guns
3. the use of certain kinds of weapons
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This has resulted in a
national debate:Should registration and a waiting period be
required for a person to own recreational
guns?
Should certain types of arms such as assault
weapons be banned?
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NATIONAL FIREARMS
ACT OF 1934
provided for: 1)taxation and 2) registration of
automatic weapons and sawedoff shotguns
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COURT CASE IN REGARDS TO THE
SECOND AMENDMENT
UNITED STATES V MILLER
1939
first Second Amendment case to be heard by the Supreme
Court
noted that the Second Amendment did NOT protect the right
of CITIZENS to own firearms that were not ordinary militia
weapons
Miller, had been charged with possession of an unregistered
sawedoff shotgun; the Court noted that it had no evidence
that such a weapon constituted ordinary militia equipment
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United States v Miller
was a federal case
the regulation of arms has been a state matter
UNTIL............
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BR ADY BILL
1993
named after President Reagan¶s press
secretary
Brady was injured by a handgun in the
attempted assassination of the president
took more than 10 years to obtain
congressional approval
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The law
placed restriction on handgun registration,
setting up a minimum waiting period before
purchase
many states had to change their laws based
on this legislation
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In 1997, a Supreme
Court decision did:
strike down the part of the law forcing local
officials to perform instant checks
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The NR A
(The National Rifle Association)
lobbied AGAINST passage of the Brady Bill,
arguing that it would not stop criminals from
obtaining weapons
lobby: to urge the passage or non-passage of
a bill
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THE DISTRICT OF COLUMBIA
V
HELLER (2008)
the ONLY Supreme Court case to rule on the question of whether
the right to bear arms CONSTITUTIONALLY protects
INDIVIDUALS
challenged a Washington D.C. gun control law that banned guns in
the District and required any legal guns to be unloaded
in a 5-4 decision, the court ruled that the law was unconstitutionaland that the Second Amendment protected an INDIVIDUAL¶S right
to bear arms
still questionable, since the decision only applied to Washington,
D.C. and federal laws
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THE FOURTH
AMENDMENT
grants freedom from unreasonable searchesand seizures. This includes persons, houses,
papers, and effects
has come under the scrutiny of both the
federal and state governments in determininghow far then can go in obtaining evidence
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WHOM
does the Fourth Amendment
protect?
³The right of the people´ -- All those who live
under the protections of the Constitution.
Does that include ³citizens´? (yes).
Does that include children under 18? (yes).
How about undocumented immigrants? (yes).
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From WHAT
does the Fourth Amendment protect
those people?
³Against unreasonable searches or seizures´ by
the governmentIn determining what is an ³unreasonable´ search or
seizure, courts look to balance individual liberty
within the need to keep an ordered society.
Figuring out what is reasonable or unreasonable isone of the central challenges of the Fourth
Amendment.
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What about justified intrusions
by the government?
The second part of the Fourth Amendment
talks about ³no warrants shall issue but upon
probable cause.´ Probable cause=reason to
suspect you
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What is a warrant?
a formal document signed by a judge thatallows police to search or arrest you
Warrants allow law enforcement officers who
have reason to suspect you (probable cause)
to ask a judge for permission to interfere withyour privacy.
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Thus, if a search warrant
is supported by enoughevidence:
the government:
1. can search you
2. can search your house
3. or even arrest you
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³PROB ABLE CAUSE´
again, a reasonable belief that a crime has or is being
committed; the basis for all lawful searches, seizures and
arrests.
is a key factor in determining if a search is legitimate
applies to states
is the first component of due process
due process: the principle that the government mustrespect all of the legal rights that are owed to a person
according to the law. MORE TO COME ON DUE
PROCESS
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EXCEPTION
To
Probable Cause Component:
³plain view´ characteristic: allows police to
obtain evidence that is in sight of the
investigators
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MAJOR ISSUES
related to the
FOURTH AMENDMENT
To what extent can police conduct a search
with a warrant and obtain evidence found toprosecute an individual?
What methods can law officials use to obtain
evidence?
Can the right of privacy extend to social
issues, such as abortion?
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KEY COURT CASES
RELATED TO THE FOURTH
AMENDMENT
1. Mapp v Ohio (1961): police searched Dorlee
Mapp's house with a questionable search warrant
expecting to find evidence that would implicate asuspected bomber . Instead they found pornography
and arrested Mapp for possessing lewd materials.
Based on the 4th amendment, the Court created the
"exclusionary rule" protecting a citizen's privacy bymaking anything collected by unreasonable or illegal
search and seizure to be inadmissible as evidence in
a court.
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EXCLUSIONARY RULE
determined that police may obtain only thatevidence available through a legitimate search
warrant
other evidence found at the scene of the crime
is not admissible in the trial; it must beEXCLUDED
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EXCEPTIONS
to the
EXCLUSIONARY RULE
1. INEVITABLE DISCOVERY: evidence is
admissible at trial if the police would haveeventually discovered the illegally obtained
evidence through the course of their
investigation anyway
2. GOOD FAITH: evidence is admissiblefrom police officers who honestly believe that
they acted in compliance with the law
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(2) GRISOLD
V
CONNECTICUT
(1965)
the Court struck down a Connecticut law that
prohibited the use of contraceptives, after adoctor was arrested for distributing birth
control devices
using the privacy provision of the Fourth
Amendment, the Court stated that individualshad the right to privacy in the area of sexual
relations
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(3) ROE
V
WADE(1972)
using the concept of being ³secure in their persons´ from the
Fourth Amendment, the Supreme Court ruled that abortions
are constitutionally protected; it up a trimester system
first trimester: unrestricted abortions
second trimester: regulated abortions during this semester
third semester: allowed states to ban abortion unless themother¶s or baby¶s life was endangered
VERY CONTROVERSIAL AND FAMOUS CASE
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(4) UNITED STATES
VLEON (1984)
the Court created the ³good faith´ exception tothe exclusionary rule
allowed the introduction of illegally obtained
evidence where police can prove that the
evidence was obtained w/out violating the coreprinciples of Mapp V Ohio (1961)
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(5) PLANNED
P ARENTHOOD
V
CASEY(1992)
the Court upheld a Pennsylvania law requiringminors to wait 24 hours after receiving
parental approval before getting an abortion
as constitutional
also struck down a provision mandating thatwomen obtain ³informed spousal consent´
upheld, in principle, Roe V Wade (1972)
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THE FIFTH
AMENDMENTNo person shall be held to answer for a 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 limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without dueprocess of law; nor shall private property be taken
for public use, without just compensation.
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Due Process
refers to how and why laws are enforced.
It applies to all persons, citizen or alien, as
well as to corporations.
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The Fifth Amendment
Guarantees
(1) Indictment by a Grand Jury:
Nobody can go to trial for a serious crime, except in a military
setting, without first being indicted (to bring a formal
accusation against) by a grand jury.
A grand jury listens to evidence and decides if someone
should be charged with a crime.
Thus the grand jury determines probable cause (a reasonable
belief that a crime has or is being committed), not "guilt" or
"innocence".
Unlike trial juries, grand juries can indict with only a majority.
Grand juries do not a unanimous vote.
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The Fifth Amendment
and
Double Jeopardy
defendants, once acquitted on a charge, may not be
tried again for the same offense at the same
jurisdictional level
Defendants may be tried again if (1)the previous trial
ended in a mistrial or hung jury, (2)if there is evidence
of fraud in the previous trial, or (3)if the charges are not
precisely the same
the police officers who beat Rodney King, after being
acquitted on state charges, were convicted on federal
charges for the same offense.
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The Fifth Amendment
and
³Pleading the fifth´
The best known clause in the Fifth
Amendment ("No person ... shall be compelledin a criminal case to be a witness against
himself") protects suspects from forced self-
incrimination.
It should not by any means be taken as a sign
of guilt
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The Fifth Amendment
and
The Miranda Rule
Just because a suspect has rights doesn't mean
that a suspect knows about those rights.
Officers have often used, and sometimes still use,
a suspect's ignorance regarding his or her own
civil rights to build a case.
this all changed with Miranda v. Arizona (1966),the Supreme Court case that created the
statement officers are now required to issue upon
arrest--beginning with the words "You have the
right to remain silent..." *KEY COURT CASE*
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Miranda
v
Arizona (1966)
Ernesto Miranda, mentally retarded, was accused
and convicted of rape and kidnapping
he confessed to the crime under intense
interrogation wi/out any mention by the police of
his right to obtain a lawyer or what consequences
the answers to their questions would have on the
outcome of the trial
The Supreme Court, in its landmark ruling,
established the Miranda Rights
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The Miranda Rights
directed the police to inform the accused upon arrest
that he has a constitutional
³right to remain silent, any thing said can be used in
court, he has a right to consult with a lawyer at any
time during the process and that a lawyer will beprovided if the accused can not afford one´
the accused must be asked if he/she understands
these rights
since the Miranda ruling, the courts have begun to
limit some of the rights established by the following
cases
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New York
vQuarles (1984)
the Court created a ³public safety´ exception
to the Miranda warnings allowing the police to
arrest an accused criminal w/out reciting the
Miranda warnings where public safety is
concerned
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Hamdi
v
Rumsfeld (2004)
Background of the case: During the U.S.
invasion of Afghanistan in 2001, U.S. military
forces captured a young Yemeni national
named Salim Ahmed Hamdan, who had worked
as a driver and bodyguard for Osama bin
Laden. He was held without trial until July 2004,
at which point he was charged with "conspiracyto commit terrorism" based primarily on his
association with bin Laden. He had not been
accused of directly participating in, or
coordinating, any terrorist acts.
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Hamdi v Rumsfeld
Outcome:Enemy combatants held in the United States have
due process r ights
enemy combatant: a term historically referring to
members of the armed forces of the state with
which another state is at war. In the United States
the use of the phrase "enemy combatant" may
also mean an alleged member of al Qaeda or theTaliban being held in detention by the U.S.
government as part of the war on terror
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HABEAS CORPUS
refers to the right of every prisoner to challenge
the terms of his or her incarceration in court before
a judge
today, the most frequently discussed international
habeas corpus controversy is the Bush
administration's policy of imprisoning hundreds of
suspected Afghan and Iraqi terrorist associates inGuantanamo Bay and other offshore U.S. prisons
without trial or meaningful judicial review
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The Fifth Amendment
and Property Rights
andthe Takings Clause:
under this clause, referred to as the takingsclause, the government can't simply claim
eminent domain (the power of the government
to take private property for public use with
payment of compensation to the owner) and
take a citizen¶s property
recent developments, however, (most notably,
Kelo v. New London (2005))have weakened
the takings clause considerably.
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Key Court Cases
regarding the
Fifth Amendment
1. ESCOBEDO V ILLINOIS (1964): Danny Escobedo
requested the assistance of a lawyer after he was arrested for
the murder of his brother
The police would not grant the request even though there was
a lawyer at the police station
Escobedo made a number of incriminating statements w/out
his lawyer present, which were later used against him at his
trial.
The Supreme Court ruled Escobedo¶s due process rights of
self-incrimination and right to counsel were violated and he
was released from prison.
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(2)Gideon
V
Wainright (1964)
landmark case that established that the accused has the
right to an attorney even is he/she cannot afford one
Gideon, accused of a felony in Florida, requested theassistance of a lawyer. The Florida criminal justice system
allowed free assistance only in cases that were punishable
by death.
Gideon defended himself and lost
The Supreme Court ruled that his Fifth Amendment due
process rights, made applicable by the Fourteenth Amend,
were denied
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THE SIXTH
AMENDMENTIn 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 shallhave 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 witnesses against him; to have
compulsory process for obtaining witnesses in hisfavor, and to have the assistance of counsel for his
defense.
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The Right to a Speedy
Trial:
is intended to prevent long-term incarceration
and detention (which amounts to a prison
sentence without a guilty verdict) without trial
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The Right to a Public
Trial:
Although public trials would ordinarily seem to be a
condition that would work against the defendant, given
the likely humiliating effect, they also ensure that the
proceedings are not conducted in an underhanded way.
One question currently under debate in the court
system is whether televised trials are a good idea--dothey further protect this right, or do they just exploit it?
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SOME ARGUMENTS IN FAVOR OF TELEVISED
TRIALS:
a defense against corruption; some believe that judges will
intentionally influence the outcome of a trial by verbally attacking the
defendant and their attorney in front of the jury
it gives the public the chance to see the opportunity to see the justice
system in action and how our legal system operates; many t.v. shows
present the legal system in a glamorous way
it will help lower the crime rate by making examples of criminals
will improve confidence in the judiciary system
instead of relying on a journalist¶s interpretation (newspapers, etc.),we can watch and draw our conclusions
will provide public monitoring, which provides a powerful incentive for
all involved to increase their efficiency and adhere to good standards
of behavior
ARGUMENTS AGAINST
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ARGUMENTS AGAINST:
participants in a trial which is being broadcast are aware they¶re being
watched, and this could very well alter the behavior of those involved; shifts
the focus to attention seeking and away from finding someone guilty or innocent
criminal trials are a very serious matter and not something that should be
viewed for entertainment
people have a right to privacy; just because you may have broken the law,
you should still have a right to privacy
opens up the media to scrutinizing the defendant-picking apart the
participants in the case, which could the affect the outcome of the trial
judges, jurors and attorneys end up playing for the camera instead of
concentrating on the case
victims may be less likely to give evidence of painful incidences if they know
they are being televised
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For Example:
O.J. Simpson trial
The most memorable event from the trial of O. J.Simpson was his inability to fit his hand into the glove
found at the murder scene. However, much less
prominence was given in the television coverage to the
hours of scientific evidence that proved it was possible
that the glove had shrunk.
Following the televised trial of O. J. Simpson, several
witnesses jurors gave interviews to the media, or wrote
their memoirs of the case. A popular following of a trial
often encourage witnesses and jurors to become
involved in the media coverage. This interference may
affect the reliability of the witness¶ evidence or the
jurors¶ verdict.
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The Right to an Impartial Jury:
Not only must jury members not have improper
biases before the trial begins, but they must alsonot be improperly prejudiced by the case or by
media coverage of the case.
Since juries are by definition made up of
members of the community, and human beings ingeneral tend to be good at developing prejudices,
this can be a challenge.
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...Unless You're a Kid:
Juvenile defendants are not entitled to a jury trial under
the Sixth Amendment.This is consistent with the overall higher level of privacy
granted in juvenile courts, where sentences are less
harsh and criminal records are generally kept private.
FYI: The normal age of these defendants is under 18,but juvenile court does not have jurisdiction in cases in
which minors are charged as adults.
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To Be Confronted with
Witnesses:
Some courts are currently wrestling with the issue of
whether victims who are not emotionally prepared to
testify directly in front of their accusers can testify on
closed-circuit television instead.
This is particularly tempting in cases of child abuse,
where the victim--already asked to courageously speak
about a traumatic event on the record and in public--could be intimidated into silence by the perpetrator's
presence.
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Assistance of Counsel:
Everyone tried for a criminal offense is given
the right to an attorney.
Public defenders, who take on the cases of
those who can't afford private lawyers, are often
overworked, and underpaid.
Attorney/Client Privilege: statements made by a
client to his/her lawyer are confidential
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Gideon
V
Wainright (1964)
landmark case that established that the accused has the right to
an attorney even is he/she cannot afford one
Gideon, accused of a felony in Florida, requested the assistance
of a lawyer. The Florida criminal justice system allowed free
assistance only in cases that were punishable by death.
Gideon defended himself and lost
The Supreme Court ruled that his Six Amendment due processrights made applicable by the Fourteenth Amendment were
denied
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THE 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 rules of the commonlaw.
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In a Nutshell:
The Seventh Amendment requires JURY trials in civil
lawsuits where ordinary damages (legal damages that a
jury or judge awards a plaintiff to "compensate" them for their legal losses) are sought. ex. hurt in a car
accident, fall down in the parking of Wal-Mart
No Jury for Divorces: A jury is not required in family law
cases (such as divorce and custody cases).
No Consensus Required: A simple majority is enough.
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THE EIGHTH AMENDMENT
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
Since sometimes convicts are poor, the issue
of excessive fines is central to our criminal justice system
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The Ninth Amendment
protects implicit rights hinted at but notspecified elsewhere in the Constitution.
Implicit rights include the right to privacy,
basic unspecified rights such as the right to
travel and the right to the presumption of
innocence.
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The Tenth Amendment
powers not granted to the federal government
nor prohibited to the states by the Constitutionare reserved to the states
when the Bill of Rights was originally, it only
applied to federal law-
the fourteenth amendment extended the Bill of
Rights to both state and federal law