4,992
edits
US Constitution study guide: Difference between revisions
→Bill of Rights [Amendments 1-10]
| Line 981: | Line 981: | ||
== Bill of Rights [Amendments 1-10] == | == Bill of Rights [Amendments 1-10] == | ||
'''{{#tip-text:[BIll of Rights|Bill of Rights | '''{{#tip-text:[BIll of Rights overview]|Bill of Rights | ||
* = the first ten | * = the first ten Amendments that were adopted as a group of Amendments in 1791 | ||
* known collectively as the "Bill of Rights" (BOR) | * known collectively as the "Bill of Rights" (BOR) | ||
* BOR protects certain individual rights from "infringement" by the federal government | * BOR protects certain individual rights from "infringement" by the federal government | ||
| Line 989: | Line 989: | ||
Issues, problems & limits: | Issues, problems & limits: | ||
* as originally enacted and interpreted by the Courts, the BOR did not apply to the states | * as originally enacted and interpreted by the Courts, the BOR did not apply to the states | ||
* see the 14th | * see the 14th Amendment for how that Amendment opened the path for judicial application of the BOR to state law (called "incorporation" of the BOR | ||
Issues, problems & limits: | Issues, problems & limits: | ||
* the BOR protections have been construed (interpreted) by the Courts to include other rights or privileges that are not listed in the BOR | * the BOR protections have been construed (interpreted) by the Courts to include other rights or privileges that are not listed in the BOR | ||
* ex., the courts have construed the Sixth Amendment right to counsel in criminal cases to mean that the government must pay for an attorney for someone who cannot afford one | * ex., the courts have construed the Sixth Amendment right to counsel in criminal cases to mean that the government must pay for an attorney for someone who cannot afford one | ||
* in general, limits on the BOR protections are based on the '''public safety''' | * in general, limits on the BOR protections are based on the '''public safety''' or '''public interest''' | ||
* that is, individual protections may be limited by general needs, especially in times of crisis)}}''' and '''{{#tip-text:historical background|historical background: | * that is, individual protections may be limited by general needs, especially in times of crisis)}}''' and '''{{#tip-text:historical background|historical background: | ||
* see the introduction above the Constitution text for notes on the adoption of the Bill or Rights}}''' | * see the introduction above the Constitution text for notes on the adoption of the Bill or Rights}}''' | ||
===Amendment 1 [protections of religion, speech, press, assembly & petition]=== | ===Amendment 1 [protections of religion, speech, press, assembly & petition]=== | ||
'''{{#tip-text:[Amendment 1 overview]|First Amendment | |||
* = most commonly known of the BOR, but also misunderstood | |||
* while these rights are protected they are not absolute | |||
* i.e., there are exceptions to when Congress can infringe upon them | |||
* as per the above, those exceptions are generally related to the public safety or interest}}''' | |||
'''{{#tip-text:Congress shall make no law|Congress shall make no law | '''{{#tip-text:Congress shall make no law|Congress shall make no law | ||
| Line 1,049: | Line 1,055: | ||
* however, these petitions would be subject to the monarch's whims, making them arbitrary | * however, these petitions would be subject to the monarch's whims, making them arbitrary | ||
Issues, problems & limits: | Issues, problems & limits: | ||
* citizens have a constitutional right to organize "petitions" to change or make a law, although this is not related to the 1st | * citizens have a constitutional right to organize "petitions" to change or make a law, although this is not related to the 1st Amendment right | ||
* in Constitutional Law, this right is not controversial, although lobbying, which is a form of "petitioning" the government is very controversial | * in Constitutional Law, this right is not controversial, although lobbying, which is a form of "petitioning" the government is very controversial | ||
* note that most Constitutional questions regarding restrictions on lobbying regard the 1st Amendment right to Speech rather than the right to Petition | * note that most Constitutional questions regarding restrictions on lobbying regard the 1st Amendment right to Speech rather than the right to Petition | ||
| Line 1,056: | Line 1,062: | ||
=== Amendment 2 [right to bear arms]=== | === Amendment 2 [right to bear arms]=== | ||
'''{{#tip-text:[Amendment 2 | '''{{#tip-text:[Amendment 2 overview|Second Amendment: | ||
* protects the right of the people to "keep and bear Arms" ("shall not be infringed") | * protects the right of the people to "keep and bear Arms" ("shall not be infringed") | ||
* justifies that protection by the need for a "well regulated Militia" | * justifies that protection by the need for a "well regulated Militia" | ||
| Line 1,063: | Line 1,069: | ||
Issues, problems & limits: | Issues, problems & limits: | ||
* Courts have restricted the "right to bear arms" by limiting the type, size, and lethality or type of those weapons, generally maintaining the right for individuals to own those types of arms that would be used by a common "militia" (i.e., rifles, handguns, and not machine guns, tanks, etc.) | * Courts have restricted the "right to bear arms" by limiting the type, size, and lethality or type of those weapons, generally maintaining the right for individuals to own those types of arms that would be used by a common "militia" (i.e., rifles, handguns, and not machine guns, tanks, etc.) | ||
* Courts have also restricted or allowed localities to restrict the right to bear arms and to regulate such things as "conceal carry" (bearing an arm beneath one's clothing, i.e., not visible to others), automatic | * Courts have also restricted or allowed localities to restrict the right to bear arms and to regulate such things as "conceal carry" (bearing an arm beneath one's clothing, i.e., not visible to others), automatic weapons, etc. | ||
* gun-control advocates (anti-2nd Amendment) argue that the Amendment creates a "collective" right, i.e., of the | * gun-control advocates (anti-2nd Amendment) argue that the Amendment creates a "collective" right, i.e., of the states to maintain militias and not one of individuals | ||
* however, "the right of the people" is understood to be an individual right, as per its same expression in the First, Fourth, Ninth & Tenth Amendments | * however, "the right of the people" is understood to be an individual right, as per its same expression in the First, Fourth, Ninth & Tenth Amendments}}''' and '''{{#tip-text:notes on its syntax & interpretation|Second Amendment syntax (word choice & punctuation)& interpretation: | ||
* some | * some argue that the right "to bear arms" is constrained to the need for a "A well regulated Militia", frequently pointing to the comma separating "the right... bear arms" from the verb | ||
* however | * however, "A well regulated Militia" is "prefatory" (acts as a preface) and is not the subject of the verb, "shall not be infringed" | ||
* | * so the subject of the sentence is "the right of the people to keep and bear Arms" , shall not be infringed" | ||
* by conventions of | * thus creating the main or "operative" clause, "the right of the people to keep and bear Arms" , shall not be infringed" | ||
* this type of sentence construction is found frequently across the Constitution itself and other documents from the period of it and the BOR's writing}}''' | ** by conventions of the Founding era, the comma after "Arms" does not separate the subject ("the right") from the verb "infringed" | ||
** this type of sentence construction is found frequently across the Constitution itself and other documents from the period of it and the BOR's writing | |||
* nevertheless, the prefatory clause has been interpreted as a limit upon the individual right, yielding two general interpretations: | |||
1) the "prefatory" interpretation = gun control or "states militia" advocates who see the 2nd Amendments as granting states the power to maintain militias and not as an individual right | |||
2) the "operative" interpretation = the right to bear arms is an individual right or protection (and thus the prefatory clause protects the right of states to maintain militias) | |||
* in "District of Columbia v. Heller" (2008), the Supreme Court clarified the right as an individual right, overturning prior decisions that more largely held to the "prefatory" or state militia argument}}''' | |||
A well regulated '''{{#tip-text:Militia|Militia | A well regulated '''{{#tip-text:Militia|Militia | ||
| Line 1,080: | Line 1,091: | ||
* "bear" = "to wield", or to hold, maintain, or use}}''', shall not be infringed. | * "bear" = "to wield", or to hold, maintain, or use}}''', shall not be infringed. | ||
==={{#tip-text: Amendment 3|}} | ===Amendment 3 [protection against housing soldiers in private homes]=== | ||
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. | |||
'''{{#tip-text:[Amendment 3 overview]|Third Amendment: | |||
* tyrannical governments can control a populace by placing soldiers in their midst | |||
* during the Revolutionary Era, in order to suppress colonial agitation and dissent, the British "quartered" (or "housed") soldiers in private homes | |||
* by doing so, all other rights of dissent, disagreement or petition were squashed | |||
* here we see the Founders' reliance upon Congress to express the will of the people | |||
* so if the people deem it necessary, then their representatives would pass such a law | |||
Issues, problems & limits: | |||
* there have been no Court "explication" (judicial review or interpretation) over the Third Amendment | |||
}}''' | |||
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be '''{{#tip-text:prescribed by law|prescribed by law | |||
* = that any placement of soldiers in private homes must be according to law | |||
* = passed by the Congress and signed into law by the President | |||
* therefore the Founders considered the possible need to "quarter" soldiers in private homes but limited the government's ability to do so by legislative and not executive action | |||
* i.e., as Commander in Chief, the President cannot place soldiers in homes without "consent" (agreement) of the owner or a law authorizing it}}'''. | |||
===Amendment 4 [unreasonable searches, warrants & probable cause]=== | |||
'''{{#tip-text:[Amendment 4 overview]|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. | 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. | ||