The First and Second Amendments

First and Second Amendments

• Background:– After the Constitution was drafted many

people feared that the document created a central government with too much authority.

– To protect the people from the government and to get those worried about the government to vote for ratification, the Bill of Rights was drafted.

– What was the Bill of Rights?

First and Second Amendments

• The First 10 Amendments to the Constitution. – These are the ones that you will think about in

daily life, especially in criminal justice.– The right to a speedy trial, right not to

incriminate yourself, right to a jury, etc.– Tonight we will discuss the First and Second

Amendments and the interpretation of those amendments.

First and Second Amendments

• Can anyone tell me what basic freedoms the First Amendment protects?

First Amendment

• Religion,

• Speech,

• Press,

• Assembly,

• Redress of Grievances

Can anyone tell me what is meant by the redress of Grievances?

First Amendment

• Redress of Grievances: Basically means that when our rights are infringed, our government should try to make it better.

• When our government has wronged us, the people should be able to have those wrongs repaired.

First Amendment

• On the rest of them, we could do a seminar on each of the liberties protected.

• We do not have that luxury.

• So let’s start with the most important one.

• Which one do you think that is and why?

First Amendment

• Good Answers.

• Many people argue that Freedom of Speech is the most valuable.

• Freedom of speech encompasses speech about religion, speaking in groups (assembly) and the press.

First Amendment

• Congress shall make NO law abridging he freedom of speech.

• Includes the right to speak and to be heard.

• Can there be limits then if Congress is supposed to make NO law?

First Amendment

• The answer is yes.

• Courts still balance this personal freedom with the public good. This balancing test has led to some restrictions on free speech.

• When the good of the whole outweighs the rights of the individual.

First Amendment

• The ultimate question in most free speech cases is “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent.” Schenck v. United States.

• Now known as the “Clear and Present Danger “Test.

First Amendment

• Let’s look at some scenarios:

• Joe is watching Batman at the theatre. It is crowded and of course, too many people are talking. Joe is ticked off. He yells “Fire, Fire” and remains seated in his seat. He is charged with disorderly conduct. He claims freedom of speech. What is the result?

First Amendment

• Let’s look at some scenarios:

• Tom attends a church that firmly is against abortion. He attends a protest outside a clinic and blocks the entrance. He is arrested. In court, he claims freedom of speech and religion prohibit his prosecution. How does the judge rule?

First Amendment

• Let’s look at some scenarios:

• Sally is sick of the United State’s government. She holds a rally to enlist people to join her in the violent overthrow of the government. She is arrested. She claims freedom of speech prohibits her prosecution. Result?

First Amendment

• The speech must incite “Imminent lawless action.” Brandenburg v. Ohio

• Like yelling fire in a crowded theater.

• Abortion clinic protests.

• Inciting the violent overthrow of the government.

First Amendment

• Fred is frustrated with American foreign policy. He attends a rally and takes out an American Flag. He lights it on fire and tramples all over it. He is arrested and charged for desecrating the flag of the United States. He claims first amendment rights prohibit his prosecution. Result?

First Amendment

• Flag Burning– Is it speech?– Texas v. Johnson– 5 to 4 decision– How do you think the Court should have

ruled?– Does anyone know how they ruled?

First Amendment

• Justice Brennan said “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

•

First Amendment

• What about Cross Burning?

First Amendment

• Freedom of the Press– Should there be restrictions?

First Amendment

• There are restrictions, even on the Press.– National Security- Valerie Plame– Libelous or Obscene– How do we balance a free press with the right

to a fair trial? OJ?

First Amendment

• Freedom of Religion: Two Parts– “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof…”

– Cases come to the courts under both clauses

First Amendment

• “No law respecting an establishment of religion…”– Establishment clause– Government cannot show preference to a

particular religion or that church and state must be completely separate.

– Can church and state be completely separate? Should it be?

First Amendment

• School Prayer– Should it be allowed?– How about a moment of silence?

First Amendment

• School Funding– Primary Secular Purpose– Principle effect that neither advances nor

inhibits religion– Excessive entanglement– This area is still under review

First Amendment

• Native American Indians want to use peyote, a substance classified as a narcotic and illegal, during a religious ceremony. You are an officer and see the individuals using this illegal substance. Can you arrest them or are their activities protected under the 1st Amendment?

First Amendment

• “Conduct remains subject to regulation for the protection of society.” Cantwell v. Connecticut

• What if my religion says I can smoke marijuana or use cocaine?

First Amendment

• Part II: No law prohibiting the free exercise of religion.

• Freedom to believe is an absolute.

• Freedom to act, however, is not.

• Can anyone think of any examples?

First Amendment

• Pledge of Allegiance?

• Married to multiple people?

• Boy Scouts require pledge to Love God and do duty to God?

First Amendment

• We place restrictions on all of our first Amendment freedoms. So what about the Second Amendment?

• In light of the restrictions we have placed on free speech, press, and religion, should we also have restrictions on the Second Amendment right to bear arms?

Second Amendment

• It is hard to say that any of our rights can exist without some balance for the protection of society.

• So the question again, becomes where do we draw the line?

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.”

• That is the language, so what does it mean?

Second Amendment

• Only allowed to bear arms while in a militia?

• Any gun you want anytime?

Second Amendment

• Written in light of the times.

• Worry over a strong central government that might try to subject people to tyranny, the framers of the amendments wanted to give people the ability to protect themselves from a tyrannical government.

Second Amendment

• Is it a State’s Right or a right of an individual.

• The NRA believes it is the right of the individual. They argue that its placement in the Bill of Rights indicates its importance as a personal right.

Second Amendment

• State’s rights proponents see it as the protection of state militias

• They also use it as an argument that while Congress cannot regulate it, the states can place restrictions on handguns.

• Initially, the Supreme Court took this view.• Stevens v. U.S.- held that there was no

express right of individuals to keep and bear arms.

Second Amendment

• Thus, it appears, except for the rare case that if a state wanted to ban all guns it could.

Second Amendment

• So what about concealed carry?– Do you think it is constitutional?– Could congress prohibit it?– Could a state prohibit it?

Second Amendment

• Again it appears to be up to the states.– The more relevant question may be whether it

violates the state constitution.– But it seems that the states can prohibit it or

allow it as they please.

Second Amendment

• So what can the Federal Government do about guns?– It usually tries to regulate guns through its

broad power to regulate interstate commerce.– What?

Second Amendment

• For example, it is a federal offense for a convicted felon to possess a handgun.

• How can this be with the federal government’s limited power in this area?

Second Amendment

• The Brady Bill– Instituted Waiting Periods– And Background checks

The Second Amendment

• 1994 Assault Weapons Ban– 19 types of guns– United States v. Warin– (1976): “There can be no question that an

organized society which fails to regulate the importation, manufacture and transfer of the highly sophisticated lethal weapons in existence today does so at its peril.”

Second Amendment

• The crux of debate:– Do more guns make us more safe or less

safe?– What do you think?

Second Amendment

• What does this mean with Obama and banning guns?

• Do you buy it?

This Week’s Assignments

• Read chapters 6 and 7 in Constitutional Law and the Criminal Justice System

• Visit the website of the National Rifle Association

• Visit the website of the Brady Campaign To Stop Gun Violence

• Attend the weekly Seminar

• Make postings to the Discussion area

Next Week’s Assignments

• Read chapters 8 and 10 in Constitutional Law and the Criminal Justice System

• View the Judges Panel video clip

• Attend the weekly Seminar

• Make postings to the Discussion area

• Get ready for the midterm. You should be working on it.

Midterm 250 Points• Answer the following questions: • Provide a comprehensive discussion of the authority of the U.S.

Supreme Court and the procedures it uses for hearing various types of cases. Where is its authority found in the Constitution? Which legal case established the Supreme Court’s power of judicial review?

• How can the rights to a free press and a fair trial be balanced in a criminal case? Can a fair trial in a highly publicized case be assured? How is jury selection affected? To illustrate your points, you may refer to some recent high-profile cases in which pretrial publicity raised questions about a fair trial.

• Name four exceptions to the warrant requirement and discuss each one by providing an example of the application of the exception to particular facts.

Second Amendment

• OBAMA