The People's U.S. Constitution: The Bill of Rights (Amendments II-V)

Amendment II: The Right to Bear Arms. Ratified 12/15/1791.

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 framers recognized that self-government requires the people's access to bullets as well as ballets." Akhil Reed Amar

This amendment came about because the early colonists had more faith in the part-time or citizen army than they did in the regulars or standing army. And why not? There was a bias. They were at the constant behest of a monarch that had a habit of sending standing armies. But why the constant of standing armies? Founding Father and chief author of The Constitution James Madison has this to say:

A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.

The English had a substantial empire they had to maintain in the colonies, and along with the cost of fighting the French and Spanish in North America, the debt was substantial. In order to pay for this, the colonists were used. But no one will pay forcefully without someone there to make sure they do so; therefore, the standing armies.

So the question as to whether the 2^nd Amendment should be interpreted as the right of the army or individual to bear arms, the answer is yes. The militia, or the people's army, was used by early American's to keep the invaders at bay. If the main source of concern comes from without, why would the people need the right to bear arms for the fight within? Certainly this self-governing was new and even the threat from one's own government was real-the reason why the colonists left England in the first place-but wouldn't the Constitution's checks and balances keep the new government at bay to protect the average citizen?

Many questions and many concerns, however, the point is moot, for the Constitution is adaptable to current needs, and it is up to the Supreme Court to determine our current needs.

On June 27, 2008 David G. Savage of the Los Angeles Times reported that "Americans have a right to keep a gun at home for self-defense, the Supreme Court ruled today in striking down part of a handgun ban in the District of Columbia. By a 5-4 vote, the court concluded that the 2nd Amendment and its famous right "to keep and bear arms" protect the gun rights of individuals, rather than just a state's right to maintain a militia." However, according to Justice Scalia, "Like most rights, the right secured by the 2nd Amendment is not unlimited." However, the report also stated that the Supreme Court's decision will have little effect on state laws as the Supreme Court has said that the 2^nd Amendment does not apply to states. So as usual, it comes down to state law and its application which is never black and white. And many have noted that the 2^nd Amendment does not include an unlimited right to own guns. The Supreme Court's decision, however, has certainly opened new avenues to travel down in the future.

Amendment III: Quartering of Troops. Ratified 12/15/1791.

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.

Now this one's not on the tip of everyone's tongue these days. When was the last time you heard someone complaining about having to quarter troops or heard the subject in the news? Regardless, when the Constitution was written, it was a big deal. Nevertheless, since we're more concerned about now, I will touch on this amendment only briefly.

Even though the 2^nd Amendment is a byproduct of one of the most memorable events in early American history (Massachusetts legislature refused to quarter troops which lead to the Boston Massacre), it does have bearing today. The amendment alludes to a citizen's right to privacy. The Supreme Court has used the right to privacy principle inspired by the 3^rd Amendment to protect citizen's right to privacy.

Amendment IV: Search and Seizure. Ratified 12/15/1791.

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.

This dovetails with the 3^rd Amendment in protecting citizen's right to privacy. Before the Constitution, British soldiers often forcefully entered the homes of colonists without warning and without specific cause. As you can see, adequate warning and specific cause are essential elements in the 4^th Amendment.

Today, basically the Supreme Court has said that the police can not merely come into a citizen's home and sweep for clues to a crime. There has to be, as you've heard, probable cause.

Interestingly enough, the 4^th Amendment even though it states that a "the people [are] secure in their persons, houses, papers, and effects" that concept of protection of the "individual" in his or her home ran over to wiretapping in more recent history. However, at the same time, what a person says in the privacy of their own home is available for public consumption and is not protected by the 4^th Amendment. Or that which is stated in private and then restated in public is not protected by the 4^th Amendment.

At the same time, don't think your garbage which is put on the curb is protected. If you've got something in there it's available to the public, even if it's the police looking for evidence or drugs. No warrant needed in these cases.

Reasonable Searches and Seizures: Here, privacy, as we've seen is a concern, but what of "seizure"? When is it OK to go into someone's home and obtain what is wanted? Probable cause comes into play or the more than sufficient belief that the person in question has committed a crime. However, according to the Supreme Court, there are exceptions in which searches without warrants do not require probable cause.

Some of those events are when a police officer on the street believes it necessary to stop and frisk a suspect; or because of 9/11, airport personnel are allowed to search passengers without probable cause; or police are allowed to stop you at a general sobriety checkpoint as long as you're not being singled out, but the same can not be done for drugs since the program does not have a specific purpose to support highway safety; or the police are allowed a "consent search," such as in your roommate allowing the police in; or drug testing in a place of work; or student searches, such as searching for drugs on campus to keep the campus safe for all students involved.

You get the point.

Finally, we have the warrant clause where the officer involved must go before a civil officer, judge or justice of the peace, who will make a decision if the warrant is justified.

If an officer sees a crime occur and the suspect runs into a home he may make an arrest; however, if a person is a suspect and in his home, a warrant must be obtained.

To search requires probable cause; however, most searches are made without warrants. If you are a suspect you can be searched. If evidence is in plain view, a warrant is not needed. In cases of emergency, a police officer does not need a warrant to enter a home that is burning. Or if a police officer is in hot pursuit, he may follow a suspect into a home or building without a warrant. I'm sure you've seen cops, yes? Officers can also search cars because they are not as private as home and it would be difficult for the officer to obtain a warrant and then re-find the vehicle that may be miles away by the time he does so.

Amendment V: Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No 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 due process of law; nor shall private property be taken for public use, without just compensation.

You've heard about the 5^th, yes? As in "I'm taking the fifth." The protection against self-incrimination is the Hollywood right, the star right, but there are four other fifths, as in rights. They all, as per the Constitution in general, limit the power of the government to take action, or more specifically, unjust action against the individual.

First you have the right to a grand jury, as opposed to a petit jury, if you are charged of a serious crime. The difference? Grand is 23 jurors; petit is 6 to 12. Petit jury determines fact; Grand jury determines if there is enough evidence to charge a defendant with a crime. And once again when talking about state and federal, the Supreme Court applies the grand jury provision only to the federal government not the states.

You also have protection against double jeopardy. Basically, this protects against the government from charging, charging, charging the defendant with the crime until it gets a conviction. Considering the resources at hand, this is not too farfetched for the government to do without restraint. However, if there is a mistrial, the accused can be retried or a second trial can occur if there is an appeal or the accused is charged with other crimes.

And the self-incrimination right disallows the defendant from testifying against herself.

The Miranda rights allow one to obtain an attorney even if the accused cant' afford one, but more importantly, it protects him from self-incrimination for he has "the right to remain silent." However, if he "give[s] up the right to remain silent, anything [he] say[s] can be used against [him]."

If the accused does speak before these rights are read, what is said will not be allowed in court, unless the police can prove in court that the evidence would eventually have been discovered anyway.

The 5^th Amendment also protects "due process of law" or restricts federal government. It basically says that government can't be random in its punishment but must act according to certain laws. There are two categories regarding due process: substantive, the content of a law must be fair, and procedural, the rules by which the law is implemented must be fair.

That clear? Probably not. Let's try that again. A dictionary definition would be, substantive is defining rights and duties as opposed to giving the rules by which rights and duties are established; "substantive law." You've got rights and duties just laying there with their definitions, substantive; to bring them to life, you need give them rules, procedural.

Need I say more.

The last thing is private property shall not "be taken for public use, without just compensation." Meaning, if the government wants to build a train track through your house or a park in your front yard it has to give you proper incentive. OK, big cash . . . hopefully. But the key point here is that the power of the government to take your property in exchange for some mula is "limited." Not, no they can't! But yes they can, for a fee.

But you know what sucks? Things before the 14^th Amendment. Case in point, in Barron v. Baltimore (1833), a wharf owned by Barron was damaged by the city. Barron said pay up; the city said, the Constitution does not apply to states. Barron said, What!!! Or probably something close to that. But thank heavens for the 14^th Amendment, yes? I'm guessing that if you're a gambling man or woman, 14 is your luck number, especially if your last name is Barron and you live in the city of Baltimore.

This taking private property for public use, known as public domain, is how the government got the highways and railroads built. But now with the 15^th Amendment questions are posed as to how much the government can take. The Supreme Court in the past has used zoning laws and historic preservation statues as excuses for regulating property without compensation. Sad but true. However, in the 90s the Court has given more rights to the people, a good thing, yes? However, when the government is justified in taking property, it merely has to pay fair market value and not pay for moving or other extraneous costs. Sad, but true. Maybe why so many get peeved at the government. It is, after all, a double edge sword.

Personally, I know of a case where a friend of mine who owned a flower store had the connecting wall of her shop taken down by city construction. The city took to replacing the wall but got caught up in so many delays that she finally just sold her business and moved out. She said that the noise and dust was beyond bearable. And guess what? The city wanted the entire building but couldn't get her to move by conventional means so . . . Yes, they had just successfully played the whoops! wall's-down-we'll-replace-it-delay game. Now she's working as a secretary for an English department at a community college, which she says she enjoys for the lack of aggravation it brings . . . for now. So you do have to watch out for big government, but at the same time it is there to protect citizens . . . if you can get the proper amendments approved and interpreted to your advantage, adequate public awareness going, and proper level of Court consciousness raised. Good luck.