OConnor and Sabato, Chapter Four: Civil Liberties

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OConnor and Sabato,Chapter Four Civil Liberties

• Presentation 4.3 The 2nd 4th Amendments

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Key Topics

• The 2nd Amendment
• The Rights of Criminal Defendants the 4th
  Amendment Search Seizures

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The 2nd AmendmentThe Right to Bear Arms?

• Colonial mistrust of standing armies
• The founders belief that democracy standing
  armies did not mix
• Belief in small, local militias to defend
  communities

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1a. The Intent of the 2nd Amendment

• The purpose was to prevent Congress from passing
  laws disarming the state militias
• Anti-federalists were the primary advocates
• Unstated right the right to rebel against
  tyrannical governments

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1b. The Evolution of Gun Control Legislation

• States occasionally regulated citizens right to
  possess firearms
• The Court limited the federal governments
  ability to prevent such legislation (Barron v.
  Baltimore 1833)
• Pre-1860s, most laws dealt with slaves
  possessing guns

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1c. U.S. vs. Miller (1939)

• Congress passed the National Firearms Act banning
  automatic weapons sawed-off shotguns
• When challenged, the Supreme Court upheld the
  law, stating that the 2nd Amendment protected
  ordinary militia weapons as opposed to automatic
  weapons

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1d) Quilici v. Village of Morton Grove (1983)

• Local ordinance banned handguns
• The Supreme Court declined to hear the case
• Important precedent local regulation of gun
  possession is acceptable, while national laws
  imposing national standards on localities is not

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1di. The Brady Bill

• The role Sarah Brady in passing the Brady Bill
• Law banned semi-automatic weapons provided
  funding for law enforcement
• Vigorously opposed by the NRA

Reagans attempted assassination led to passage
of the Brady Bill. Picture courtesy Encarta
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1e. The Future of Gun Control

• The Supreme Court has struck down provisions of
  the Brady Bill
• Also struck down a federal law making it a
  federal crime to bring a handgun on to school
  property
• GOP-controlled Congress is unlikely to support
  additional gun-control measures

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2. The Rights of Criminal Defendants

• Procedural guarantees that are designed to
  prevent arbitrary punishment
• Call due process rights
• The problem of interpretation

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2a. The 4th Amendment Search Seizure

• 4th Amendment protects individuals from
  unreasonable police searches
• Sets out in detail what police must do in order
  to search a persons private dwelling

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2ai. The 4th Amendment

• The right of people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated
• 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.

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2aii. Where Can Police Search?

• A person arrested
• Things in plain view of the accused person
• Places or things that the arrested person could
  touch or are otherwise in the arrestees
  immediate control

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2aiii. Knock and Announce

• Police are obliged to knock and announce their
  presence before executing a search
• Reasonable exceptions include the likelihood of
  violence or the imminent destruction of evidence

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2b. Warrantless Searches

• Often occur when police suspect a person is
  committing or about to commit a crime (stop
  frisk exception)
• Reasonable suspicion criterion (lower than
  probable cause)
• Stop frisk is for the police officers
  safety probable cause is still necessary for a
  full search

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2bi. Warrantless Searches cont.

• In 2001, the Supreme Court ruled that a
  California policy forcing probates to accept spot
  searches was constitutional, but required
  reasonable suspicion
• Not a blanket approval to unannounced searches
• Searches can also be made if consent is given

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2c. What Must Police Do to Obtain a Warrant?

• Must approach a neutral magistrate prior to the
  search of any area where a person might have the
  expectation of privacy
• Police cannot obtain a warrant to force a suspect
  to have surgery to remove a bullet (bodily
  privacy outweighs the need for evidence)
• However, breathalyzers may be imposed without a
  warrant

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2ci. Searching Homes

• Homes are presumed to be private (police
  firefighters must obtain a warrant before they
  conduct a criminal search)
• The open fields doctrine police may search
  undeveloped private property without a warrant
• Also, police must get a warrant before using
  thermal imaging to search a persons home

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2d. Searching Automobiles

• In 1925, Supreme Court Chief Justice Wm. Howard
  Taft noted the unique nature of automobiles
• the vehicle can quickly be moved out of the
  locality or jurisdiction in which the warrant
  must be sought

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2di. Searching Automobiles

• Over time, the courts have become increasingly
  more lenient regarding police searches of cars
• In balancing public interests against the
  individuals right to personal security, the
  courts support a standard less than probable
  cause in brief investigatory stops.

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2e. Drug Testing

• If govt. can require a breathalyzer, can they
  also require drug tests?
• In 1986, Pres. Reagan signed an executive order
  requiring testing of federal employees
• In 1997, Congress passed a similar statute
  authorizing testing of all congressional
  employees
• However, the Supreme Court struck down a GA law
  requiring all candidates for state office to pass
  a urinalysis test 30 days prior to qualifying for
  nomination

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2ei. Drug Testing cont.

• Many private employers and professional athletic
  organizations routinely require drug tests
• However, govt. requirements create potential
  constitutional problems
• 1989 mandatory testing of employees involved in
  accidents ruled constitutional
• 1995 random testing of high school athletes was
  ruled constitutional
• 2002 OK statute requiring mandatory,
  suspicionless testing of students participating
  in extracurricular activities ruled constitutional

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2eii. Drug Testing of Pregnant Women

• South Carolina passed a law making drug use by
  pregnant women a crime (reckless endangerment
  of a fetus)
• Mandated random testing by doctors
• In 2001, the Supreme Court struck down the law as
  an unconstitutional violation of search seizure

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2eiii. Drug Testing cont.

• All employees can require pre-employment drug
  screening
• However, public employees enjoy greater
  protection from drug testing than private
  employers