Amendments 2-5, 14
The Right to Bear Arms
►
KEY QUESTION: do the people have an “individual right” to
bear arms or does the state have a right to maintain a
militia?


On one hand, gun rights advocates insist that an individual right
exists—therefore state and federal gov’t has no grounds to ban,
limit, or regulate the sale or possession of any type of weapon.
On the other hand, gun control advocates focus on the history of
the Amendment and argue that the Founding Fathers intended
the 2nd Amendment to protect a state’s right to keep and maintain
a militia. This would protect the states from federal power.
►
Note that for much of American history, the SCOTUS has favored the
“states’ rights” argument—the 2nd Amendment has yet to be
“incorporated” and is thus not protected from state action.
3rd Amendment
►
Text

“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.”
Note the historical circumstances which led to
this amendment—Quartering Act leading up to
the Revolution.
► Given the sweep of US History, the 3rd
Amendment has had little importance and a
case has never come before the SCOTUS
►
Rights of the Accused

Constitutional Protections




Due Process – refers to the proper legal
procedures given to individuals accused of a
crime
Writ of Habeas Corpus—prevents unjust arrests
or imprisonments.
Bill of Attainder—inflicts punishment without a
court trial or used to target individuals
Ex Post Facto Laws—law passed after the fact.
Due Process

14th Amendment guaranteed citizenship to all
 “State may not deprive any person of life, liberty, or
property w/o due process of law”

Due Process not always given
 Ex: Plessy v. Ferguson upheld segregation
 Ex: Korematsu v. US allowed Japanese-Americans to
be placed in internment camps and government to
confiscate their property
 Ex: poll taxes and literacy tests in the South

Modern US history has changed to protecting Civil
Liberties and broadly interpreting 14th Amendment
“Good Faith” exception—Just
because a warrant is faulty, doesn’t
mean that evidence obtained during
a search is unusable
“Inevitable Discovery” exception—
evidence that would have turned up
no matter what can be used, even
without a warrant
“Honest Mistakes” exception—In
carrying out a search, if police make
an honest mistake, that evidence
can still be used
“Knock and Announce” exception—
just because police fail to “knock
and announce” as they customarily
do, doesn’t mean that evidence
obtained afterwards can be
excluded
Automobiles: The SCOTUS has
ruled that whenever the police
lawfully stop a car, they do not need
a warrant to search anything in that
vehicle that they have reason to
believe holds evidence of a crime,
including the passengers
belongings, the glove compartment,
the trunk, etc
Types of Searches








Looking in/around home or apartment
Looking into an automobile
Wire taps
Taking blood or urine
Looking through binoculars and telescopes
X-rays
Looking through pockets/purses
Dog-sniffing
Legal Warrantless Searches









Searches after an arrest
Consent searches
Plain view
Stop and frisk
Hot pursuit
Inventory
Border/Airport Searches
Evidence collected in garbage
Presentation of a weapon
• evidence obtained in
violation of the Fourth
Amendment may not
be used in state and
federal courts
• upheld the
constitutionality of
warrantless searches
conducted at a public
high school assuming
probable cause existed
• that illegal aliens,
based on rights they
have in 5th, 6th, and
14th Amendments,
cannot be subject to
unreasonable search
and seizure
Mapp v.
Ohio
US v.
VerdugoUrquidez
TLO v.
New
Jersey
Miranda
v.
Arizona
• people who are
arrested must be
informed of their rights
for evidence can be
admitted in court
The Fifth Amendment

“Plead the Fifth”
- refusal to testify on the ground that the testimony might tend to incriminate
the witness in a crime

Anyone found not guilty cannot face double jeopardy—be tried again for the
same crime.

Exceptions to self-incrimination


Fingerprinting, police line-ups, handwriting samples, social media images and statuses/tweets
No one can have property taken without due process of law, except in cases
of eminent domain.
- Eminent domain is the power to take personal property to benefit
the public.