Keeping the Republic. Christine Barbour

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СКАЧАТЬ as four or more deaths, not counting the shooter’s) have been occurring almost weekly since Parkland. In fact, the 2018 midterm election on Nov. 6 was bookended by a massacre killing eleven people at worship in a Pittsburgh synagogue on October 27 and a shooting at a bar in Thousand Oaks, California, that killed twelve on November 7.

      Until 2008 the Supreme Court had ruled on only a handful of cases that had an impact on gun rights and the Second Amendment, mostly interpreting the Second Amendment as intending to arm state militias, and letting state gun-related legislation stand.⁶⁵ In 2008, however, the Supreme Court heard arguments for the first time since 1939 on whether the Constitution guarantees an individual the right to bear arms. In a five-to-four decision, the Court held that it did, striking down a Washington, D.C., law that banned handgun possession in the home. While the Court held that the D.C. law violated an individual’s right to own a gun for self-protection, the majority was careful to say that the right to own guns is not unlimited. For instance, it does not encompass military-grade weapons, and it does not extend to felons and the mentally ill.⁶⁶ In 2010 the Court took the ruling a step further, holding that not only could the federal government not violate an individual’s right to bear arms, as it had in the D.C. case, but neither could a state government.⁶⁷ Writing for the Court in a five-to-four decision, Justice Samuel Alito said, “It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”⁶⁸ Further cases will determine exactly what the parameters of this interpretation are—which state laws violate the right and which do not—but gun rights advocates are hoping to see it applied broadly, as evidenced by the Virginia law, passed just days after the Supreme Court ruling, that allows bar patrons to carry concealed weapons as long as they are not drinking.⁶⁹

      In Your Own Words

      Give examples of different interpretations of the Second Amendment’s meaning.

      The Rights of Criminal Defendants: Protecting the accused from an arbitrary government

      Half of the amendments in the Bill of Rights and several clauses in the Constitution itself are devoted to protecting the rights of people who are suspected or accused of committing crimes. The Fourth through Eighth Amendments protect people against unreasonable searches and seizures, self-incrimination, and cruel and unusual punishment, and they guarantee people accused of a crime the right to legal advice, the right to a speedy and public trial, and various other procedural protections.

      Why Are the Rights of Criminal Defendants Valuable?

      A primary reason for protecting the rights of the accused is to limit government power. One way governments can stop criticism of their actions is by eliminating the opposition, imprisoning them, or worse. The guarantees in the Bill of Rights provide checks on government’s ability to prosecute its enemies.

      Another reason for guaranteeing rights to those accused of crimes is the strong tradition in American culture, coming from our English roots, that a person is innocent until proven guilty. An innocent person, naturally, still has the full protection of the Constitution, and even a guilty person is protected to some degree, for instance, against cruel and unusual punishment. All Americans are entitled to what the Fifth and Fourteenth Amendments call due process of the law, which means that laws must be reasonable and fair, and that those accused of breaking the law—and who stand to lose life, liberty, or property as a consequence—have the right to appear before their judges to hear the charges and evidence against them, to have legal counsel, and to present any contradictory evidence in their defense. Due process means essentially that those accused of a crime have a right to a fair trial.

      due process of the law the guarantee that laws will be fair and reasonable and that citizens suspected of breaking the law will be treated fairly

      During the 1960s and 1970s the Supreme Court expanded the protection of the rights of the accused and incorporated them so that the states had to protect them as well. Yet the more conservative 1980s and 1990s witnessed a considerable backlash against a legal system perceived as having gone soft on crime—overly concerned with the rights of criminals at the expense of safe streets, neighborhoods, and cities, and deaf to the claims of victims of violent crimes. We want to protect the innocent, but when the seemingly guilty go free because of a technicality, the public is often incensed. The Supreme Court has had the heavy responsibility of drawing the line between the rights of defendants and the rights of society.

      Protection Against Unreasonable Searches and Seizures

      The Fourth Amendment guards against “unreasonable searches and seizures” and requires “probable cause” to obtain a warrant. The founders were particularly sensitive on this question because the king of England had had the right to order the homes of his subjects searched without cause, looking for any evidence of criminal activity. For the most part this amendment has been interpreted by the Court to mean that a person’s home is private and cannot be invaded by police without a warrant, obtainable only if they have very good reason to think that criminal evidence lies within.

      What’S Reasonable?

      Under the Fourth Amendment, there are a few exceptions to the rule that searches require warrants. Automobiles present a special case, for example, since by their nature they are likely to be gone by the time an officer appears with a warrant. Cars can be searched without warrants if the officer has probable cause to think a law has been broken, and the Court has gradually widened the scope of the search so that it can include luggage or closed containers in the car.

      Modern innovations like wiretapping and electronic surveillance presented more difficult problems for the Court because, of course, they are not mentioned in the Constitution. A “search” was understood legally to require some physical trespass, and a “seizure” involved taking some tangible object. Not until the case of Katz v. United States (1967) did the Court require for the first time that a warrant be obtained before phones could be tapped,⁷⁰ although the 2001 Patriot Act makes it a good deal easier to get a warrant. In 2012 the Court ruled that a search warrant was needed in order to put a GPS tracking device on a suspect’s car.⁷¹

      Physical searches of cell phones have also presented a modern conundrum for the courts, as cell phones have been considered to be part of the content of one’s pockets, which the Supreme Court had determined could be legally searched. But in 2014, writing for a unanimous Court, Chief Justice John Roberts acknowledged that “[t]he average smartphone user has installed 33 apps which together can form a revealing montage of the user’s life.” Thus, our phones are “mini-computers” that contain the same kind of information about us that our houses have traditionally contained, and just as our houses cannot be searched without a warrant, now neither can our cell phones (at least most of the time). It bears repeating, however, that warrants are not that hard to come by, so people storing information they prefer to keep private on their cell phones or computers should in general be cautious.⁷²

      Analog Searches Only Although police can examine СКАЧАТЬ