{"id":225,"date":"2015-07-07T21:46:18","date_gmt":"2015-07-07T21:46:18","guid":{"rendered":"https:\/\/courses.candelalearning.com\/masteryusgovernment1x6xmaster\/?post_type=chapter&p=225"},"modified":"2016-11-11T20:33:53","modified_gmt":"2016-11-11T20:33:53","slug":"oer-17","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/spokanecc-americangovernment\/chapter\/oer-17\/","title":{"raw":"Reading: Arms, Search and Seizure, Accusation, Punishment, Property, and Privacy","rendered":"Reading: Arms, Search and Seizure, Accusation, Punishment, Property, and Privacy"},"content":{"raw":"
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Learning Objectives<\/h2>\r\n

After reading this section, you should be able to answer the following questions:<\/p>\r\n\r\n

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  1. What is the Second Amendment?<\/li>\r\n \t
  2. What constitutes an illegal search and seizure?<\/li>\r\n \t
  3. What amendments protect the rights of the accused?<\/li>\r\n \t
  4. What is eminent domain?<\/li>\r\n \t
  5. What is the current state of abortion as a civil liberty?<\/li>\r\n<\/ol>\r\n<\/div>\r\n
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    The Right to Keep and Bear Arms<\/h2>\r\n

    The Second Amendment reads, \u201cA well-regulated militia being necessary to the security of a free state, the right to keep and bear arms shall not be infringed.\u201d Is this a right of self-defense that is akin to the protection of one\u2019s dwelling guaranteed by other amendments?<\/strong>[footnote]Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right<\/em> (Cambridge, MA: Harvard University Press, 1994).[\/footnote]\u00a0<\/span>Or is it simply a basis for states to build militias, balancing off the standing army of the national government<\/strong>\u2014in which case the gradual replacement of volunteer state militias by the National Guard rendered the Second Amendment obsolete?[footnote]H. Richard Uviller and William G. Merkel, The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent<\/em> (Durham, NC: Duke University Press, 2002).[\/footnote]<\/span><\/p>\r\n

    Most crime rates in the United States are similar to those of countries such as Canada or Australia. But the United States has a far higher rate of violent crime, in part because of the greater availability of firearms. A large majority of the public supports restrictions on the sale of firearms, but few policies have been enacted to do so. Although opponents of gun control are outnumbered, they are more likely than supporters to vote on this issue.<\/strong><\/p>\r\n

    Policy debate on gun control usually occurs only after a dramatic, heavily covered news event like an assassination or a massacre at a school. One political scientist described the result as \u201cfurious politics, marginal policy.\u201d<\/span>[footnote]Robert J. Spitzer, The Politics of Gun Control<\/em> (Chatham, NJ: Chatham House, 1995), 168.<\/span> [\/footnote]For example, after the killings of Martin Luther King Jr. and Robert Kennedy in 1968, Congress debated President Lyndon Johnson\u2019s proposal for a federal system of firearm registration and licensing of gun owners but passed only limited, ineffective legislation. In 1994, dramatic fights over banning assault weapons and mandating a waiting period for gun purchases produced a law with huge loopholes when it failed to cover gun shows.<\/p>\r\n

    The \u201cright to keep and bear arms\u201d has been debated by the public and politicians more than by courts. But in June 2008, the Supreme Court, by a vote of 5\u20134, ruled that individuals have the right to bear arms.<\/strong> This decision, an interpretation of the Second Amendment, struck down the District of Columbia\u2019s thirty-two-year-old law banning the possession of handguns.[footnote]District of Columbia v. Heller<\/em>, 554 US 570 (2008).[\/footnote]<\/span> In June 2010, the Court, again by a vote of 5\u20134, applied the ruling to cities and states by overturning Chicago\u2019s ban on handguns.[footnote]McDonald v. Chicago<\/em>, 561 US ___, 130 S.Ct. 3020 (2010).[\/footnote]<\/span> The Court has not prohibited all legislation and limitation of guns, but such governmental actions would likely conflict with the Court\u2019s interpretation of the Second Amendment.<\/p>\r\n\r\n<\/div>\r\n

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    Searches and Seizures<\/h2>\r\n

    The Fourth Amendment<\/strong> prevents the government from conducting \u201cunreasonable<\/strong> searches and seizures.\u201d A reasonable search is conducted with a warrant issued by a judge and based on probable cause<\/strong>. What is \u201cunreasonable\u201d varies with how much privacy people can expect when they are being searched<\/strong>. Cars are less private than houses, so rules for searches of cars are less stringent. And government agencies can state reasons to compel persons not suspected of a crime to submit to searches and seizures. The goal of preventing airplanes from being hijacked authorizes mandatory searches of persons and their property before boarding aircraft and allows the confiscation of objects deemed dangerous.<\/p>\r\n\r\n

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    Electronic Searches<\/h2>\r\n

    New technologies complicate searches and seizures. In 1967, the Supreme Court ruled that the Fourth Amendment did not simply restrict physical entry: it \u201cprotects people, not places<\/strong>.\u201d[footnote]Olmstead v. United States<\/em>, 277 US 438 (1928) and Katz v. United States<\/em>, 389 US 347 (1967).[\/footnote]<\/span> The pivotal test is whether a person has \u201ca legitimate expectation of privacy\u201d regardless of the technological means used to search. Thus the Court has held that the use of heat-sensing devices able to find intensive marijuana farms inside closets requires a search warrant as much as would a physical entry to one\u2019s house.[footnote]Kyllo v. US<\/em>, 533 US 27 (2001).[\/footnote]<\/span><\/p>\r\n

    New technologies can also intrude into formerly private domains hitherto free from the potentially prying eye of government. For example, e-mail passes through many portals en route to delivery, each of which may be available for search without the sender\u2019s or receiver\u2019s knowledge. E-mail and web searches are still available in shadowy form even after the hard drive has seemingly been erased, and they can be searched for key words or other patterns efficiently. Police and prosecutors now have new weapons at their disposal in tracking down possible criminal activity.<\/p>\r\n

    The massive computerization of information tempts the government even more. In May 2004, the Government Accountability Office (GAO) released a report on data mining. It documented 52 federal agencies conducting 122 projects to collect, analyze, and use identifiable information on US persons for national security and law enforcement purposes. These numbers, which omit classified projects, are probably low-ball estimates.<\/p>\r\n\r\n<\/div>\r\n

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    Electronic Eavesdropping<\/h2>\r\n

    In 2006, newspapers leaked word of a secret executive order signed by President George W. Bush authorizing electronic eavesdropping on computerized and cell phone conversation without a warrant.[footnote]For revelations and details, see Eric Lichtblau, Bush\u2019s Law: The Remaking of American Justice<\/em> (New York: Pantheon, 2008).[\/footnote]<\/span> Bush claimed that the inherent powers of the president and Congress\u2019s authorization of force to respond to the 9\/11 attacks allowed him to initiate this policy. Members of Congress, unhappy that the program had been put into place without their knowledge, supported legislation obliging the president to seek warrants from a secret court.<\/p>\r\n\r\n<\/div>\r\n

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    The Exclusionary Rule<\/h2>\r\n

    The Fourth Amendment\u2019s exclusionary rule<\/span><\/strong> prevents evidence from an illegal search or seizure being introduced against a defendant in court. The Supreme Court adopted this rule for federal cases in 1914 and extended it to states in 1961.<\/p>\r\n

    Law enforcement officers have long bridled at the exclusionary rule and claim that \u201ctechnicalities\u201d allow guilty suspects to be set free. The Supreme Court has permitted the use in trial of seized evidence that would have been \u201cinevitably discovered\u201d<\/strong> even without an unconstitutional search\u2014such as that \u201cin plain view<\/strong>\u201d\u2014or which police officers acquired under a search warrant that they did not know was improperly issued.[footnote]The cases that established the exclusionary rule are Weeks v. United States<\/em>, 232 US 383 (1914) and Mapp v. Ohio<\/em>, 367 US 643 (1961). See, more recently, Nix v. Williams<\/em>, 467 US 431 (1984); United States v. Leon<\/em>, 468 US 897 (1984); and Massachusetts v. Sheppard<\/em>, 468 US 981 (1984).[\/footnote]<\/span><\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

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    The Rights of the Accused<\/h2>\r\n

    Collectively, the Fifth, Sixth<\/strong> and Seventh<\/strong> Amendments set forth procedural guarantees known as \u201crights of the accused,\u201d<\/strong> which exist through the criminal process from accusation to trial to conviction.<\/p>\r\n\r\n

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    Innocent until Proven Guilty<\/h2>\r\n

    The central right of the accused is the presumption that anyone charged with a crime is innocent until proven guilty in court.<\/strong> This rule can be hard to preserve when an accused individual has been subjected to massive unfavorable media attention prior to or during a trial. For example, the police have perfected a technique known as the \u201cperp walk\u201d (for \u201cperpetrator\u201d), allowing television cameras to film the accused\u2014often handcuffed and in prison garb\u2014escorted by police. Such images, repeated over and over again in news broadcasts, can lead viewers to presume guilt rather than innocence.<\/p>\r\n\r\n<\/div>\r\n

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    \u201cTaking the Fifth\u201d<\/h2>\r\n

    The Constitution\u2019s Fifth Amendment<\/strong> gives people the right to refuse to answer questions from any entity of government if they claim such responses might lead to criminal prosecution. Claiming this right not to incriminate oneself is popularly called \u201ctaking the fifth.\u201d Witnesses may be compelled to testify only if given immunity from prosecution.[footnote]Quinn v. United States<\/em>, 349 US 155 (1955); Emspak v. United States<\/em>, 349 US 190 (1955) and Ullman v. United States<\/em>, 350 US 422 (1956).[\/footnote]<\/span><\/p>\r\n

    Such restrictions frustrate law enforcement officers, who find confessions among the best means to obtain a guilty verdict.<\/p>\r\n

    The right against self-incrimination originally meant only that individuals could not be forced to testify against themselves during their trials. In the 1920s, the Supreme Court threw out convictions for which evidence had been gained by torture or coercion and slowly expanded the right to cover all discussions with all law enforcement officials.<\/p>\r\n

    By 1966, the Court was weary of issuing case-by-case decisions about whether the police had gone too far in questioning suspects. In Miranda v. Arizona<\/em><\/strong> (384 US 436), the justices, having reviewed numerous police manuals, concluded that police often tried to create an atmosphere designed to intimidate or manipulate the accused into confessing. The justices ruled that law enforcement officials must \u201cdemonstrate the use of procedural safeguards\u201d by ensuring that the accused is \u201cadequately and effectively apprised of his rights.\u201d The Miranda decision required a warning to be read to suspects prior to interrogation<\/strong>\u2014this warning is known as Miranda rights<\/span>\u2014without which their statements could not be admitted as evidence in court. Suspects must be notified of the following: that they have the right to remain silent, that whatever they say can be used against them in court, that they have the right to be represented by a lawyer before and during questioning, that they have the right to have a lawyer provided by the court if they cannot afford one, and that they have the right to terminate questioning at any time.<\/strong><\/p>\r\n\r\n

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    Congressional investigations that provide grants of immunity can complicate judicial proceedings. The conviction of Oliver North, a central figure in the arms-for-money Iran-Contra scandal of the 1980s, was overturned for that reason.<\/p>\r\n

    Be sure to click on the link below and know when police are not required to read you the Miranda rights (Test questions alert!)<\/strong><\/p>\r\n

    When Miranda does not apply<\/a><\/p>\r\n\r\n<\/div>\r\n

    These rights are familiar to anyone who has seen criminal detective movies or television shows.<\/p>\r\n\r\n

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    Video Clip: Dragnet<\/em><\/h3>\r\n

    Watch the infamous Dragnet<\/em> \u201cBlue Boy\u201d LSD scene below:<\/p>\r\nhttps:\/\/youtu.be\/P0zgIzqgxFU\r\n

    Miranda rights were effectively introduced to the American public when the tough-guy detectives of the sixties television show Dragnet<\/em> read them to suspects they were arresting.<\/p>\r\n\r\n<\/div>\r\n

    But are they effective? Police officers view the reading of these rights as a mere technicality. They can get information by appealing to a suspect\u2019s desire to tell his or her story and by acting as if they are on the suspect\u2019s side. Even after suspects invoke Miranda rights, officers can try to change their minds or elicit what they term off-the-record information. Eighty percent of suspects voluntarily waive their rights; many confess.[footnote]Welsh S. White, Miranda\u2019s Waning Protections: Police Interrogation Practices after Dickerson<\/em> (Ann Arbor: University of Michigan Press, 2001), especially chap. 7.[\/footnote]<\/span><\/p>\r\n\r\n<\/div>\r\n

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    Trial Procedures<\/h2>\r\n

    Over time, Supreme Court decisions have outlined processes for a suspect to be tried in court. The most important are the following:<\/p>\r\n\r\n