Sunday, March 22, 2009

The 2nd and 4th Amendments

Cases to Review

I am back from a wonderful spring break. I took a cross country train ride ending in Chicago and spent 3 days with my son site seeing and enjoying the great food and hospitality of the Windy City. Chicago is a city with a great history and even greater political significance. The city's enthusiasm for President Obama was clearly evident. As I stood in Grant Park I tried to imagine the emotions of that huge crowd that gathered on November 4th. Going back further in political history, it was the city that Harry Truman was nominated as VP in 1944 and who could ever forget 1968? Lots of history and my poor son endured three days of my recitation of it. The picture is the two of us at Cloud Gate in Millennium Park.

So much for my break...on to this week's topics, the 2nd and 4th Amendments. I will start with the 2nd Amendment, the right to bear arms. The first thing I like to point out to my students is that the 2nd Amendment has not been incorporated by the 14th Amendment. The Court has actually been pretty careful to dance around the 2nd Amendment. The problem of course is the language of the Amendment. Does the 2nd give us an individual right to own arms, or a communal right to arm a militia? I love to have the debate in my class after giving the students time to read on both sides of the issue. The cases I present to the students can be found in Oyez or Justia. They are as follows:

  • Presser v. Illinois (can militia parade with firearms)
  • United States v. Miller (was the federal firearms act outlawing sawed off shot guns and machine guns constitutional)
  • Quilici v. the Village of Morton Grove (can towns ban fire arms in the 2nd Circuit Appeals Court)
  • D.C. v. Heller (same question as above, different answer)
The first case was in the late 1800s and questioned if small militia groups could be banned from parading with arms. The Court said yes, Illinois could make such a ban. Miller claimed he could own any type of weapon including sawed off shot guns and machine guns denied by the Federal Firearms Act. The Court found for Congress and upheld the Act. Quilici and friends had to keep their guns at a gun club and could not have them in their home. The 2nd Circuit Court said that Morton Grove could regulate gun possession. Heller wanted to own a hand gun in Washington, D.C. even though the city had an ordinance denying this. This case saw a reversal of the Quilici ruling and said no to the cities ordinance. However, the Court stopped short of totally allowing all gun ownership. The case basically allowed guns to be owned and kept for defense in the home. Other gun ownership questions were not addressed in Heller however.

I almost doubt if we see Heller on the test at this point. It is a 2008 case and since questions are generated for the test over a year ahead of time, Heller will probably be absent from the Exam, but should be discussed with the students.

The 4th Amendment is great fun to teach, but we have to be careful not to dwell too long is easy to do and I have spent way to many days in some years looking at cases and discussing "what ifs" with the kids. The BIG ISSUE is the exclusionary rule that was first established in US v. Weeks. This of course is the idea that evidence gathered outside the boundaries of due process is not admissible in court. The Exclusionary Rule was incorporated in Wolf v. Colorado, but the decision left the states a lot of wiggle room. Mapp v. Ohio totally incorporated the case. Mapp is a huge case and should be studied very closely with the students. It has appeared on the AP Exam in multiple choice and free response questions on a regular basis.

As far as students go, the New Jersey v. TLO gave school administration great latitude to search students without warrants. Citing Tinker, the Court in TLO agreed that student rights did not end at the school's doorstep, but because of the special safety concerns and the fact that the schools act in place of the parents looking out for the children's safety, schools could search lockers, the students possessions, and the students with reasonable cause and without warrants. TLO is a regular on the AP Exam and should be looked at fairly closely.

I also give a bit of time to Vernonia School District v. Acton. This was a school drug test case that asked students going out for extra curricular activities to give permission to do random urine samples. The school district won the case again with the Court looking at the Tinker and TLO cases.

I give students a run down of other major cases (Terry v. Ohio for one) but try not to overburden them with too many case names. The general idea I try to leave with them is that while most of the time the police and district attorneys must proceed with all due process, there are times when the concern for public safety can override the individual right of privacy.

Try to remember not to overwhelm the kids with too many cases, but we must prepare them to recognize and be able to respond to the major cases that have affected the 2nd and 4th Amendments. Next week I will get into the trial rights and discuss the death penalty cases. Until then...

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