CHAPTER 9 Balancing Liberty and Safety Topics 3,5-3.6 Topic 3.6 Second Amendment: Right to Bear Arms LOR-2€: Explain the extent to which the Supreme Court's interpretation of the First and Second Amendments reflects a commitment to individual liberty. ~ Required Foundational Document: + The Constitution of the United States Topic 3.6 Amendments: Balancing Individual Freedom with Public Order and Safety LOR-2.0: Explain how the Supreme Court has attempted to balance claims of individual freedom with laws and enforcement procedures that promote public order and safety ~ Required Foundational Document: + The Constitution of the United States People march to advocate forgun rights in St. Paul Minnesota Student from schools in Brooklyn, New York walk ost of clas o show support for J sites gun laws 294 BALANCING LIBERTY AND SAFETY3.5 Second Amendment: Right to Bear Arms “To disarm the people... was the best and most effectual way to enslave them” George Mason, ViginiaRatlying Convention, 1788 Essential Question: To what extent does the Supreme Court's interpretation of the Second Amendment reflect a commitment to individual liberty? Te founding fathers vigorously debated the necesity of a nation being able to defend itself from invading forces or from threats within. Today, a growing number of voices is calling for changes to local and national gun laws as gun violence increases. The debate about the meaning of the Second Amendment and the degree to which government may limit guns has become especially heated in the last few decades. Should an amendment created in 1791 stil guide an industrialized and modernized nation's gun policy in the 21" century? Founding Principles and Bearing Arms At the 1787 Philadelphia Convention, the debate about weapons was generally related to a standing army. In light of the recent Shays’ Rebellion, several attendees were inclined to enable Congress to maintain a regular armed force, a paid, professionally trained military. Others clung to the idea of states keeping. regular militias that the federal government could call into service. The latter ‘would require an extra step in times of need but would provide an additional check on a potential runaway central government if the army was going to be used for heinous purposes. Constitutional Convention ‘The debates show us how far the Revolution and its aftermath had reversed traditional thinking. Previously, most statesmen of the day assumed that militias, locally controlled, would be less prone to corruption and abuse. By 1787, though, the men of the convention insisted an effective government required a national army, but, as historian Michael Waldman explains in The Second Amendment: A Biography, “there is no evidence—from James Madison’ notes or those of any other participant—that the delegates in the Constitutional SECOND AMENDMENT: RIGHT TO BEAR ARMS 295Convention had the slightest inkling that private gun ownership was viewed at risk and required inclusion in a bill of rights. It simply did not come up” In the States Several state constitutions had a bill of rights. Four of the thirteen states protected the right to beararmsas part ofa militia force. Only one, Pennsylvania, protected the right to bear arms as individual self-defense. Gun regulations were common. As historian Saul Cornell has described, various states and localities maintained laws that, among other things, designated the official location for gun and powder storage, barred firing guns within city limits, and prevented people deemed dangerous from gun ownership. In Maryland, Catholics were barred from having guns. Most states banned African Americans, free or slave, from joining militias or owning ‘weapons, And Rhode Island created a gun registry in supporting the militia. ‘Much gun law came via common law court rulings. Gun ownership was common and protected. The legal argument for using a gun in self-defense was well established, but courts would eventually weigh the right to own a gun against actions and regulations meant to protect others. A National Standard As the ratification debate moved toward adding a bill of rights, George Mason and Virginias other critics of the proposed Constitution drafted suggested rnd to the Congress. ‘their seventeenth suggestion read in ng with suggestions from multiple states, grew into the THINK AS A POLITICAL SCIENTIST: DESCRIBE THE AUTHOR'S CLAIM AND PERSPECTIVE Looking at the context in which an article or document is written often helps you clarify an author's claim. ‘Ihe quotes from Michael Waldman above look at how colonial leaders viewed the right of citizens to bear arms soon after the American Revolution. Today, people see the right to bear arms from a different perspective. For example, gun violence has increased in American society. As a result, the arguments for and against citizens rights to own firearms have heightened. One side emphasizes the right to own a gun to protect oneself and family. The other focuses on laws to restrict ownership of weapons to protect everyone from gun violence. Practice: Read the excerpt below, and answer the questions that follow. "On June 8, 1789, James Madison—who had won election to Congress only after agreeing to push for changes to the newly ratified Constitution—proposed 17 amendments on topics ranging from the size of congressional districts to legislative 296 UNITED STATES GOVEANMENT & POLITICS: AP" EDITIONpay to the right to religious freedom. One addressed the “well-regulated militia” and ‘the right “to keep and bear arms” We dor't really know what he meant by it. At the ‘time, Americans expected to be able to own guns, a legacy of English common law and rights, But the overwhelming use of the phrase "bear arms" in those days referred tomiltary activities. ‘There is not a single word about an individual’ right to @ gun for self-defense or recreation in Madison's notes from the Constitutional Convention. Nor was it ‘mentioned, with a few scattered exceptions, in the records ofthe ratification debates inthe states, Nor did the US. House of Representatives discuss the topic as it marked Up the Bill of Rights. In fact, the original version passed by the House included a conscientious objector provision. “A well regulated militia it explained, “composed of the body of the people, being the best security ofa free state the right of the people ‘to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person” Michael Weldman, Politico Magazine “tow the NRA Rewrote the Second Amendment’ 2014 1. How does Waldman interpret Madison and other founders’ arguments on ‘owning guns? 2, What inferences can be made about the author's opinion of the Second Amendment? 3, What isthe uncertainty that Waldman finds in the founders’ opinion about the right of citizens to own guns? The Second Amendment and Gun Policy Supreme Court interpretations of the Second Amendment, like those of the First Amendment, represent a commitment to individual liberties. The amendment states, “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed” ‘The precise meaning is difficult to ascertain in today's world, which is likely why the Second Amendment has been controversial. Was the amendment written to protect the state's right to maintain a militia or the citizen's unfettered right to own a firearm? Gun-control advocates might point out these state militias were “well regulated” and thus subject to state requirements such as training, occasional military exercises, and limitations on the type of gun possessed. ‘The concern at the time was about the federal government imposing its will on or overthrowing a state government with a standing federal army. ‘Ihe original concern was not with the general citizenry’ right to gun ownership. Today's gun advocates, however, supported by recent Supreme Court decisions, argue that the amendment guarantees the personal right to own and bear arms because each citizen's right to own a firearm guaranteed the state’ ability to have a militia. Similarly, gun rights proponents argue that the “right of the people” clause means the same as it does with other parts of the Bill of Rights. SECOND AMENDMENT: RIGHT TO BEAR ARMS 297National and State Laws Recall that the Bill of Rights was originally created to limit the federal government. States made their own gun-related laws for years and still do ‘today. A handful of national gun laws exist based on the commerce clause However, as you will read in the McDonald case, states must follow the Second Amendment because of selective incorporation, (See Topic 3.7.) Gun laws, such as defining where people can carry, fall within the police powers of the state. (See Topic 1.7.) Not until 1934, in an era of bootleggers national statute ; law was challenged not long after Congress passe and it was upheld by the Supreme Court. ‘The Brady Bill The gun debate came to the forefront again after a mentally disturbed John Hinckley shot President Ronald Reagan in 1981. Reagan survived as did his press secretary James Brady, but Brady suffered a paralyzing head wound. His wife helped organize a coalition to prevent handgun violence. the National Instant Criminal Background Check System has gone into effect. ‘The Brady Campaign to Prevent Gun Violence reported that the initial Brady law prevented the sale of guns to more than two million people. ‘The law, however, has several loopholes. Private gun collectors can avoid the background check when purchasing firearms at private gun shows, and some guns can be purchased via the Internet without a background check. Federal law and 28 states still allow juveniles to purchase long guns (rifles and shotguns) from unlicensed dealers, and the national check system has an insufficient database of non-felon criminals, domestic violence offenders, and mental health patients. ‘Meanwhile, states have increasingly passed laws favorable to the possession ‘of a gun, The powerful National Rifle Association (NRA) and Republican- controlled legislatures have worked to pass a number of state laws to enable citizens to carry guns, some concealed, some openly. ‘The NRA has also fought in the courts against laws restricting gun ownership. 298 UNITED STATES GOVERNMENT & POLITICS: AP" EDITIONThe Road to Heller In 2008 the Supreme Court issued its first Second a Washington, DC, it members of Congress took positions on the issue. The US. solicitor general fled a brief that suggested the Court not reach too far in preventing regulation, as reasonable limits on guns should remain lawful. ‘Amid the oral arguments in the courtroom, little was said about current gun law across the country, the toll of gun violence, or any precedents. Justice Stephen Breyer did cite some statistics on annual deaths and injuries caused by pistols. “Would it be unreasonable for a city with a high crime rate to ban handguns?” he asked Heller's lawyer. For the first time the Court ruled, in a five-to-four decision, that the Second Amendment recognizes an individual's right to own a gun unrelated to mi service. In the Court’ opinion, Justice Antonin Scalia wrote of the amendment and its history, that it “conferred an individual right to keep and bear arms. Of course, the right was not unlimited, just as the First Amendment’ right to speech is not” unlimited. “The Heller decision is unique in that it struck down an overreaching law put forth by the District of Columbia, the seat of the federal capital. This was nota state law, and thus it would not directly impact or alter similar bans and limitations in state law or local ordinances beyond DC. That would come with, the McDonald decision. (See Topic 37.) REFLECT ON THE ESSENTIAL QUESTION Essential Question: To what oxtont does the Supreme Court’ interpretation of the Second Amendment reflect a commitment to individual liberty? On separate paper, complete the chart below. ‘Government Action Related to ‘the Second Amendment KEY TERMS AND NAMES Brady Handgun Violence Prevention {Gun Control Act (1968) ‘Act (1993) Nationa Firearms Act (1934) Distit of Columbia v Heer (2008) Second Amendment (1731) SECOND AMENDMENT: RIGHT TO BEARARMS 2993.6 Amendments: Balancing Individual Freedom with Public Order and Safety “When the people fear the government there is tyranny, when the government fears the people there is liberty” loin Basil Baril, Debate on Socialism, 1914 Essential Question: How has the Supreme Court attempted to balance claims of individual freedom with laws and enforcement procedures that promote public order and safety? Write the First and second Amendments focus on guaranteeing individual liberties in relation to speech, religion, assembly, and bearing arms, other amendments in the Bill of Rights protect minorities and vulnerable populations—those suspected or accused of crimes, the poor, and the indigent—through the due process clause of the Fifth and Fourteenth Amendments. Constitutional provisions also help guide conflicts between individual liberties and national security concerns. Those conflicts can range from the Second Amendment argument of the right of one person to own a gun versus another person's right to be safe from gun violence to the Fourth Amendment's protections against illegal searches and seizures versus the government promoting public safety. EIAIDEEY Governmental laws and policies balancing order and liberty are based on the US. Constitution and have been interpreted differently over time. Cruel and Unusual Punishments and Excessive Bail The phrases decrying and preventing government from applying “cruel and unusual punishments” and requiring “excessive bail” had worked their way into the English Bill of Rights generations before the American Revolution. The colonists who formed the United States saw some of the punishments toward the early critics of the British monarchy during the pre-war period as cruel and unusual. Kings had imprisoned their foes on false charges and denied the possibility for bail. They had also mistreated or starved their foes to death These actions were likely taken because a fair and public trial probably would not have rendered the guilty verdict the king wanted. In the new republic, the US. Bill of Rights would protect against these practices. 300 UNITED STATES GOVEANMENT & POLITICS: AP" EDITIONEighth Amendment ‘The Fighth Amendment (1791) prevents cruel and unusual punishments and. excessive bail. Capital punishment, or the death penalty, has been in use for most of US. history, and it was allowed atthe time of ratification ofthe Constitution and the Bill of Rights. (Ihe Fifth Amendment refers to individuals being “deprived of life") There is nevertheless debate about whether the death penalty fits the definition, according tothe framers, of cruel and unusual. A handful of US. states, as well as most Western and developed countries, have banned the practice. ‘States can use a variety of methods of execution; lethal injection is the most common. From 1930 through the 1960s, 87 percent of death penalty sentences, were for murder, and 12 percent were for rape. ‘Ihe remaining 1 percent included treasonous charges and other offenses. In the United States, large majorities have long favored the death penalty for premeditated murders. ‘The Court put the death penalty on hold nationally with the decision in Furman v. Georgia in 1972. In a complex 5:4 decision, only two justices called the death penalty itself a violation of the Constitution. Justice Brennan wrote that most of society rejects the unnecessary severity of the death penalty, and there are other less severe punishments available. Justice Marshall called the death penalty excessive and served “no legislative purpose” Also, the Court’ decision addressed the randomness of the application of the death penalty. Some justices pointed out the disproportionate application of the death penalty to the socially disadvantaged, the poor, and racial minorities. With the decision of Gregg v. Georgia in 1976, the Court began reinstating. the death penalty as states restructured their sentencing guidelines. No state can make the death penalty mandatory by law. Rather, a careful and deliberate look at the circumstances leading to the crime must be taken into account in the penalty phase—the second phase of trial following a guilty verdict. Character witnesses may testify in the defendant’ favor to affect the issuance of the death penalty. In recent years, in cases of murder, the Court has outlawed the death penalty for mentally handicapped defendants and those defendants who were under 18 years of age at the time of the murder. Guantanamo Bay and Interrogations After the September 11, 2001, attack on the United States, in 2002 the US. military established a detention camp at its naval base in Guantanamo Bay, Cuba, to hold. terror suspects captured in the global war on terror. Placing the camp at this base provided stronger security, minimal media contact, and less prisoner access to legal aid than ifit had been within US, borders, Administration officials believed that the location of the camp and interrogations outside the United States allowed. a loosening of constitutional restrictions. If the suspect never entered the US., ‘would he be entitled to constitutional and Bill of Rights provisions? Soon after the terrorist attacks on September 11, 2001, administration officials signaled that unconventional tactics would be necessary to prevent another devastating attack. In trying to determine the legal limits of an intense interrogation, President Bush’s lawyers issued the now infamous “torture NDIVIDUAL FREEDOM AND PUBLIC ORDER 301memo” In August of 2002, President George W. Bush’s Office of Legal Counsel offered the legal definition of torture, calling it “severe physical pain ot suffering” The memo claimed such pain “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” One of the notorious techniques employed to gather information from reluctant detainees who fit this description was waterboarding—an ancient method that simulates drowning, ‘As these policies developed and became public, international peace organizations and civil libertarians in the United States questioned the disregard for both habeas corpus rights and the Eighth Amendment’ prohibition of cruel and unusual punishment. The international community, too, was aghast and left wondering, “Do the protections of the Bill of Rights extend to suspected terrorists?” President Obama reversed many of the Bush administration's positions regarding torture techniques on terrorism suspects. Many US. intelligence officials protested these changes, claiming a need for the flexibility of various techniques to acquire information vital to the nation’s security from detainees. THINK AS A POLITICAL SCIENTIST: SUPPORT AN ARGUMENT USING RELEVANT EVIDENCE Does the death penalty actually work as a deterrent to crime and make society safer? Strong arguments have been made on both sides of that question, Many times, evidence can support both sides of an argument, depending on how it is presented and interpreted. Both perspectives on the death penalty as @ deterrent can use statistics like those below to strengthen their argument. Practice: Using the information provided, answer the questions below. MURDER RATES IN STATES WITH AND WITHOUT THE DEATH PENALTY. Year 1990 | 1994 | 1998 | 2002 | 2006 | 2010 | 201 | 208 Stateswithdeath | 95 | 924 | 654 | 57 | 61 | 497 | 475 | 5.4 penalty stateswithout | 916 | 788 | 463 | 427 | as | 403 | ave | 41 death penalty Source: extpeatyintors (0tafor ach year taken fom ho FB Uniform Crime Reports Murder aes calculated by divin tha oa ‘umber of murder bythe ts! pepustion death penalty and ron-deth pena sates respectively ond -utipying tat by 10.000) 1. What are the trends in the data provided?” 2, Statistics from which year(s) could show the effectiveness of the death penalty? 43, Statistics from which year(s) could show the ineffectiveness of the death penalty? 4, How could the visual representation of the death penalty data be improved? 302 UNITED STATES GOVERNMENT & POLITICS: AP" EDITIONIndividual Rights and the Second Amendment Attempts to shape gun policy continue at the federal level with little success. Most gun policy and efforts to balance order and freedom with respect to the Second Amendment are scattered among varying state laws and occasional lower court decisions. Recent State Policy About 33,000 American deaths result from handguns each year; roughly one- third are homicides, and two-thirds are suicides. In 2014, about 11,000 of the nearly 16,000 homicides in the United States involved a firearm. In addition to the thousands of single deaths, an uptick in mass shootingshas brought attention. to the issue of accessibility to weapons, With shootings at Virginia Tech (2007), Newtown (2012), Charleston (2015), Orlando (2016), San Bernardino (2017), Las Vegas (2017), and Parkland (2018), activists and experts on both sides of the gun debate push for new legislation at the state level in hopes of solving a crisis and preventing and protecting future would-be victims. According to a count by the San Francisco-based Law Center to Prevent Gun Violence, more than 160 laws restricting gun use or ownership were passed in 42 states and the District of Columbia after the Newtown massacre, ‘These included broadening the legal definition of assault weapons, banning sales of magazines that hold more than seven rounds of ammunition, and increasing the number of potentially dangerous people on the no-purchase list. By another experts estimate, as G. M. Filisko reports in the American Bar Association Journal, about nine states have approved more restrictive laws, and about 30 have passed more pro-Second Amendment legislation. Pro-Second Amendment laws include widening open-carry and increasing the number of states that have reciprocity in respecting out-of-state permits. In 2009, only two states had permit-less carry. In 2017, North Dakota became the twelfth state to pass an open-carry law, sometimes called “constitutional carry” by its advocates. After a mass shooting, the number of state firearms bills introduced increases. ‘Ihe types of laws passed depend on the party in power. Republican pto-Second Amendment civil liberties bills increased more permissive laws by 75 percent in states where Republicans dominate, In Democrat-controlled states researchers found no significant increase in new restrictive laws enacted. Since the Las Vegas shooting in 2017, which resulted in a record number of deaths for a modern-day shooting, many people have focused on banning bump stocks, a device that essentially turns a semiautomatic rifle into an automatic one. New policies on both sides of the gun argument will continue to come and go with public concern over the issue, as legislatures design and pass them, and as courts determine whether they infringe on citizens’ civil liberties. NDIVIDUAL FREEDOM AND PUBLIC ORDER 303Search and Seizure ‘Among the grievances that pushed the colonies toward revolution was the British practice of searching for smuggled goods. ‘the British government issued writs of assistance, broad search warrants, that enabled British soldiers to search any vessel, warehouse, home, or wagon. Conflict between the overly aggressive soldiers and the already freedom-deprived colonists propelled the revolution, Fourth Amendment When many of the same revolutionaries worked to design the new government, they remembered this miserable chapter in relations between the colonies and Britain, James Madison and the First Congress added the Fourth Amendment to prevent a recurrence of such government overreach and violation of liberty, especially in the home. ‘The amendment addresses searches and seizures of evidence and citizens. It specifically protects against unreasonable searches and seizures. It provides that warrants are necessary for government or law enforcement to enter a person's home. Courts can issue such warrants only ‘when the information causing suspicion is delivered under oath and reaches the legal standard of a probable cause—a reasonable amount of suspicion that a crime has been committed. Probable cause is also needed to make an arrest— “seizing” a person—whether in the heat of the moment on the street or in an officers planned knock on the door with warrant in hand, The right of the people to be secure [safe] in their persons, houses, papers, and effects [belongings] against unreasonable searches and seizures shall not be violated; and no [search] 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. Fourth Amendment-—USS. Constitution When law enforcement officers have probable cause to believe criminal activity has taken place or is planned, they are duty-bound to act to preserve order. As the likelihood of danger or harm increases, the threshold for limitations on government search and seizure diminishes. For this reason, there are exceptions to the warrant requirement. For example, officers who see crime in plain view do not need a warrant. Limitless searches can be conducted in airports and at border crossings. Public school principals need only reasonable cause or suspicion to conduct searches in schools. If people give consent, waiving their constitutional protection against unreasonable searches, then no warrant is required. However, the Supreme Court has ruled that warrants are required for ‘wiretapping a suspect's phone, bringing a drug-snif_ing dog upon the porch of 304 UNITED STATES GOVEANMENT & POLITICS: AP" EDITIONhome, and looking into a cell phone of a suspect or even an arrested defendant. The Supreme Court has ruled in other ways to shape search and seizure law that will be examined in Topic 3.7. Cell Phones and Metadata Major changes in the past two decades—the threat of terrorism and the availability of modern electronic communication—have altered the application of the Fourth Amendment. The concern over terrorism significantly spiked after al-Qaeda terrorists attacked the United States on September 11, 2001, killing more than 3,000 people. In a sweeping response to find these terrorists and prevent future attacks, the U.S. government capitalized on modern forms of investigation and electronic surveillance. (See Topics 1.5 and 3.8 on the USA PATRIOT Act.) Not long after the attack, President George W. Bush initiated a program by executive order that secretly allowed the executive branch to connect with third parties—such as Verizon and other telecommunications companies—to acquire and examine cell phone data, This third-party relationship excused the government from obtaining warrants as long as the third party was willing to give up the information. In some ways, this relationship was similar to the police asking third parties in other investigations {a suspects boss, friend, business associate) about a suspects activities. ‘the degree to which phone companies need to keep phone records private is up to the customer and cellular provider. Some of the companies cooperated with the Bush administration in the name of catching terrorists, raising the legal question of whether such cooperation compromised citizens’ right against unreasonable searches. As governmental security organizations, especially the National Security Agency (NSA), increased their surveillance efforts, they instituted a program. code-named PRISM. This program compels Internet service providers to give up information related to Internet activity and communications. Also, as revealed by NSA contractor and now US. fugitive Edward Snowden, a program that processed overwhelming amounts of data allowed the United States and its intelligence apparatus to collect telephone metadata. Metadata is all the cell phone communication information minus the actual conversation; that is, who is calling whom, when, and for how long. The constitutional acceptance for such collection parallels an earlier Court ruling that allowed police to monitor calls made, though not the content of the conversation, if disclosed by a third party. The government's motivation here is to determine who might be connected to terror suspects in the United States and abroad and to what degree. NDIVIDUAL FREEDOM AND PUBLIC ORDER 305REFLECT ON THE ESSENTIAL QUESTION Essential Question: How has tho Supreme Court attempted to balance claims of individual freedom with laws and enforcement procedures that promote public order and safety? On separate paper, complete the chart below. Government Action to Promote Effect on individual Freedom Public Order and Safety KEY TERMS AND NAMES Eighth Amendment (1751) metadata Fourth Amendment (171) nits of assistance CHAPTER 9 Review: Learning Objectives and Key Terms ‘TOPIC 3.5: Expiain the extent to which the Supreme Court's interpretation of the First ‘and Second Amendments reflects commitment to individual liberty. (LOR-2.C) ‘Supreme Court Interprets the Second Amendment (LOR-2.C.5) Brady Handgun Violence Prevention Act (1883) National Firearms Act (1834) District of Columbia v. Heller (2008) Second Amendment (791) Gun Control Act (1968) ‘TOPIC 3.6: Explain how the Supreme Court has attempted to balance claims of individual freedom with laws and enforcement procedures that promote public order and safety, (LOR-2.D) ‘Supreme Court Balances Freedom and Safety (LOR-2.0. & 2) Eighth Amendment (1791) metadata Fourth Amendment (1791) writs of assistance 306 CHAPTER 9 REVIEW: LEARNING OBJECTIVES AND KEY TERMS