The Fourth Amendment

Welcome back to Day Four of our series studying the Constitution, together. Today, we will cover the Fourth Amendment.

The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 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.

When I was in high school, my love for American government and politics was born from my Government class. I became obsessed with studying the Constitution when our teacher told us, “If you are ever pulled over for any reason, and a police officer asks if he can search your vehicle, you tell them, ‘Absolutely not, not without a warrant.’” I remember taking notes and wondering, “Why not? What do I have to hide?” So I asked my Government teacher that very question. He explained, “Without a warrant, he has no probable cause. What’s to stop him from planting something in your car? What’s to stop him from arresting you because of something someone else has in that vehicle? No. No one may search your car, your property, your home, without a warrant.”

That stuck with me.

Today, the Fourth Amendment is understood as placing limits on the government whenever it detains or searches a person or property.

So let’s break down the Fourth Amendment, bit by bit.

THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO 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.

This means in order to protect the people, law enforcement cannot simply grab your purse, your backpack, go through your house or car, without a warrant signed by a Judge. The Fourth Amendment usually comes during criminal prosecution in court. The Supreme Court has ruled that if police seize evidence as part of an illegal search, the evidence normally cannot be admitted into court. This is called the “exclusionary rule,” and it is controversial because in most cases evidence is being tossed out even though it shows the person is guilty, and as a result of the police conduct, they might avoid conviction. A famous judge and ultimately a Supreme Court Justice, Benjamin Cardoza said, “The criminal is to go free because the constable has blundered.” Another Supreme Court Justice, Louis Brandeis responded, “If the government becomes the lawbreaker, it breeds contempt for the law.”

This is why it is imperative for officers of the court to conduct everything by the book.

The Fourth Amendment protects against arbitrary arrests and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.

If someone from law enforcement bangs on your door and demands entry, they can only do so with a warrant. A warrant that has been signed by a Judge.

The Third Amendment

Welcome back to Day Three of our series in which we study the Constitution together. Today, we will cover the Third Amendment.

The Third Amendment has really been a pretty boring one … until lately.

The Third Amendment states: 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.

Amendment Three to the Constitution was ratified on December 15, 1791. It forbids the housing of any military service member in private homes without the consent of the owner.

Let’s look at the Quartering Acts. In the years following the Revolutionary War, Congress attempted to establish laws preventing the abuses conducted by the British during the war. The Third Amendment was in response to the egregious application of the Quartering Acts, which required colonists to house and feed British soldiers against their will.

Recently, citizens have questioned whether or not the Third Amendment protects their businesses, as well. Do they have to house (hotels) and feed (restaurants) Federal employees? Suddenly, the “boring” amendment is being discussed by both individuals and individual business owners. One argument questions whether lower courts will rule in favor of these businesses, stating they are not under any obligation to house/rent and feed Federal employees, while others wonder if this could be discrimination.

The Third Amendment was meant to prohibit troops from taking rooms, not renting them out. On the one hand, hotels that have opted not to rent to certain Federal employees in order to provide peace to their other paying customers might be challenged. If they are pressured by the Federal government to rent/house employees, they could argue to the courts that the government costs them money from other paying customers.

From Courthouse News, “Though a Third Amendment argument against the federal government forcing a hotel to accommodate federal agents might be fraught, experts said there is something to be gleaned from the spirit of this little-remembered constitutional right—and how its historical interpretation as providing a right to privacy can be applied to the current moment.”

Is it a First Amendment case or a Third Amendment concern? It all depends on how this continues to unfold, with the understanding we have not been here … yet.

The Second Amendment

Welcome back to Day Two of our series, in which we study the Constitution together. Today, we will cover the Second Amendment.

The Second 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.

This Amendment is quoted incorrectly rather often, so let’s dig into it.

During the Constitutional Convention, the Framers understood the necessity of a citizen militia to resist a potentially oppressive military if constitutional order broke down. The Second Amendment codified (arranged laws) the individual right to firearm possession to combat this fear. Let us also interject here the phrase, “The Second Amendment is my God-given right.” This is also false. The Second Amendment is a Constitutional right, under the correct circumstances.

The Second Amendment does not, and never has, guaranteed a constitutional right for *every* individual American to own guns.

A WELL-REGULATED MILITIA refers to a government-organized force of citizen soldiers for the defense of the state, subject to a plan of organization, arms, and discipline.

The term “militia” often confuses people, so to break that down, it means a military force that is raised from the civil population to supplement a regular army in an emergency.

SECURITY OF A FREE STATE refers to security against invasion, insurrection, and civil unrest, for the protection of public liberty.

THE RIGHT OF THE PEOPLE – Under the system, “the people” has three meanings in the Constitution: “We the People of the United States,” the people of each state, or individuals. Which meaning is in use is determined by context. In the case of the people’s right to keep and bear arms, it means the people as a collective represented by state legislatures, that is, the States.

KEEP AND BEAR ARMS – Refers to maintaining and arming militia, kept in military readiness for public defense.

SHALL NOT BE INFRINGED – This is a term of art for protecting sovereign or public rights, in contrast to “abridged,” the term of art used in the First Amendment to protect individual or private rights.

At the time of the Bill of Rights, people were apprehensive and nervous about the new national government presented to them, so this helps explain the language and purpose of the Second Amendment. A huge national defense establishment has assumed the role of the militia of 200+ years ago. Americans have a right to defend their homes, and nothing should undermine this right. That said, there are some things we need to address.

In 2008, the Supreme Court listened to the District of Columbia v. Heller. (You can search this case, 554 U.S. 570). The Primary holding: Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia. Copied from Justia, U.S. Supreme Court, the case commentary, “This decision may have less dramatic an impact than some observers initially expected. It did lead to a surge of litigation in lower federal courts regarding gun control laws. Most of these lawsuits have failed, however, and states still have the right to prevent criminals, undocumented immigrants, drug addicts, and other high-risk groups from gaining access to weapons. Contrary to Justice Breyer's fears, the group of weapons that is deemed constitutional for individual use has not expanded to machine guns or other types of unconventional weapons. School zones and areas around federal buildings still can be subject to restrictions, and concealed carry laws as well as laws against straw purchases generally were left intact.”

In 2008, the Supreme Court ruled on the Second Amendment for the first time in almost 70 years after Dick Heller sued the District of Columbia over its ban on handguns in the home. The court ruled in Heller’s favor, affirming an individual right to keep handguns in the home for self-defense.

Since Heller, lower courts have upheld a wide range of gun laws as constitutional, including:

- Laws restricting the concealed and open carry of loaded guns in public.

- Bans on assault weapons, large capacity magazines, and silencers.

- Extreme risk protection orders and other prohibitions on dangerous people possessing guns.

- Firearm design safety standards.

- Safe storage requirements.

- Waiting period laws.

- Private-sale background checks and licensing laws.

If you search court cases or legal sites, you will read over and over how contentious a topic the Second Amendment is. Some people believe it provides an absolute right to own weapons, while others argue that its text limits the right to bear arms to purposes related to serving in a state militia. The Supreme Court issued very few opinions on the topic until 2008. Then it found the Heller case, as mentioned above.

So what was the original intent of the Second Amendment? Some historians argue that the primary reason was to prevent the need for the United States to have a professional standing army. Alexander Hamilton argued this point in the Federalist Papers. Others say the fear of a standing army is the reason for the Second Amendment protections. That is, they say the citizens’ right to bear arms served as a necessary check in case of a tyrannical government.

Regarding current-day conversations about carrying, and when and where you can carry, if a state allows for concealed carry, it is not illegal to be outside and carrying concealed. So if your state grants concealed carry (or even open carry), you are legally permitted to carry, assuming you do not fall under any of the exceptions listed above. You can search what your individual state laws are on the website of your state’s Attorney General’s office.

The First Amendment

Welcome to my series of studying the Constitution together! If you have known me for a hot minute, you know I love all things politics. I had a double major of Spanish and International Relations and a minor in Political Science. Last year, I took part in a class offered by Harvard entitled American Government: Constitutional Foundations. My ringtone is the theme song from The West Wing (my favorite show of all time). I tell you this to express my love for the Constitution and for what it stands.

Our Constitution is sometimes misunderstood, but there are so many resources available to help us understand, and apply it to our daily lives.

Many people with good intentions say, “Our founding fathers wanted this to be a Christian nation.” Don’t get me wrong, I would love for everyone to be a lover of Jesus. That said, the founding fathers never inserted God in the Constitution. In fact, Alexander Hamilton was asked why God had not been mentioned in the Constitution, and as legend goes, he responded, “We forgot!”

Every law must conform to the rules and guidelines of the Constitution. The first ten amendments to the Constitution are called the Bill of Rights, which is part of the Constitution. The Bill of Rights talks about individual rights.

Today, let’s start at the beginning, with the First Amendment.

The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let’s break this down, bit by bit. There are “five pillars” of the First Amendment, and your rights to freedom of religion, speech, press, assembly, and petition. Let’s also keep in mind this very important factor: regardless of your immigration status, you have guaranteed rights under the Constitution. These five guaranteed freedoms make the people in the United States the freest in the world.

Ready? Let’s go!

Freedom of Religion: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. So, what does this mean? It means Congress is forbidden from promoting one religion over others and restricting an individual’s religious practices. This means if you are a Christian, you have the right and freedom to worship wherever you are. This also means if you are Jewish, Hindu, Muslim, Buddhist, Unitarian, Ethnic or Tribal religions, agnostic, or atheist … Congress cannot force you to believe the way they believe, or deny your ability to pursue your own religious beliefs.

Freedom of Speech: This guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. You have the right to articulate your thoughts, feelings, opinions, and ideas without interference, retaliation, or punishment from the government. There are a few narrow categories of speech not protected by the First Amendment, and those would be examples like child pornography, defamatory speech, hate speech, speech that violates intellectual property law, false advertising, threats, and fighting words or speech integral to criminal conduct. The example many people use is you have the freedom to say in a movie theater, “This movie sucks,” but you do not have the freedom to run into said theater and yell, “Fire!” when there is no fire. Freedom of speech means I can say I don’t like the way someone behaves, but I cannot slander them and make up lies about them to convince others not to like them.

Freedom of the Press: This guarantees the protected right to freely publish communications and expressions of opinions through various forms of media. Freedom of the press limits the government’s control or censorship over the media, except in the most severe national security risk potential. An example of that last statement would be if, say, for example, a reporter was tipped that President Obama was sending in Seal Team Six to capture Osama bin Laden, and they printed or reported that information. “Congress shall make no law … abridging the freedom of speech, or of the press,” means the government cannot control what the media publishes, nor can they punish journalists just because they posted/shared/reported something uncomfortable, controversial, or critical. An example of that would be “Let’s Go Brandon.” This statement was derived from an expletive, “F-You, Biden.” Although gross, unkind, and disrespectful to our former president, the speech was protected, as was the reporting of it. A free and independent press is a core principle of democracy. A free press helps maintain the balance of power in government.

Freedom of Assembly: Under the First Amendment, this means everyone has the right to protest and assemble, which again highlights essential components of democracy. The rights protected are to hold meetings, sit-ins, strikes, rallies, events, or protests, both online and offline. It ensures people can gather and meet, both publicly and privately. Assemblies can be platforms to advocate for change and for people to raise awareness about issues that matter to them. Some examples of protesting would be those who disagreed with the government mandating vaccines during the pandemic, and protested to voice their displeasure, as well as those who protested in recent weeks against ICE. I might not agree with your politics or what you wish to protest, but I support your right to protest, just as you might not agree with my political beliefs, but you should support my right to protest.

Freedom of Petition: This is for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government. This freedom permits us to ask the government to address a need or concern through legislation and policies. You exercise the freedom of petition when you testify or speak at a public meeting at any level of the government, from local town halls or school board meetings, to speaking and petitioning Members of Congress or the president.

When I was in college, my favorite Political Science professor gave me my first pocket-sized Constitution. She pulled it out of her purse and said, “Aimee, every woman should be armed with two key things: a great shade of lipstick, and the Constitution. Knowledge is sexy. One day, you will be challenged about this, and as long as you study and know your Constitutional rights, you will be fine.”