Archive | April, 2016

The Sixth Amendment

29 Apr

The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment of the United States Constitution is the section of the Bill of Rights that guarantees a citizen a speedy trial, a fair jury, an attorney if the accused person wants one, and the chance to confront the witnesses who is accusing the defendant of a crime, meaning he or she can see who is making accusations. The Sixth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by 9 out of 12 states on December 15, 1791.

Understanding the Sixth Amendment Line by Line

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”: The person who is accused of a crime has the right to get a quick trial. This line does not mean that the person’s trial will be over in one week. Rather, this line means that the country or state cannot make the person sit in jail for a very long time, for example 5 years, while they for their trial. This would be very unfair to anyone who is not guilty. The person who is accused also has the right to receive a public trial. The state cannot lock the person away and ask questions about the crime. This process must be seen by the public so that it more fair to the accused person.

“By an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”: The trial has to have an impartial jury. This means that the jurors cannot be prejudiced or biased against the accused individual or the specific crime that the individual has been accused of, or it would be unfair to the accused. The trial also must be held in an area where the crime took place, or else it may also be unfair to the accused.

“And to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him”: The accused person has the right to find out what he or she is being charged with exactly and why he or she is being held in jail. The accused person also has the right to learn who is claiming that he or she committed the crime, along with the right to ask questions.

“To have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense”: The accused person has the right to make anyone attend their trial if they believe that person can help with the case. The court can also force a person to come to a court by using a summons, which means the person will not have choice, and will have to go to the trial. The accused person also has the right to hire an attorney. If he or she cannot afford an attorney, the court can provide one 

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The Fifth Amendment

23 Apr

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment is part of the Bill of Rights that was added to the Constitution on December 15, 1791. It covers a number of topics and issues including the grand jury, double jeopardy, self-incrimination (“taking the fifth”), due process, and eminent domain. I’ll explain each of these in more detail below. 

The Grand Jury 

The first part of the amendment talks about a grand jury. The grand jury is a jury that decides if a trial should be held. They look at all the evidence and then decide if a person should be charged with a crime. If they decide there is enough evidence, then they will issue an indictment and a regular trial will be held. The grand jury is only used in cases where the punishment for the crime is severe such as life in prison or the death sentence. 

Double Jeopardy 

The next section protects the person from being tried for the same crime more than once. This is called double jeopardy. 

Taking the Fifth 

Perhaps the most famous part of the Fifth Amendment is the right to not testify against yourself during a trial. This is often called “taking the fifth.” The government must present witnesses and evidence to prove the crime and cannot force someone to testify against themselves. 

Miranda Warning 

You’ve probably heard the police on TV say something like “you have the right to remain silent, anything you say or do may be used against you in a court of law” when they arrest someone. This statement is called the Miranda Warning. Police are required to tell people this before they question them as part of the Fifth Amendment. It reminds citizens that they don’t have to testify against themselves. 

Due Process 

The amendment also states that a person has a right to “due process of law.” Due process means that any citizen charged with a crime will be given a fair trial that follows a defined procedure through the judicial system. 

Eminent Domain 

The last section says that the government can’t take a person’s private property without paying them a fair price for it. This is called eminent domain. The government can take your property for public use, but they have to pay you a fair price for it. 

This is the simplest explanation of the amendment that covers the major clauses.

The Third Ammendment

19 Apr

Continuing my series on the Bill of Rights:

The Third Ammendment

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.

The Third Amendment seems to have no direct constitutional relevance at present; indeed, not only is it the least litigated amendment in the Bill of Rights, but the Supreme Court has never decided a case on the basis of it.

So what is the story behind it? It was made part of the Constitution for a reason. In this post I will try to outline the reasoning behind the 3rd Ammendment.

The federal government today is not likely to ask people to house soldiers in their homes, even in time of war. Nevertheless, the amendment has some modern implications. It suggests the individual’s right of domestic privacy—that people are protected from governmental intrusion into their homes; and it is the only part of the Constitution that deals directly with the relationship between the rights of individuals and the military in both peace and war—rights that emphasize the importance of civilian control over the armed forces. Some legal scholars have even begun to argue that the amendment might be applied to the government’s response to terror attacks and natural disasters, and to issues involving eminent domain and the militarization of the police.

When the amendment was written in the eighteenth century, Americans and Englishmen in general believed that the issue of quartering troops in private homes was of great and palpable significance. During the course of their history the English had developed a deep dislike of standing armies; they especially objected to the government’s compelling them to quarter soldiers in their homes.

Yet the English attitude was contradictory. At the same time as the English protested the quartering of troops in private homes, they were reluctant to house the soldiers in barracks separated from the civilian population. The English remained so suspicious of standing armies that they feared that concentrations of soldiers in barracks might pose military threats to the people’s liberties. Thus, the English concluded that if they had to have an army, it must be scattered among the populace and housed preferably in inns, alehouses, stables, and private homes. But as Parliament made clear in the Glorious Revolution of 1688-89, the government could not billet troops in private homes without the consent of the owners. So the English fear of standing armies was inextricably connected to their fear of having soldiers quartered in their homes without their consent.

Americans preferred to rely for their protection on local militia, not on professional soldiers. Although the peace treaty of 1763 ended the war and ousted France from the North American continent, the British government believed it still needed tens of thousands of soldiers in America in order to police the newly acquired territories. Since the earlier English quartering act did not extend to the colonies, Parliament in 1765 passed a Quartering Act that set down the regulations for housing soldiers in the American colonies during time of peace. The colonists were to provide barracks for the soldiers, and if they were not available, the troops were to be billeted in inns, stables, and alehouses; if these were insufficient, the governors and councils of the provinces were authorized to use uninhabited houses, barns, and other buildings to lodge the soldiers. The colonists were required to furnish provisions and necessaries for the troops, including firewood, bedding, and beer.

The colonies, particularly the province of New York, objected to this act, especially as it obliged them to raise money to support the soldiers without the consent of their provincial legislatures. Tensions over the presence of British soldiers in the colonies increased. In 1768 royal troops were redeployed to Boston, Massachusetts, to assist with law enforcement in a colony that seethed with resentment against British authority. Many Bostonians became convinced that this standing army quartered among them in time of peace in violation of English law was designed to overwhelm them with military force. With nearly four thousand redcoats billeted in a town of fifteen thousand civilians, it was only a matter of time before an incident occurred. On March 5, 1770, nervous British soldiers fired upon a hostile crowd and killed five civilians, resulting in what the colonists called the Boston Massacre. 

In the eyes of the British government Boston seemed to be a hotbed of fanaticism. The Tea Party in December 1773, in which patriots threw ₤10,000 of tea into Boston harbor, confirmed this view and led Parliament in 1774 to pass the Coercive Acts, among which was a new Quartering Act. This act went beyond the earlier statute by authorizing the royal governors to order the billeting of soldiers in private homes if the colonists refused to provide other lodging.

These British actions lay behind the Continental Congress’s expressions of American grievance. In its Declaration and Resolves on October 14, 1774, Congress protested the presence in a time of peace of a standing army and the quartering of troops in the colonies without their consent. Then in the Declaration of Independence of 1776, two of the many accusations Congress leveled against the king were his keeping “among us, in Times of Peace, Standing Armies, without the Consent or our Legislatures,” and his “quartering large Bodies of Armed Troops among us.”

Many of the Revolutionary state constitutions drafted in 1776-77 included provisions warning of the dangers of standing armies in peacetime and stating, as the Virginia Bill of Rights of 1776 did, “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State.” Some state constitutions also affirmed, as did the Delaware Declaration of Rights of 1776, “that no soldiers ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such manner only as the legislature shall direct.” Thus when the new federal Congress came to write the Third Amendment to the Constitution in 1789, it had considerable experience and precedent to rely on. There was nothing new about the Third Amendment; it simply declared what had become conventional American wisdom.

The Second Ammendment

18 Apr

The 2nd Amendment

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.

In all my years teaching the U S Constitution, the Second Amendment has always been the most contentious. People on both sides of the equation have very strong opinions of what it means and for the most part they have been wrong. In this post I hope to open the eyes of both sides as to what it actually says.

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nation’s armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated guns—blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls—gun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. A 5–4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only “the right of the people of each of the several States to maintain a well-regulated militia.” They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 5–4 vote. Four Justices relied on judicial precedents under the Fourteenth Amendment’s Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement the same individual right that is protected from federal infringement by the Second Amendment.

Not withstanding the lengthy opinions in Heller and McDonald, they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.” Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

The Second Amendment will probably always be a point of contention between the political factions running this Country. Those who prefer stronger gun laws and those who like it the way it is will have to come to a compromise that satisfies both sides rather than just one before this can be put to rest.

The Second Amendment is here to stay so we all need to understand and accept it.

Grandfather

8 Apr

As you probably realize my grandfather was my Mentor and my person that I could turn to with any problem. There was nothing grandfather didn’t know anytime I asked him questions he had an exact answer. From the time I started walking and talking he was my person to turn to in time of need.

Grandfather was very spiritual and always pointed me in the direction of God and explained to me that He was our ultimate guide and leader. He will never lead you astray and will always be there when you need Him. Many times in my early years he would tell me to go to a quiet area, pray and just listen to what He had to tell me. I had a favorite place to go in the canyon, I call it angel grotto, where it was so peaceful one could hear nature performing His miracles. I would go there to learn what God had in store for me that day.

Grandfather passed away when I was 12 but his lessons have stayed with me throughout my life. Today I still have my quiet moments with Him and learn what my day has in store. Because of grandfather’s teachings I have led a fairly peaceful life.

He was my teacher, my Mentor and my best friend during the time he was with us. He helped me grow in school and life. When I graduated 6th grade at the AYOP school, he took over and taught me the spiritual world. When I turned 10 he brought me before the council for endorsement as a healer.

When he was preparing for transition to heaven, he sat me down and explained to me that life on earth is just a stepping stone of what’s to come and that life with God is so much better. He was always prepared and ready for the future.

Now as I reflect back on our time together, I remember one of his many lessons – The magic of His touch. He taught me that God is always listening and talking to me and when I feel that soft touch on my arm or that gentle whisper in my ear, it is God guiding my direction. He is always by my side leading me.

I have always had a peaceful life and demeanor because of His presence in my daily life. Many have said I lead an enchanted life. Peace follows me wherever I go and all I can say is God has blessed me. As grandfather always told me, there is just something about His touch.

Walk daily with God at your side!

Love,

Ed