PSC 101 Unit 23 Civil Liberties II

What are the opposing theoretical traditions related to the 2nd Amendment? Identify and describe a Supreme Court case that supported each side of the argument; separately identify the case that incorporated the 2nd Amendment in the states, and briefly identify what that (incorporation) means.

1. The two opposing theoretical traditions related to the 2nd Amendment are the individual rights theory and the collective rights theory.

2. The individual rights theory posits that the Second Amendment protects an individual's right to possess firearms for traditionally lawful purposes, such as self-defense in the home. District of Columbia v. Heller (2008) supports this view, affirming that the Second Amendment protects an individual’s right to possess firearms for traditionally lawful purposes, such as self-defense in the home. The collective rights theory posits that the Second Amendment primarily protects the right of states to arm their National Guard units. United States v. Miller (1939) supports this view, focusing on the relationship between the firearm in question and a well-regulated militia.

3. McDonald v. City of Chicago (2010) incorporated the 2nd Amendment to the states, meaning that the Second Amendment’s protections against federal infringement now directly limit state and local governments through the Fourteenth Amendment.

How does the fourth Amendment protect citizens? What are the two opposing theoretical traditions related to the 4th Amendment? Identify and describe a case from either readings or lecture that weakened 4th Amendment protections and also a case that strengthened 4th Amendment protections. Also, which case incorporated the 4th Amendment, and what does that (incorporation) mean?

1. Fourth Amendment Protections:

   • The Fourth Amendment safeguards citizens against unreasonable searches and seizures by the government, requiring law enforcement to obtain a warrant based on probable cause before conducting searches or making arrests.

   Theoretical Traditions:

   1. Originalism: Focuses on the text's original meaning and historical context, emphasizing the framers' intent.

   2. Living Constitution: Interprets the Constitution as a dynamic document, adapting to contemporary societal changes and technological advancements.

   Case Weakening Fourth Amendment Protections:

   • United States v. Jones (2012): The Court ruled that attaching a GPS device to a vehicle and monitoring its movements constitutes a search under the Fourth Amendment. While this decision acknowledged privacy concerns, it did not extend protections to all forms of digital surveillance, leaving room for future debates on digital privacy

   Case Strengthening Fourth Amendment Protections:

   • Carpenter v. United States (2018): The Supreme Court held that accessing historical cell-site location information (CSLI) without a warrant violates the Fourth Amendment. This decision recognized the need to adapt Fourth Amendment protections to modern technology, acknowledging the extensive privacy implications of digital data collection

   Incorporation of the Fourth Amendment:

   • Mapp v. Ohio (1961): The Supreme Court incorporated the Fourth Amendment protections against unreasonable searches and seizures to the states through the Fourteenth Amendment's Due Process Clause. This meant that state and local law enforcement agencies were also required to adhere to the Fourth Amendment, ensuring uniform protection of citizens' rights across the country

What does the double jeopardy clause of the 5th Amendment do? Identify the protection but also at least on exception. What about self-incrimination clause of the 5th Amendment? Identify what it does protect and what it does not protect. What was the key case surrounding the 5th Amendment, and what did it protect?

1. The double jeopardy clause protects an individual from being tried twice for the same crime. An exception exists if the crime violates both federal and state laws, allowing dual prosecution.

2. It protects individuals from being forced to testify against themselves. It does not protect against providing other types of evidence, such as fingerprints or blood samples.

3. Miranda v. Arizona (1966) established that criminal suspects must be informed of their constitutional rights, including the right to remain silent and the right to an attorney, before interrogation.

What does the Eminent Domain Clause of the Fifth Amendment protect? What are the two parts to the clause How was this clause “weakened” over the years, and what was the key case that helped to weaken the clause?

1. Protects private property rights by requiring the government to take property only for public use with just compensation. Key parts: (1) public use and (2) just compensation. Weakened by broad interpretations of 'public use,' exemplified by Kelo v. City of New London (2005)

What is the difference between procedural due process and substantive due process? How have recent Court Cases considered substantive due process?

1. Procedural due process concerns how the government acts (e.g., fair trial), while substantive due process concerns what the government can regulate (e.g., fundamental rights).

2. Recent court cases have considered substantive due process in areas like privacy and personal autonomy.

How (and in what case) did the Court find a protection for an individual right to privacy? What was the underlying basis? How did this protection affect a prominent later case?

1. Griswold v. Connecticut (1965)

2. The Court identified a "right of privacy older than the Bill of Rights," derived from "penumbras" or implied zones of privacy within specific guarantees in the Bill of Rights, such as the First, Third, Fourth, and Fifth Amendments.

3. The Griswold decision established a constitutional right to privacy, which served as a foundation for later cases like Eisenstadt v. Baird (1972), which extended contraceptive rights to unmarried individuals, and Roe v. Wade (1973), which recognized a woman's right to choose an abortion.

Why was the Dobbs v. Jackson case important? Identify two key reasons.

1. The Supreme Court's decision in Dobbs overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), eliminating the constitutional right to an abortion and returning the authority to regulate abortion to individual states.

2. The ruling led to immediate or severe restrictions on abortion in at least 26 states, with many states enacting bans or implementing stringent regulations, significantly altering access to abortion services nationwide.

Identify and describe two key cases related to the privacy aspect of marriage in the United States, as defined by the Supreme Court.

1. Griswold v. Connecticut (1965) The Supreme Court ruled that the Constitution protects the right of married couples to use contraceptives without government restriction, establishing a constitutional right to marital privacy.

2. Eisenstadt v. Baird (1972) The Court extended the right to use contraceptives to unmarried individuals, emphasizing that the right of privacy is personal and not confined to the marital relationship.

How have the states AND the court treated same-sex relationships, both in terms of general conduct but as well as in marriage? Is same-sex marriage a state-protected right, a federally-protected right, or not protected at all?

1. Prior to Obergefell v. Hodges (2015), states had varying laws regarding same-sex relationships. Some states legalized same-sex marriage, while others had constitutional amendments or statutes banning it. These state laws often conflicted, leading to legal challenges and inconsistent recognition of same-sex marriages across the country.

2. Before Obergefell, the Supreme Court upheld state bans on same-sex marriage. In Bowers v. Hardwick (1986), the Court upheld a Georgia sodomy law criminalizing consensual same-sex conduct. However, in Lawrence v. Texas (2003), the Court overturned Bowers, decriminalizing consensual same-sex conduct. Despite this, the Court did not recognize a constitutional right to same-sex marriage until Obergefell

3. Obergefell v. Hodges established that same-sex marriage is a federally protected right. The Supreme Court's 5–4 decision held that the Fourteenth Amendment requires all states to grant same-sex marriages and recognize those marriages performed in other jurisdictions.

What are the key issues surrounding civil liberties in the future? Are the states, Congress, or the Courts the better place for these decisions to be made? Why?

1. Privacy and surveillance: The proliferation of biometric recognition technologies, such as facial and voice recognition, has raised alarms about potential misuse and racial biases.

   Transgender Rights
   The legal landscape for transgender individuals is evolving, with numerous states enacting laws that ban gender-affirming care for minors and impose restrictions on changing gender markers on legal documents. These developments have led to increased legal challenges and debates over equal protection rights.

2. STATE COURTS are currently the most effective venues for advancing civil liberties.

   Each branch—states, Congress, and the courts—has a significant role in shaping the future of civil liberties. The dynamic interplay between them will determine the protection and expansion of these rights in the coming years.

Libel is

Defamation in writing.

What case provides for the selective incorporation of the right to free speech?

Gitlow v. New York

The outcome of Schenck v. United States was

the grave and probable danger test.

The incorporation doctrine, as applied in McDonald v City of Chicago (2010), means that:

The Second Amendment’s protections against federal infringement now directly limit state and local government through the Fourteenth Amendment.

In United States v. Miller (1939), the Supreme Court primarily focused on:

The relationship between the firearm in question and a well-regulated militia

While both Heller and McDonald affirmed an individual right to bear arms, a critical limitation acknowledged by the Court in these cases was that this right:

is not absolute and allows for reasonable restrictions.

According to the Supreme Court’s rulings in Heller and McDonald, the Second Amendment right is considered:

An individual right that is not unlimited

Which of the following situations would most likely violate the Fourth Amendment?

Police stop a pedestrian based on a vague hunch without reasonable suspicion

The Miranda rule established

that arrested persons be informed of the right to remain silent and to have counsel present during interrogation

Which of the following are considered legitimate “public uses” under the Fifth Amendment (select all that apply)

1. Taking land to build a shopping mall (mixed -use) to stimulate economic development

2. Creating a municipal park

3. Building a public school

The Supreme Court has based the individual right to privacy on

all of these articles of the Bill of Rights

Substantive due process has been used by the Supreme Court to recognize which of the following rights (Select all that apply)

1. The right to marry someone of a different race

2. The right to use contraception

3. the right to make decisions about parenting and family life

According to the clear and present danger test, expression could be restricted if

evidence exists that such expression would cause a condition that would endanger the public

The legal reasoning in McDonald v. City of Chicago relied most heavily on which aspect of the Fourteenth Amendment?

The Due Process Clause finding that the right to bear arms is a fundamental right deeply rooted in the nation’s history and tradition

Which clause of the Fourteenth Amendment was used in McDonald v. City of Chicago to apply the Second Amendment to the states? Helpful hint: the same clause is used to incorporate all incorporated amendments to the states - it’s not particular to McDonald

The Due Process Clause

In contrast to the individual rights integration affirmed in Heller, the '“collective rights” theory of the Second Amendment posits that:

The Second Amendment primarily protects the right of states to arm their National Guard units.

According to the Supreme Court’s rulings in Heller and McDonald, the Second Amendment right is considered:

An individual right that is not unlimited

In which case did the Supreme Court establish the exclusionary rule, banning illegally obtained evidence from trial (helpful hint) this case also incorporated the Fourth Amendment into the states

Mapp v. Ohio

The Fifth amendment guarantees which of the following rights (Select all that apply)

1. The right to remain silent

2. Just compensation for property taken for public use

3. Protection against double jeopardy

In Kelo v. City of New London (2005), the Supreme Court ruled that:

Economic development can qualify as a public use under the Takings Clause

Both Loving v. Virgina and Obergefell v. Hodges on which of the following constitutional doctrines?

Substantive due process

What was the primary legal issue in Obergefell v. Hodges (2015)?

Whether states could prohibit same-sex marriage