Bill of Rights – Amendments I & II Study Notes

Amendment I – Core Freedoms

Enumerates five, inter-related civil liberties guaranteed to “the people.”
• \textit{Religion} – Free exercise and protection against an established national church.
• \textit{Speech} – Right to express ideas verbally or symbolically.
• \textit{Press} – Right to publish, print, broadcast.
• \textit{Assembly} – Right to gather peacefully.
• \textit{Petition} – Right to request redress of grievances.
Rationale for prominence:
• Considered the “marketplace of ideas” amendment; many later cases refine its scope.
• States (e.g., \text{NY}, \text{VA}, \text{NC}) conditioned constitutional ratification on an explicit Bill of Rights.
Ratification mechanics (identical for all amendments):
• Proposal: \frac{2}{3} vote in both Congressional chambers or a national convention.
• Adoption: \frac{3}{4} of state legislatures or of special state conventions.

“Free” ≠ “ consequence-free.” Government may sanction speech when it crosses certain doctrinal thresholds.
Classic non-protected categories (examples raised in class):
• Direct threats to officials (e.g., “I’m going to kill the President”).
• False statements that create panic (shouting “Bomb!” at an airport; “Fire!” in a theater).
• Incitement or advocacy of imminent lawless action (“Death to the Jews” during a Nazi march).
• Solicitation of crime (attempting to sell illicit drugs to an undercover officer).
Clear & Present Danger Test (Schenck v. U.S., 1919): Speech may be curtailed if it
\begin{aligned}
1.&\; \text{Intentionally instigates unlawful action},\
2.&\; \text{Poses an immediate ( present ) threat},\
3.&\; \text{Is likely to succeed in producing that action}.\end{aligned}
Peaceable-assembly rules:
• Permits generally required when public roads/businesses will be obstructed (e.g., Mesa Marathon).
• Spontaneous political gatherings sometimes tolerated (e.g., Arizona “Red for Ed” rally) if non-violent and non-blocking.

\textbf{Skokie, IL (1977)} – Neo-Nazi parade approved; lawful because symbolism alone ≠ incitement.
\textbf{Schenck v. U.S. (1919)} – Anti-draft pamphlets; origin of “clear & present danger.”
McCarthy-era investigations (≈ 1950s) – Mere anti-American sentiment questioned but rarely prosecuted; highlights political climate vs. constitutional standard.

Text: “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.”
Key interpretive disputes:
• Meaning of “well-regulated Militia” vs. “the people.”
• Definition of “Arms” (handgun, bolt-action, semi-auto, full-auto, knives, etc.).
• Scope of “shall not be infringed” – absolute vs. subject to technology-based distinctions.

18th century: Flintlock muskets; slow reload → minimal mass-casualty concerns.
Post-Civil-War (1865 forward): Rapid innovation (rifling, lever-action).
Late 19th century: John Moses Browning patents semi-auto shotgun, machine gun, .45 ACP, 50\,\text{BMG}, etc.
20th century milestones:
• World War I/II – Springfield \text{M1} Garand (first mass-issued semi-auto rifle).
• 1947 – Kalashnikov AK platform.
• 1950s – Eugene Stoner’s AR platform (ArmaLite Rifle \neq “Assault Rifle”).

1994–2004 Federal Assault Weapons Ban (Brady-Bill era):
• Prohibited civilian purchase of specified semi-auto “AR-style” rifles for 10 years.
• FBI tasked with statistical review; concluded “no significant change” in gun-violence trends; AR-type rifles constituted < !!1\% of incidents.
• Expiration in 2004 coincided with sharp rise in civilian AR sales (“forbidden-fruit” effect).
National Firearms Act, Gun Control Act, state-level permitting—examples of regulatory attempts some argue “infringe,” others call “reasonable.”

Grammar/Punctuation: Single sentence, commas only—does militia clause limit or merely contextualize individual right?
Technological leap: Framers could not foresee select-fire carbines; does that matter?
Definition spectrum of “Arms” may allow regulation of certain classes while preserving others, depending on judicial philosophy.
National Guard framed by some as the modern “well-regulated militia,” shifting burden away from private ownership; counter-argument cites historical citizen-soldier model.