Ch 8 - 10 Flashcards
James Madison
Major architect of Bill of Rights; purpose to preserve blessings of liberty against gov infringement
Heller v DOC (2008)
Heller, a cop, denied a conceal/carry license; law required they be unloaded and nonfunctional at home. Appeals court stated requirement that equipment be nonfunctional violated second amendment
- Right to bear arms is an individual right
McDonald v Chicago (2010)
-Handgun Ban
-Argued 2nd Amendment should apply to state law
-Right to bear arms extends to states
New York Rifle & Pistol Assoc v Bruen (2022)
NY required person show sufficient need to receive a conceal carry license
-Right to conceal carry placing burden on government to show why a person cannot have firearm
4th Amendment
Protects against unreasonable search and seizure
5th Amendment
-Requires grand jury indictment
-Cannot be tried twice for same offense
-Cannot compel to testify against yourself (plead the fifth)
-Life, Liberty, Property without due process
5th Amendment clause not incorporated by 14th Amendment
Not all states use grand jury
6th Amendment
-Public and Speedy Trial
-Confront witnesses against you
-Notified of charges against you
-Compel witnesses to appear on your behalf
-Assistance of legal counsel
8th Amendment
-Excessive Bail or Fines
-Cruel and Unusual Punishment
9th Amendment
-Specific rights should not deny other rights retained by the people
-you have other rights not listed (catch-all)
10th Amendment
-All powers not given to the states (fed gov) or taken from the states are reserved to the states and the people
14th Amendment
Due process and State Rights
15th Amendment
Voting rights not based on race or color
19th Amendment
Right for women to vote
Social Compact Theory
Contract between government and the people; the people consent to be governed by a sovereign authority, negotiating individual rights
Natural Rights Theory
Laws of nature, fundamental and basic rights because you are a human being
United States v. Verdugo Uriquidez (1990)
Uriquidez is Mexican Citizen believed to be smuggling drugs into US; warrant obtained.
SC ruled protections meant for citizens of US + does not protect a nonresident in a foreign country
Corporations
Considered part of “the people” and protected by bill of rights
Incorporation Doctrine
Legal theory - Bill of Rights should be incorporated through 14th Amendment Due Process clause and made applicable
Hurtado v California (1884)
-Charged w/o grand jury in CA
-Sentenced to death for murder
-5th Amendment right to grand jury trial
-Court found not incorporated through due process, and defendant was treated fairly through use of information trial
Palko v Connecticut (1937)
-Connecticut wanted death penalty in a murder case
-Defendant convicted of second degree
-Retried case to receive death penalty
-Argued 5th Amendment double jeaopardy
Benton v Maryland (1969)
Applied double jeopardy to states
Inclusius unius est exclusio alterius
Inclusion of one item is exclusion of all others
not used for bill of rights
Implied rights
The right to: marry, travel, associate, privacy
Griswold v Connecticut (1965)
Is the right to privacy protected by the constitution?
Doctors gave married couples advice on contraceptives
1st Amendment
Freedom of:
-Religion
-Speech
-Press
-Peaceful assembly
-Petition Gov
Designed to add checks and balances to government power
Factions
Individual interest groups
Marketplace of Ideas
Free speech cases to describe framers ideas for 1st Amendment to allow individuals to discuss different ideas through speech
Texas v Johnson (1989)
-Flag Burning
-Does the first amendment right to free speech protect symbolic speech such as flag burning?
Schenck v US (1919)
-Clear and present danger test
-WWI protest against drafting
Gitlow v New York (1925)
-Bad Tendency Test
-Distributed socialist leaflet about overthrowing gov
Bad Tendency Test
Speech incites or causes illegal activity do not have to wait for harm to occur
Dennis v United States (1951)
-Probability Test (likely to cause)
-Violated fed act preventing the advocation of government overthrow
Brandenburg v Ohio (1969)
(KKK)
Brandenburg test (inflammatory speech advocating illegal action)
Leader of KKK violated law made illegal to advocate crime, sabotage, violence, terrorism as means of industrial or political reform
Brandenburg Test
“Imminent Lawless danger”
Vagueness
Cannot impose law if average person cannot understand it
Overbreadth
Gov cannot regulate or prohibit more speech than is necessary to protect
FCC v Fox (2012)
-Nicole Richie and Cher cursed during a live broadcast award show
-Indecency violation and fleeting expletives
Strict Scrutiny
“Compelling” interest and necessarily narrowed to achieve
Intermediate scrutiny
Substantial interest
Rational Scrutiny
Rational and logical
Morse v Frederick (2007)
BONG HITS FOR JESUS
1st amendment does not prevent school administrators from restricting
Content Neutrality
Gov in attempting to regulate speech is not discriminating against speech based on content or subject matter
Viewpoint Neutrality
Requires gov not favor one side or another regarding speech
Non-Protected forms of speech
Slander
Obscenity
Libel
Fighting Words
Defamation
Child Pornography
Hate Speech
Miller v California (1973)
Miller Test for determining obscenity
1. Unhealthy interest in sex
2. portrays sexual conduct in patently offensive way
3. Lacks serious literary, artistic, political, or scientific value
Pornography, Vulgarity, Profanity
Protected speech unless child porn or fighting words
Offensive speech
Expression likely to cause sensibilities of others to be offended
Hate speech
Enhanced penalties when coupled with crime
Defamation
False statement injures character
Slander
False verbal communication (speech)
Libel
False written communication (literary)
Central Hudson Test
-Promotional material
-Truthful & not misleading; lawful activity; substantial gov interest in regulating speech directly advances gov interest
Commercial Speech
Expression offered to promote sale of commodity or service
Freedom of Association
Free to gather together (First Amendment right to peaceful assembly)
NAACP v Alabama (1950)
Attorney general wanted full list of NAACP members
Boy Scouts of America vs Dale (2000)
Wanted to expel gay scout master
Reporter shield laws
Do not have to divulge source
Prior Restraint
Judicial suppression of material on grounds it is libelous or harmful (gov tries to prevent press from releasing info)
Lee v Weisman
-Coercion Test
-Public school invite Rabbi to speak and pray at school graduation. SC ruled it was coercive and established a religious state.
Lynch v Donnelly
-Endorsement Test
-RI town Holiday display included nativity scene. SC ruled it was not enough to dictate a church state.
Establishment Clause
First Amendment clause prohibiting government from establishing or favoring one religion over the other. Intended to ensure separation of church and state.
Free Exercise Clause
First Amendment Clause protecting citizens right to practice religion without government interference.
Van Orden v Perry
Texas State Capitol building has monument of Ten Commandments. SC ruled it is secular and not enough to promote or coerce and therefore does not violate the establishment clause. Cite historical significance.
ACLU v McCreary County Ky
The ACLU sued three KY courthouses for displays of ten commandments. SC ruled the displays were coercive and presented government endorsement of religion in violation with the Establishment Clause
Town of Greece v Galloway
Greece, NY held town hall meetings that included prayer at the beginning which was often Christian. Sued stating preference towards Christianity. SC ruled in favor of town, stating the prayers were for the legislators and were not coercive. Offense v coercion.
Lemon v Kurtzman
PA and RI adopted statutes providing secular textbooks and funding to non-public schools. SC majority ruled this was violation of establishment clause and constituted too much government involvement in religion.
Burwell v Hobby Lobby
Hobby Lobby sued ACA health insurance for not including for-profit companies in their freedom of religion clause which would prevent them from being required to provide contraceptives to their employees. SC ruled in hobby lobby favor
Reynolds v US
Reynolds practiced polygamy within the Church of the Latter Day Saints and argued the conviction was unconstitutional because his religion required him to marry multiple women. SC ruled people cannot avoid a law due to their religion.
Cantwell v Connecticut
Cantwell and his sons were Jehovahs Witnesses going door to door to preach their religion. They were arrested for solicitation. SC ruled that the Cantwells message while offensive, did not cause bodily harm and was therefore protected as free speech.
Sherbert v Verner
Sherbert was a seventh-day Adventist who refused to work on Saturday as it violated her religion. She was fired. SC ruled in her favor stating the unemployment eligibility restrictions placed undue burden on her religion.
Employment Division v Smith
Two drug rehab counselors took peyote in observance of the Native American Church and were fired, barring them from unemployment due to misconduct. SC ruled that an individuals religious beliefs do not exempt them from state laws, and that to do so would open up exemptions in an unknown number of circumstances.
Accommodation Approach
Appropriate for government to assist religious orgs or interests
Separationist Approach
Gov should remain strictly separate and removed from religious activity.
Lemon Test
-Law must have secular purpose
-primary effect must promote or retrain religion
-Law must not foster excessive entanglement with gov
Endorsement Test
-Lynch v Donnelly
-Does gov activity convey a message of endorsing or disapproving of a religion
Coercion Test
-Accommodation Approach
-Lee v Weisman
-Asks if gov is acting in a manner that coerces individuals towards or against religious practices
Free Exercise Clause
Strict Scrutiny Test
-Government interest must be substantial or compelling
-weighed against religious intent
RFRA (1993)
Religious Freedom Restoration Act
Masterpiece Cakeshop v Colorado (2018)
Cake maker refused to make wedding cake for gay couple. SC ruled in favor of cakeshop under free exercise clause.
