Monday, September 14, 2015

The Trial by Jury Clause...The Seventh Amendment

The Seventh Amendment guarantees the right to a trial by jury, not in criminal cases--that's the Sixth Amendment--in "common law" cases, aka. civil cases.  This is going to be so short, it wasn't going to be worth its own blog...but...

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."

"In suits at common law,..."

Suits, as in lawsuits.  Common law, aka. civil law.  Civil lawsuits where two parties are in conflict over something non-criminal.  The neighbor's tree squishing your car during a storm.  A divorce.  Wrongful death lawsuits have been the most notorious--ie. OJ Simpson may not have lost his liberty and was protected by Double Jeopardy.  But, he paid the families dearly after basically admitting his guilt in his book.

"...where the value in controversy shall exceed twenty dollars, ..."

Pretty self explanatory.  At one point, the argument was made that a human body was only worth the chemical make-up of the body which at the time was less than $20.  The counter-argument that won out is that a human being is worth what potential they had if they lived a normal life--which for the average person is a heck of a lot more than $20.  To be honest, cadavers go for over a couple hundred dollars when donated to science.  So yea...

"...the right of trial by jury shall be preserved,..."

Self explanatory.  When you sue your neighbor for ruining your new Honda because of that eye sore tree that has been falling out of its roots, bam.  You can request a jury.  Makes more sense to have a jury trial for a class action lawsuit against the cigarette companies...More sympathy, more compensation.  I don't think that is what the Founding Fathers had in mind, but civil cases are really what keep some companies in check.  An interesting twist on an Amendment that I'm sure law schools dedicate several classes to.  For the layman, the basic gist is simple though.

"...and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."

Once a jury has spoken, the case is just like any criminal case in the fact that only the appeals process can address the issue from then on.  We all know the appeals process can be lengthy and time consuming based on television and the little bit that most of us see whenever a death row inmate is about to be executed.  (Amazing how much of our limited knowledge comes from television and limited exposure to the criminal legal system.)

That's it.  It gets very, very, very complicated very quickly.  Like I stated earlier, civil lawsuits have class upon class upon class in law schools.  Civil law is far more complicated because civil law is the majority of our laws.  Tax laws, public health codes, false advertising, improper manufacturing or design, medical malpractice...and that's just the stuff I can think of off the top of my head.  Lawyers are way, way better suited to explain what is or isn't case worthy.  This may have started to ensure that if a neighbor stole your cow, you could get your money or your cow back, but wow.  How it evolved.

SPOILER ALERT:  Believe it or not...the Eight Amendment is one of the shortest, but it's going to be a longer blog.  Go figure.

Sunday, September 13, 2015

Not just the Right to a Speedy Trial...the Sixth Amendment

We tend to understand that the Sixth Amendment is the Right to a Speedy Trial, because there are so many crime shows on television.  Sometimes we remember which Amendment; sometimes we don't.  As I stated in the previous blog for the Fifth Amendment, while we often "plead the Fifth", in reality, the Fifth Amendment is mainly in regards to what cannot be done to us.  We "plead the Fifth" because we cannot be compelled or forced to give witness against ourselves.  The Sixth Amendment is what we are guaranteed when charged with a crime.

"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 defense."

"In all criminal prosecutions,..."

It doesn't apply in any civil proceedings, only criminal.  Now, why would that be?  Doesn't it seem just a little odd that a country would include rights for criminals in the Bill of Rights?  Are we a country of criminals?  Not historically.  Actually Australia was where most of the criminals from the British Empire went.  Most of the Americas migration was to get away from religious persecution.  This is where our saying "innocent until proven guilty" comes from.  But the interesting note is that often the British ruling authorities prior to the Revolution put people in stockades and prison ships where the treatment could result in death without ever having reached a trial.  The fear of persecution and unjust treatment was a very real problem for the Founding Fathers.  They wanted to ensure that any "criminal" act was treated fairly and justly and not just at the whim of Governor or military officer.

 "...the accused shall enjoy the right to a speedy and public trial,..."

Self explanatory.  This is where our right to a speedy trial comes from.  We often hear about proceedings being closed by the judge.  In general, this is going to be if the accused asks for it to be closed.  The prosecution would have to have a very compelling reason to request the proceedings to be closed.  In cases involving crimes against children, the judges have closed the proceedings to protect the victim or victims.  This same statement used to work against rape victims, because it was often used to create a public humiliation situation of the victim.  This loophole that was used in most cases into the 1990s was eventually addressed by the legislatures of various states with Rape Shield Laws which protect the victim's rights.  The public trial portion isn't to further victimize those that have had the crimes perpetrated against them, but to guarantee that the possible criminal is afforded the check of public scrutiny of our legal system.    

" an impartial jury of the state and district wherein the crime shall have been committed,..."

This is to ensure that a jury of our peers will decide our fate.  We actually have the right to waive a jury trial and only have the case heard and decided by a judge.  I'm not an attorney so I don't know when this would be a good idea.  It's your choice and as far as I can tell your attorney should agree, probably should've been the one to suggest it, as it would be in your best interests.  Not sure when it would be in your best interests either.  I'm guessing it would be best to listen to your lawyer and I'm also guessing it would be one of those instances where the nuances of the law would be the main contention.  In the case that some obscure nuance was where innocence versus guilty would be the determining factor, a dozen laypersons like you or I deciding on some legal mumbo jumbo issue, might not be the most prudent situation.

"...which district shall have been previously ascertained by law,..."

Every so often, cases are moved from the district or state where the crime was committed.  It's unusual, but the accused does have the right to request a change of venue, because the courts have deemed that the right to "an impartial jury" supersedes the "of the state and district" where the crime was committed.  Remember, the higher courts always tend to lean towards the innocent presumption rather than the guilty and ensuring an "impartial" proceeding will take precedent.  

"...and to be informed of the nature and cause of the accusation;..."

Simple enough.  Your right to know what you are charged with.

" be confronted with the witnesses against him;..."

Again, simple enough.

" have compulsory process for obtaining witnesses in his favor,.."

Also, pretty simple.  The prosecution has to present witnesses in front of the accused and the accused has the right to present their own witnesses.  Believe it or not, there were Old World trials that ended with only the prosecution's case.

"..and to have the assistance of counsel for his defense."

The right to an attorney.  While any one of us can read the Bill of Rights and understand the basic gist and even form our own opinions, the actual procedural expectations have always been fairly specific.  For an average person to defend themselves, this would be difficult.  While we see jailhouse lawyers on television that have "studied" the law and defend themselves, the truth is that this is a very unique occurrence.  In times where most people had not studied passed the 8th grade, if that, even a lawyer who had been self-educated and studied the law for decades would be better suited to defend someone.  (Side note, Abraham Lincoln was a self-educated attorney.)  In this day and age, where even the laws that are passed anymore require a Juris Doctorate to even understand half the wording, it is wiser to have a person formally trained to defend us rather than attempt to defend ourselves.  The Founding Fathers couldn't have foreseen how complicated it would become, although I'm not sure that some of them didn't see it coming like a freight train.  

I'm not sure that I have even come close to the tip of the iceberg with this one.  To be honest, this is one of the biggest Rights that we have.  Most of us will never have to use it, although as we criminalize even civil issues, many of us might.  It's a scary thought.  This right though, when you are in a bind, guarantees that the legal system cannot be stacked against you.  Although as we've seen over the years with OJ Simpson and similar morons, money talks and some guilty go free.

Of course, while I'm loath at the idea of a guilty person going free, I ask you to consider this.  Sir William Blackstone, a British jurist, conducted several lectures regarding criminal proceedings reform.  His impact on the Founding Fathers is found throughout the Constitution, particularly the legal system.  In one of those lectures in 1769, he said "it is better that 10 guilty escape than 1 innocent suffer".  In 1895, the US Supreme Court stated,  “it is better to let the crime of a guilty person go unpunished than to condemn the innocent.”  We forget this sometimes.  There have been innocent men that have died in prison, only for future forensic abilities to prove their innocence.  The innocent being condemned was a common place in the Old World.  The Founding Fathers did not want that to happen here.  Ironically, this concept was also part of the Roman Empire initially.  They failed to continue to adhere to that belief.  The Old World failed to adhere to that belief.  If we are already failing, what does that say about our "great" society?

Tuesday, August 25, 2015

Pleading the Fifth? It's more than what you see on TV

I know so many people who will talk about their rights, their lack thereof, or even how they can limit others rights.  It's interesting that everyone knows that the Fifth Amendment in the Bill of Rights is the Right to not incriminate oneself, mainly from television.  "I plead the Fifth" means that we are reserving our Right to keep our mouth shut.  It is the reason that the Miranda Warning is now a requirement and police have to quit asking you questions if you refuse to talk to them.  However, that really is only a portion of our Fifth Amendment Rights.  Yes, Rights, not just a single Right.

"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 offense 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."

Okay, so if you just read that whole thing, you may or may not realize that "pleading the Fifth" is actually almost the last right in this Amendment.  There are actually 4 rights, and it is the third of those four.

So, Fifth Amendment Right #1:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,..."

Basically, no one can be held to answer for any crime without the prosecutor at least presenting an indictment to a grand jury.  A capital crime is one that a capital punishment can be prescribed, such as murder or treason.  If the death penalty can be applied, then it is definitely a "capital crime".  An "infamous crime" is a little more complicated.  It is one of those crimes where innocence would not be assumed by dictionary definition.  However, by a law school definition, an "infamous crime" is generally anything we classify as felonies now--rape, manslaughter, larceny, felony assault, et cetera.  This can vary state to state.  What about misdemeanors?  This is all applicable as defined over the years as falling under the same umbrella. 

So, it says "no person shall be held".  Yes, this has been challenged.  The Supreme Court ruled under an interpretation of the Fourth Amendment, not even this Amendment, that if arrested without a warrant, the police have 48 hours before they have to have a warrant issued for arrest or let the suspect go.  Don't ask me to go into why, just know that although it would sound like it was this Amendment, especially based on television crime dramas, it is a Fourth Amendment Right that the Supreme Court ruled on in 1991.  It probably goes back to that Fourth Amendment Right to no search and seizure.  You don't have to incriminate yourself, and if the police do not have any evidence that you are involved in a crime, they cannot hold you until you fess up to one.  It would sound like it would be the Fifth, right?  Well, not really.  This Amendment is more about what cannot be done to you instead of what you can or cannot do.

So in general, this cannot be held thing is an accepted 72 hours rule, which doesn't include holidays or weekends either.  What's the difference between the 48 hours ruling versus the 72 hours?  Not sure.  It all sounded like the same thing to me, but I'm a layman.  Guess this is why when in doubt it's probably better to ask for a lawyer, not so much so that you need one if you're innocent, but so your rights don't get violated.  For capital or other infamous crimes, it's generally more likely the police will investigate and have everything that they need before they ever pick up their suspect.  Oh, and that 72 hours rule doesn't come from this Amendment either.  It comes from the next Amendment--the Right to a Speedy Trial.  So best guess is that the 72 hours is some limit to how slow they can be on getting an indictment after they arrest their suspect.  I know.  Somehow, it seems like it would come from here too.  But this Amendment really tends to focus on what cannot be done to the suspect--not what the suspect has the Right to expect.

"..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;..."

So, here's a personal favorite since I served in the United States Navy.  Any military member can tell you that we basically sign a contract that takes many of our guaranteed rights as American citizens away for the good order of our units.  However, almost no military member usually understands that our Rights are even taken by the Constitution.  The Bill of Rights Fifth Amendment is actually, like I stated earlier, not about the Rights we have, so much as it is about what Rights cannot be taken.  So, the Founding Fathers knew that for good military order during wartime or other emergencies the military cannot immediately respond to capital or infamous crimes.  So the Skipper, the Old Man, the Captain of the Ship, the General, just may be too busy to deal with the crimes at the time.  For military, we all know this means if arrested under suspicious circumstances we could be held in the brig or the stockade or in quarters until the governing officer has the opportunity to review the charges.  That could be a while, a long while.  It could be until the end of a war years later.  No joke, and the Fifth Amendment states it's perfectly acceptable.  Next time you thank a service member for their service, remember how much they gave up for your freedom.  Not only did they often put themselves voluntarily in peril, but they voluntarily gave up some of their Rights as American citizens.  Thank them with that in mind, because not many people, less than 2% of the population, do this voluntarily.

"...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;..."

This is what we refer to as "Double Jeopardy".  So to the idiot who told me that one of the Amendments, not the Fifth because "it is Right to Plead the Fifth", well, you were only a quarter correct at best.  The Fifth Amendment also covers Double Jeopardy.  Double Jeopardy means we cannot be tried again when a jury finds us innocent, even if we're stupid enough to blurt out later that we did it.  I bet OJ Simpson thanks God every day for this one.  Of course, it's not really meant for a guilty jerk to get off for a capital crime.  What it is meant for is to prevent a person from being harassed over and over that is innocent.  It sounds ludicrous to think that someone would keep trying someone over and over and over.  Yet, during the years of the British Crown, if the reigning Governor or Magistrate of an area didn't get the answer from a "jury" that they wanted, then they would try someone again until they got the "jury" to answer as they wished.  The Founding Fathers didn't want our country to become that.

Of course, Double Jeopardy has another edge to that sword--just what it meant in the movie of same name.  If a suspect is tried and found guilty of say murder and turns out the person that they were convicted of murdering isn't actually dead, well, yes, getting out of prison and killing them would be perfectly legal.  It's really the only loophole in Double Jeopardy.  If someone was accused. tried and found guilty of rape, if they got out and raped the person again, it's highly unlikely anyone would ever believe that they didn't commit the rape the first time.  So in that case, even if the "rapist" wasn't actually guilty the first time, no way they could prove it and Double Jeopardy would never be applied.

"...nor shall be compelled in any criminal case to be a witness against himself,..."

 And there it is.  "I plead the Fifth."  We cannot be compelled, another words forced, into incriminating ourselves.  There were several times in history that people claim they were coerced into confessions.  This Amendment says this is wrong.  The officers cannot keep plugging at you over and over until you bear witness against yourself.  That ruling by the Supreme Court created the Miranda Warning.  Another television favorite.  However, we can be tricked.  Compelled is defined as forced for all intensive purposes.  However, if the police lie to you about what they do or do not know and you spill the beans, that is not invading your Fifth Amendment Right.  What about the Miranda Warning?  That's to make sure that you understand to shut the hell up and anything you say after that is free game.  You were warned and therefore anything you say after that is of your own volition.  Can you plead the Fifth in any type of deposition?  Yes, because depositions can be used as evidence in court.

The Fifth only applies to you.  If you know someone else committed a crime and you were not involved, you cannot plead the Fifth to avoid testifying.  Also, you cannot plead the Fifth if you've negotiated a plea bargain.  So there are various situations that you agree to wave this part of your Fifth Amendment Rights.  There have been occasions where plea bargains have come under scrutiny whether they actually invade Fifth Amendment Rights.  In general, forget that.  The television version makes it pretty easy to understand, and fortunately for most of us, this is not what we will ever have to deal with.  Does it apply to say when you are driving and you get pulled over for speeding?  Well, yes.  Not sure that you want to bother telling an officer that you're pleading the Fifth when he or she asks you if you know how fast you were going.  Of course, most driver's licenses are no longer viewed as rights but as privileges.  So, yea, just not saying anything because you got pulled over and the officer thinks they smell alcohol may or may not mean you keep your license.  You signed this right over when you signed for your license in many states.  Like I said the majority of us don't sign over our Bill of Rights to the military, but many of us do it everyday to the state we live in.  Welcome to the slippery slope of becoming  a military state. 

"...nor be deprived of life, liberty, or property, without due process of law;..."

Guess what?  That sentence actually includes your stuff.  While police often take things with a warrant that are deemed as evidence, if it cannot be tied to a crime, they do not have the right to deprive anyone of their belongings.  If the suspect is found innocent, everything is supposed to be returned that was taken as part of the on-going investigation.  This is also why it's illegal to lynch someone.  No one can be held indefinitely without charges or even with charges--why we have bail.  And why they can't technically take your belongings until they tie them to a crime...well, except for that evidence thing.

"...nor shall private property be taken for public use, without just compensation."

Finally, they cannot give your property to anyone without "just compensation", another words "fair payment".  So technically, if they take say a home as evidence as proceeds of a crime, then find out that it isn't proceeds but they auctioned it off already--bam, the government has to pay for it.  Another flashback to the Crown days pre-American Revolution.  It was not uncommon for people to be taken to the gallows without a trial, their property distributed to Loyalists, and even if found innocent, never get their property returned.  The Founding Fathers wanted to protect our belongings.  But still this is more of a referendum about what the law or public officials cannot do, rather than a Right granted directly to you or I.

Basically, the Fifth Amendment means you cannot be compelled to testify against yourself, yes.  No one can force you to give witness against yourself.  But it also means charges must be brought legally and formally against any suspect.  No one can be tried for the same crime twice.  The property of a suspect cannot be taken willy nilly.  It definitely cannot be sold or given away without proper conviction of guilt, and if it is without a guilty verdict, the government must provide "just" or fair compensation for the loss.

Aren't you glad you read this?  I'm betting some of you never thought it was so much more than just "I plead the Fifth."

Wednesday, August 5, 2015

Search and Seizure--The 4th Amendment

The Fourth Amendment seems to be a big contention lately.  I recently posted to a friend's Facebook a young 21 year old man in Tennessee who was being pulled over during a "standard" DUI checkpoint who had decided to record the entire event.  Why he recorded it wasn't really as important, because I'm sure it was to point out how many rights were being violated, as much as the number of violations that the police racked up during the video.  Of course, the irony was that a relative of the guy got irate that the "kid" was being a "smart *ss" and should have just complied.  Of course, the problem wasn't that he didn't comply.  He was never asked to turn over his license or if he had been drinking.  It was a DUI checkpoint.  That would have been the point, right?  What was amazing to me is that she, the relative, really had no idea that anything the police had done was wrong and worse yet, even if they had, it was somehow absolved in her mind because the "kid" had been a "smart *ss".  So, if I'm a kid, I have no rights?  If I'm 21, I am legally able to drive, vote, drink and die for my country, so "smart *ss" or not the "kid" was well within his rights.  I'm probably going to use the video for example through this, along with other examples, and the link has been provided below for my readers to peruse it before or after. 

So, this is the 5th blog on the Bill of Rights series, and that means the Fourth Amendment to the Constitution of the United States.  So here it is:

"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."

So here in simple English:

"The right of the people..."

This means you, me, legal aliens, illegal aliens, everyone in this country.  There's no statement that it doesn't include a certain religion, a certain age group, a certain race, a certain anything.  The right of the people means all people.  I know there are "people" that would argue this, but there is no limit there on who the people are.  In the boldest and most modest reading, it is ALL people here in the United States. 

" their persons, houses, papers, and effects,..."

All your stuff, my stuff, anyone's the stuff--our stuff.  No, it doesn't say your car or your computer, but there were not such things when this document was written.  It's still your "effects".  All of your things are assumed to be secure that belong to you. 

" be secure..against unreasonable searches and seizures,"

Yes, notice that I did separate that a little.  It reads the same whether "The right of the people in their persons, houses, papers, and effects to be secure against unreasonable searches and seizures" as it should if you read it the exact way it is written.  The point here that we, the people, and all our belongings and effects, are to be secure against unreasonable searches and seizures.  That is our RIGHT. 

Why was this so important to the Founding Fathers?  The 13 Colonies had long been putting up with redcoats coming into their homes without proper warrant, without cause, basically at the whims of whoever was the appointed governor, and taking whatever they wanted.  If they claimed you didn't pay your taxes, they really didn't need to have any one sign off on it.  The claim alone could have all your property seized in the name of the Crown, even if the Crown was completely unaware of what was or wasn't seized. 

"(the right)...shall not be violated,..."

Well, of course not, right?

"..and no warrants shall issue, but upon probable cause, supported by oath or affirmation,..."

Now, here's the tricky part.  "No warrants shall issue" refers to the judges and magistrates, because in our society they are the ones with the granted power to issue warrants.  The mayor or a Congressman or a Governor cannot issue warrants.  Only judges and magistrates.  Why is this?  Because they are deemed as knowledgeable in the law and the rights of you and I, us, the people.  They are instructed by the Fourth Amendment to not issue any warrants but "upon probable cause".  Another way of wording "upon probable cause" is simply "with probable cause".  The judge or magistrate must be convinced that you may have done something wrong and further proof might be obtained if they provide their signature.  This is not something that has always worked.  I'm sure we've all heard stories of "iffy" warrants.  We either buy the stories or we don't based on our own opinions, our knowledge or lack thereof of the facts, and that's all hearsay. 

Judges and magistrates are not supposed to go on hearsay.  In fact, a good defense attorney, heck even a lousy one, should be able to argue against hearsay.  What's hearsay?  I heard it from Tom, who heard it from Jack, who heard it from Mary Beth, who heard it from Billy Goat.  That's hearsay.  We sometimes call it gossip.  Gossip can lead to real information, to be sure.  However, the judge needs to hear it "by oath or affirmation".  As a law enforcement official, if a police officer affirms, basically swears that he has certain evidence--generally that he or she has to explain, that would lead one to believe that someone has broken the law, then the judge can issue a warrant.  This depends on the officer's integrity and honesty, and why it so important that we start holding police officers, what we used to call peace officers, accountable if they are not honest.  Officers should not be above the law, and it is a slippery slope when they are.  A little lie here can blow up into a million little lies and eventually tether someone to lie after lie after lie.  It also depends on the officer being able to have accumulated first hand knowledge of a person's possible involvement in a crime.  If an officer were to lie about these things, then this is where they, the department they work for, the town or city or county or whatever, can get into those lengthy lawsuits for violations of people's rights. 

Have we gotten away from the requirement "supported by oath or affirmation"?  I would argue that yes we have.  Like I said earlier, the woman that argued that the "kid" was being a "smart *ss" felt he should have just rolled his window down.  It's not a requirement.  Why would it be?  If it's super hot outside and you have an air conditioner that can barely keep up or if it's super cold outside, while you might feel for the officer, do you really want to lower your window all the way?  Probably not.  If you have a manual window handle, do you really feel like it if you know that he's just going to look at your valid driver's license and take a whiff inside the window to see if he smells alcohol?  I'm basically lazy.  I'm not going to want to roll it all the way down either.  So, he has an automatic window.  How does that change the requirement?  Simple.  It doesn't. 

You also have to understand in this particular incident the young man did absolutely nothing wrong.  He was not being pulled over because he had a light out or he was speeding.  He was being pulled over because it was a checkpoint.  There's an irony here.  Checkpoints may not be legal based on this Amendment.  Checkpoints assume that you have no rights.  You are using a privilege when you are driving, not a right, is the standard argument.  You sign certain rights over when you agree to use the privilege, including consenting to checkpoints.  Of course, I think the Founding Fathers would be rolling over in the graves at this.  The Crown used checkpoints to search for all kinds of things and seize anything they deemed to be improper.  Checkpoints were actually one of the grievances listed to the Crown prior to the American Revolution.  Colonists were not allowed to move freely from town to town without documentation from the local military authority or the local Crown appointed magistrate.  There were a slew of real and imagined concerns that the Crown used checkpoints for and without proper documentation you could be turned around, arrested and held without due process, your goods and belongings seized or all of these things.  Not a big fan of checkpoints because I believe it goes against the embodiment of the 4th Amendment if not the actual wording.

Now, there is that pesky it's a privilege not a right ruling.  Well, not so much as a ruling as an application of the 4th Amendment argument that some jerk lawyer made to limit others' rights.  Is driving a privilege?  Well, is riding a horse a privilege?  Driving a horse and buggy?  Owning a weapon?  We take away "rights" when someone proves they are not to be trusted with that right.  For example, we do not allow convicted felons to own guns.  They can petition to  have the right to bear arms reinstated, but until they have successfully done so, they cannot own weapons of any sort.  Interestingly though, by being a convicted felon, our society does in fact take the 2nd Amendment right from them.  So now, back to this young man, since he has not proven that he is not to be trusted driving, do the police officers actually have the right to stop him and ask for any documentation?  This is the conundrum.  Is it a right to drive?  In the 1980s, MADD made it a point, and won, that driving is a privilege.  We do not have the "right" to drive.  We must be licensed, we must pass a test, we must be a certain age and therefore, driving is a privilege.  What's the difference between privilege and right?  A right is ours because it is afforded to all of us--either by age or by some other standard and we have the right no matter what.  Voting is a right, after we turn 18.  Voting is a right protected by various Amendments and the Constitution.  But not until we are 18, and we have to register to vote and are given a registration card that most states require you present when voting unless placing an absentee vote.  Owning a gun is a right, unless we are convicted felons.  We still have to register a weapon if we buy from a licensed dealer.  So driving is a privilege and you give up your rights before you even get started.  Note now that states make us sign over certain rights by laws that they have passed that say we accept those laws and regulations by using and driving under the license they issued.  I have a very strong opinion on this, but I ask you to think about it.  Is driving a privilege?  The fact that states have us signing over our "rights" alone kind of implies that they know it is a right that they truly should not strip us of until we screw up.  But if it is a right, do they have the right to checkpoints?  Voting was a right but the Deep South at one point in time denied certain people their right to vote but implementing testing rules and making voting a privilege where you could only vote if you passed a test.  Privilege could be viewed as a fancy way for the government to take rights away.  The great debate is then what is a right versus a privilege has been sparked since the birth of this nation.

In fact, some states are expanding this concept of privilege.  Texas requires by law that you must give up your identification to a Texas law enforcement officer if asked or you will be arrested.  Same clause in the documentation that you agreed to when you received that driver's license or state issued identification.  It's a little scary if you think about it.  There's no requirement in the Texas law that the officer needs to have a precipitating reason to ask.  He or she asks and you do not comply, you go to jail.  Well, the argument goes that Texas has a huge problem with illegal immigrants.  Hilarious if you think about it.  Texas became its own country and eventually a state because of illegal American immigrants that swarmed into the then Mexican territory.  Eventually, the illegal American immigrants outnumbered the Mexican authorities, started their own rebellion, and for all intensive purposes took the land from Mexico.

Do you think of a Passport as a privilege or a right?  The Federal government actually does not limit whether any American can get a Passport.  Any one of us can get a Passport and travel as we please.  We may not be able to fly directly to certain countries and it may not be wise to with an American Passport.  However, we are not limited by the Federal government.  How is the driver's license different?  It's food for thought.  We give up our rights that our luggage can be inspected.  Not until we fly.  So the driving being a privilege concept?  Not until we drive.  The good of the whole versus the good of the individual.  

Search and seizure and the 4th Amendment are not just about whether the police breakdown your front door looking for proof of illegal activities or the weapon used in a murder.  That's the television version of our rights.  The 4th Amendment is supposed to protect us from anyone just going through our things whenever we haven't done anything to warrant such a search.  That includes our purses and wallets, so why would we have to pull something out of our wallet or purse just on the say so of an officer?  I don't know the answer.  While I'm loathe over the possibility that a criminal goes free, I'm even more loathe over the possibility that an innocent person ends up sitting in jail because they didn't have their identification on them when a Texas Ranger asks for their identification. It is our right to refuse any search unless an officer has proof otherwise.  The 4th Amendment is clear there.

Should you roll your window all the way down in a traffic stop?  Are you just being a smart *ss?  Are you allowed to be?  Arguably the police can make your night difficult, but really can they?  The 4th Amendment says they need a judge to say they can actually make your night difficult.  Would a judge issue a warrant to search someone's vehicle if the cops said he was acting "iffy"?  Probably depend on the judge and his or her mood when the cops woke him or her up in the middle of the night.  Does that mean they ignore you telling them no they can't and that's OK?  No.  It doesn't.  If we have not committed a crime, we are not suspected of committing a crime because of sworn testimony to a judge to issue warrant, then why in the heck would any privileges be taken away?  Rights or privileges, after all is the real problem now.  The truth is we are own worst enemies.  If we view it as ridiculous and smart *ssy to tell a police officer "no sir, I do not consent to a search" we give up our 4th Amendment right without a thought.  Then we actually demand others to do the same.  Then we expect that is the acceptable, the only acceptable, behavior.  We expect others to give up their 4th Amendment rights because we did and then eventually the police expect that we will also.  That is how a police state like Nazi Germany gets started.  If you choose to give up your 4th Amendment rights, that is your choice, but the thought that we have to is a slippery slope that none of us should be entertaining.    

Friday, July 17, 2015

The Third Amendment...

Ah, the shortest blog of this series I suspect.  The Third Amendment of the United States Constitution.  Did you have to look it up when I baited at the end of the last blog?  Yea, one of the Amendments everyone knows exists but aren't really sure what it says.  Hardly anyone ever talks about it.  It's not very arguable.

"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."

OK, so it states no military troop can be "quartered", another words living, in any house without the consent of the person who owns the home.  I would assume it would also apply to a renter, although it doesn't say that.  That little conundrum could end up in front of the Supreme Court I suppose, but most rental contracts are pretty clear that the home is the renter's home also while all terms of the rental agreement are met.

But it states "nor in time of war, but in a manner to be prescribed by law."  Another words.  Yes, the government can quarter troops in your home, but only during time of war as prescribed by law.  For the most part, we have never "quartered" troops by any law passed by the Federal government.  People are known to have volunteered their homes or barns in the wild west days as the troops might be moving from one place to the next.  There are documented cases of parts of homes being volunteered as quarters during the war with Mexico, mainly as officer quarters.  During the Civil War, food was quarantined and homes were forced quartered, but these were under military orders during wartime in a war zone.  Typically, enlisted were not quartered but issued tents or slept outside.  So, generally, the military that was "quartered" were officers.  These would be the only precedents set to date.

I tried to find anything else.  But the truth is that's it.  When we went overseas for the World Wars, we took homes and other buildings as bases, often without consent.  Again, war zone I suppose.  Yet, our Constitution would not apply and frankly we were busy saving people's bacons from Nazis and other oppressive forces.  In many cases, food was reimbursed and funds were disbursed for use of many of the facilities until we built make shift facilities or made former military sites usable again.

Kind of boring.  One sentence again.  Not that complicated, and to a previous point.  Anyone with an eighth grade education should be able to read it and give back the gist of what the sentence means.  If someone tells you it's very complicated, none of it is.  The Bill of Rights were written for everyone, and as such, were written simply so that everyone could understand them.

Next time, the Fourth Amendment.  This should be a favorite...aka.  Search and Seizure.  It's probably going to be a long one...the research alone is extensive...

Tuesday, July 14, 2015

The Second Amendment: The Right to Bear Arms

Next up, the Second Amendment.  The Right to Bear Arms is what a lot of people know it as.  It is one of the most debated laws in our country and that debate stems back to the Civil War.  Yes, actually.  Prior to the Civil War, it wasn't really debated.  The average person didn't think twice.  The pioneers needed guns to protect themselves from wild animals and predators.  The average farmer needed it to hunt food and protect the homestead.  Guns were not cheap.  Most people didn't stock pile them.  They were made by hand and took time and craftsmanship.  Sam Colt would eventually introduce mass produced revolvers (aka. hand guns) in the early 1900s, but prior to that, revolvers were only for the rich, lawmen and well, bluntly, outlaws.  A Colt revolver in 1880 sold for a $20 gold piece.  The average household income was a little over $300 a year.  So a revolver was almost a month's income for over half the population.   

"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."

That's not very much there. One sentence and yet, one of the most debated sentences in the history of man, let alone the United States.

"A well regulated Militia,"

Let's consider current definitions:

"Well" in front of a word implies the same thing in the past as it does now. More, extra, very.

"Regulated" currently means control by means of rules and regulations, pretty much the same as it did when it was written.

"Militia" is a military force raised from a civilian population to supplement an army during an emergency situation.

There's where the debate begins. Those four words. Many would argue that a "militia" is no longer needed or that we maintain State Militias already in the form of the National Guard. By definition of those 4 words only, that seems to be clear, right?

"...being necessary to the security of a free State,..."

There's pretty much little to no argument associated with those words specifically. The wording implies that it attaches to the previous 4 words as a descriptor. Those that would argue the National Guard is the "militia" would definitely agree on it being for the security of a free State. Of course, it does not use the plural of the word at all. Capitalized and singular means that it would refer only to one "State", the actual Nation herself. On the other side of the argument, though, here's where the debate begins. The whole point of the American Revolution was because people were forced to give up their guns by appointed military and governors of the Crown. From their point of view, the security of the a free State is not necessarily guaranteed by the National Guard. The National Guard is still part of the United States Army, and while each answers first to its State's Governor, ultimately, every member of the Guard is answerable to the President of the United States. They swear the same oath as any other military member of the United States. There are plenty of examples of facist regimes that have used the military and guards to overrun the civilian population for control and take over. So the common argument is that these troops might be turned on the civilian population and many believe that this is the concern that the Founding Fathers were addressing. Given the original grievances that were sent to King George, particularly about having to house redcoats without being reimbursed and without consent, this is probably a very viable argument.

"...the right of the people to keep and bear arms,..." 

To many that would argue against the Founding Fathers meant this only to imply a standing army or standing guards, well, this portion of the Second Amendment is a big problem and it is always the fall back in every argument for un-infringed weapons ownership. It's pretty clear that the people are us, the every day average American. It's pretty clear the right they are referring to is ours, the people's, the everyday Average Joe and Jane.

"...shall not be infringed."

And there it is. It shall not be infringed. Really simple, right?

Now here's the stickler for me. I was raised surrounded by English and Literature teachers. The commas as they are written offer a unique grammatical analysis. Going back to around 4th and 5th grade grammar, like I stated in the very first blog of this series, the Founding Fathers wanted anyone, and I do mean anyone, to be able to read and understand the basic gist and form an opinion. This particular series of words is separated as if those first three parts of the sentence are separated parts. Try to think back to when you did sentence charting in elementary school where you broke down the subject and its descriptors, the action and the result. The noun and its adjectives, the verb, and the secondary noun. Then to compound sentences. This and that. This to me, is a compound sentence with two primary subjects...because of those commas. In proper English, there should have been an "and" someone once told me. However, in old proper English this was not required. In fact conjunctions were viewed as improper when the document was written, so our need for conjunctions as our language has and continues to develop may make the argument more complex in itself.

By proper English there would be two parts that could be broken into two sentences:

"A well regulated militia, being necessary for a free State, shall not be infringed."

"The right of the people to keep and bear arms shall not be infringed."

A militia, just the word, implies that the Union has the right to maintain our freedoms with a group of civilian volunteers. That is the National Guard in a nutshell.

The right of the people is pretty cut and dry then also.

Unless the interpretation puts the primary focus on the "well regulated militia, being necessary".  Then the first sentence becomes the main right and the second sentence is a feeder to the first. In which case, we would call it the Freedom to have a Militia.  Another twisted view that resulted in crazed groups like the Michigan Militia (you remember the bomber of the Oklahoma Federal Building, right?), Ruby Ridge and the Branch Davidians.   I've never heard it called the Freedom to Militia, so personally, I find it hard to back up the idea that is what the Founding Fathers meant.

Now, here's a final food for thought.  The concept of gun control did not start until after the Civil War.  This is a fact.  There were rights of businesses to say that you couldn't bring you gun into their establishment and even towns.  But none of that ever started until after the Civil War.  The concept of gun control started with Jim Crow laws.  After the Civil War and Reconstruction ended, many of these laws were created to keep the freed slaves in their place.  A gun permit was needed and often former slaves were simply given whatever crazy reason the counties or cities could come up with to deny the permits.  It also allowed the racists to have public record of what weapons any one that opposed them had.  There is a very strong reason that the South is so tied with this freedom.  When you stifle a right, the opposition will raise its head.  While the initial effect of the Jim Crow laws prevented the freed slaves from owning weapons, it also meant that a lot of whites were told no for various ridiculous reasons too.  There was a case of a sheriff in Georgia who wouldn't let a man keep any of his rifles.  The story was that there was some debate between the two over a family heirloom, some rifle.  Eventually, voted into office as Sheriff, he simply made sure his distant cousin had no permits and seized all the guns, including the heirloom.

The history of gun control aside, it is difficult to decide how to view gun control.  The Founding Fathers certainly couldn't have imagined that we would create guns that could fire hundreds and hundreds of rounds per minute or automatic weapons or whatever.  Still, as anyone knows most gun owners are far more responsible with their weapons and generally are taught a stronger respect for the power of any weapon.  People who have never been around guns certainly have no use for them and probably don't see why anyone else would.  To some it just seems barbaric and still others view it as criminal only.  There's some truth to each of those, some extremism to each of them, and some place in the middle somewhere with compromise.  I have my opinion.

This whole debate started because a bunch of racists wanted to make sure that they had control of "free" people and still wanted to treat them like children, animals or just as lower and less.  Gun control is one of the last vestiges of racism.  Criminals will be criminals.  The UK has a higher murder rate per capita than the USA, and they allow no guns.  People kill with all kinds of weapons.  Gun control started with denying some people their rights for no reason and slipped through the cracks because of the vague wording of the Second Amendment.  OK, that's my opinion.  Next time, the Third Amendment....Good news, it will be a short one.

Tuesday, July 7, 2015

The Bill of Rights: The First Amendment

Okay, I listen to people argue about certain Amendments all the time.  Yet, most of the time, they have absolutely no idea what the words of the Amendment are and they argue over and over who's right and who's wrong.  It's kind of like listening to someone argue whether the color melon and peach are different or not.  Yes, sort of and no, not really.  So in the last blog, I stated I was going to introduce the Bill of Rights, one by one, and present the definition, which for all intensive purposes means the opposing sides and how they are opposing and let Joe or Jane Layman make up their own minds.  That's called education.  We don't spoon feed "facts" as we would like them in the educating process.  We feed the minds the concepts, the opposing views and interpretations and let people make up their own minds.  The biggest problem in this country right now, in my humble opinion, is the spoon feeding process of the media, spoon feeding of incorrect history and facts and sometimes just straight out bullsh*t.  So, let me introduce you to the First Amendment of the Constitution of the United States:

"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."  

Yes, that's it.  All that great debate on television, social media, all that crap that some people will tell you that it's very wordy and complicated is well, crap.  But let's break it down a little for conversation sake.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."

This is what most of us call the Freedom of Religion.  There have been so many arguments that this is a country founded on Christianity.  That's not there.  There are arguments that it says nothing about God.  True.  Doesn't mean that some people can't interpret it that way.  What is not open for discussion:  No laws can be created by a State or the Federal government telling us what we can or cannot worship.  We cannot close the Catholic or Mormon churches down.  Their right to worship is protected.  We cannot tell anyone that they cannot build a Synagogue or Mosque or Buddhist Temple and worship how they choose.  It is actually why Rastafarians can legally smoke pot because of their religion.  Of course, it doesn't say that they are guaranteed to work or not be arrested or cited if they do smoke it.  It is also why we are having problems with measles right now after it was declared eradicated, because some religions do not believe in vaccinations.  That last one will ultimately weigh the public good versus the First Amendment rights of the people that practice that religion.

Ultimately, these cases can and have and probably will be brought to the courts.  That is where the debate begins.  Arguments for the public good usually trump individual freedoms.  I'm pretty sure none of us want a pot smoker flying a jumbo jet if he is currently under the influence, but if the pilot hasn't smoked it in 12 or 24 hours, many of us might not see an issue with it.  We mostly don't want our children around other children that haven't been vaccinated, because we all know that kids, especially when they are younger, can bring home every new cold strain, flu virus, and they can spread stuff like wild fire.  Of course, then the argument is public safety.  The Supreme Court has ruled over and over that the good of the public does trump individual freedoms.  So there's nothing actually saying that they have to comply with vaccinations if they want to home school.  The arguments for each individual religious case will have emotional arguments and it's up to the courts, if it gets that far, to remove the emotion and determine the case based on what is said in the Constitution and the historical rulings of the past.

The Freedom of Religion, the Freedom to be free from persecution just because we worship differently was so important, it was added first and foremost.  Whether we agree with someone else's religion, whether we understand it, everyone is allowed their religious beliefs.  It doesn't say "Christianity" specifically.  The vague wording creates an umbrella that means everyone, every religion, are covered.  A Nation founded "under God", well, not debatable, right?  Well, maybe.  Maybe not.  Ben Franklin was a notorious womanizer and had a reputation for speaking out against organized religion too.  So, even that can be debated.  Regardless, we are a Nation of any and all religions, including the right to not believe in any religion at all.  The rest is all up for debate.

"...or abridging the freedom of speech, or of the press;..."

Freedom of Speech.  Look how simply it was written.  I mean really.  Very, very simple.  No one can "abridge" our rights of Freedom of Speech.  Or, right, that pesky "for the public good" thing.  Like I stated earlier, we're not going there, yet.  Just suffice to say, get up on your soap box all you want.  Short of inciting crimes, bam, you are good.  Freedom of the Press.  Same deal.  But over the years, the Freedom of the Press has been limited, but not by much.  The courts almost always side on the cautionary side when it comes to both Freedom of Speech and Press because it's not very debatable as a whole.  Simpler words have not been written; even a young child can grasp the overall meaning of the words as they were written over 200 years ago.

 "...or the right of the people peaceably to assemble,..."

The right to assemble.  Hate groups love this one.  Both sides.  Ironically, ever noticed that hate groups always have a side and an opposing side?  The rest of us have varying degrees of gray areas, but not hate groups.  There must be a "right" side and a "left" side, a "right" or "wrong", a "yes" or "no", a this way or the highway.  Life is not that simple, but how do we address that overly simplified view of the world?  I mean seriously, there have always been opposing views.  This is not a unique thing to the last 20 years or 50 years.  But how do we get out there and share our views, our opinions or even make sure that someone knows that we are boycotting?  There wasn't an internet just 30 years ago.  So the right to assemble and discuss was considered paramount to the growth of a new Nation.  The tricky word here is "peaceably".  Basically, rioting is not "peaceable" in any way, shape or form.  Doesn't take a rocket scientist to recognize that is definitely not "protected".  However, this is not the easiest right to enforce and is one of the easiest to be taken away just by saying the gathering wasn't "peaceful".  Thus why this particular right continues to be debated.  Just think, even in the late 1800s many suffragettes met in secret because public assembly, peaceful public assembly, could land them in jail.  Peaceful gatherings during the 1960s that were against the Vietnam War were often turned into a full scale gassing, arrests and even beatings.  Often when opposing views converge, the word peaceful goes running out the door faster than a jet breaking the sound barrier.

"...and to petition the Government for a redress of grievances."  

Petition.  There are several ways to "petition" the Government.  The most obvious is the simple definition of "petition"--get a ground roots, signed petition going and get a massive amount of people, legal age, voting age, American citizens to sign, right?  No, not just legal age, not just voting age and no, not just American citizens.  Railroad workers in the early 1800s tried to get redress for their working conditions and they were primarily Irish and Chinese immigrants.  The Government has long recognized the immigrants in this country and honestly had a hard time back then identifying "illegal" versus "legal", so historically, we allow anyone in this country to petition the United States Government for redress.  Petition doesn't just mean by petition either, as in the example provided, it can mean via the court system with a lawsuit brought in front of a judge, that eventually could end up in front of the Supreme Court.  We can petition Congress, the President, the Court system for redress of our grievances.  It all depends upon what we want redress for.  This is often one of the statements that is used when the Government is not doing what one group wants and they talk about not recognizing the Government.  The idiot who blew up the Oklahoma Federal Building believed that the United States Government was not addressing his grievances, but he made no real effort to petition.  Saying that you're not paying your taxes is not an official petition.  In fact, it's not a petition at all.  Continuing to pay your taxes and going to your State or your Congressional leadership with petition for redress well it all sounds so easy.  But anyone that has ever tried to navigate the bureaucracy of State or Federal governments knows this can be very, very frustrating.  And worse yet, the redress may not result in the end outcome that was being petitioned for.  That can be shot down.  Still, so many people don't understand what redress is, and worse yet, they don't know how to petition anymore.  The petition for the legalization of the vote for women was almost 100 years in the making.  At least 3 generations fought for it before it came to fruition.  So the great debate, can we fix the "system"? Can redress be provided quickly?  Which redresses are right and which are frivolous?  There in lies the real debates.

Basically when it comes to debating the First Amendment of the United States, the wording is super simple.  We are never actually debating what it says or even what it's basic interpretation means.  We are debating how we think it should be applied.  Don't tell someone that they are wrong because their interpretation is different than yours.  Recognize that each interpretation is debatable, until the Supreme Court says it's not.  And eventually, even the same debate may be overturned by a different Supreme Court.  Prior to the Civil War, the Supreme Court ruled that the First Amendment did not apply to certain people.  The Freedom to Assemble and Speech were only applicable to some Americans, not all.  Eventually, they ruled this was ridiculous.  Same Supreme Court, different Justices, different times.  Thus why often the words "living document" are used when describing the Constitution.  It lives in our times, just as it lived in past times.  It lives without changing with the changing times.