24) USA

A SHORT ANNOTATION OF THE BILL OF RIGHTS (continued)

AMENDMENT II: THE RIGHT TO BEAR ARMS 

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.

    Amendment II: the RIGHT TO BEAR ARMS - There is no definitive opinion or holding on exactly what this amendment protects. Instead, there are academic theories: an individual rights thesis, protecting ownership, possession, and transportation; and a states' rights thesis which allows state-level armed militias (civilians primarily, soldiers on occasion). There are also numerous pieces of legislation, some components of which have come before the Court for review, but the context of these cases have had less a direct bearing on this amendment than on law enforcement issues generally. 

AMENDMENT III: QUARTERING SOLDIERS

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.

    Amendment III: QUARTERING SOLDIERS - There is no definitive opinion or holding on exactly what this amendment protects. In fact, there has not been one single judicial ruling that is even closely related. Many constitutional scholars believe that it is expressing one more guarantee of civilian control of the military.

AMENDMENT IV: FREEDOM FROM SEARCH AND SEIZURE

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.

    Amendment IV: the RIGHT TO BE SECURE - This right has its origins in the English common law that every home is a castle and the vigorous efforts of Samuel Adams to expand the right during America's colonial era. The phrase persons, houses, papers, and effects has both broad and specific meanings. The broad interpretation goes beyond the items listed and considers protected anything having to do with the comforts of society, or solace (a term meaning the place a person goes to derive comfort, relief, or cheer from the humdrum tedium of everyday life). The strict interpretation defines persons as only those who have formed a sufficient connection with society (aliens and hermits are presumably excluded) and looks at the details of what constitutes the threshold of a home and reasonable expectation of privacy (e.g., locked boxes). The right to secure property is considered a sacred good and end of society; infringement on that right, ever so minute, is considered evil, and a trespass. The Court has held, however, that electronic intrusion (wiretapping) is not part of this good/evil juxtaposition, and that balancing tests are necessary to weigh government and individual interests.

    Amendment IV: the REASONABLENESS CLAUSE - This generally applies to the context of warrantless arrest and warrantless search and seizure. The reasonableness standard pervades a wide range of criminal justice activities, but it primarily governs the complete area of suspicion and is a prerequisite for the stricter standard of probable cause. The founding fathers were mostly concerned with the character of warrants, but they never disputed the need for warrantless action, particular when arrest and search are combined on the spot. Reasonableness, at minimum, requires articulable facts, as in stop and frisk and profiling situations. Questions and disputes have arisen, however, over whether to read this clause as independent or connected with the warrant clause. If read independently, then there may be some searches reasonable under the first clause which need not comply with the second clause. If read together, then there may be some seizures even under warrants which could be unreasonable. There's also the debate over whether reasonableness applies to when it is practical or reasonable for police to get a warrant or whether it refers to the reasonableness of searches generally. The Court has reversed precedent on this and other areas of this amendment. Overall, the Court has adopted a view that the two clauses are related in a warrant with narrow exceptions approach. The issue of scope in the warrantless context is regarded as critical. Some groups (e.g., prisoners, students) have been declared to have diminished expectations of privacy, and the Court seems willing to multiply exceptions in areas that are exclusively criminal in nature or forums in which relaxed standards are more appropriate.

    Amendment IV: the WARRANT CLAUSE - This generally applies to the context of warrantful arrest and warrantful search and seizure. It requires the use of an independent magistrate who acts as a buffer between police and privacy, and more importantly, establishes the standard of probable cause, which serves as the basis for arrest, the sufficiency for further processing, and grounds for challenging the validity of warrants as well as evidence in suppression hearings. Probable cause applies to the scene as well as the review by a magistrate, but it's clear that the concept is more a judicial construct than a law enforcement principle. Probable cause established by an informant's tip has drawn much of the Court's attention, resulting in totality of circumstances tests which essentially require corroboration of circumstantial evidence. The purpose of the warrant clause is to keep police out of constitutionally protected areas unless they have reason to believe a crime has been or is being committed.    

    Amendment IV: the PARTICULARITY CLAUSE - This requires that warrants describe the things to be seized and prevents the seizure of anything not mentioned in the warrant. Things include contraband, the fruits, and instrumentalities of crime. The clause limits the scope of searches to places where described objects could be expected to be found. In wiretapping cases, specific communications, conversations, or discussions must be described. The concept of scope is inextricably tied to the circumstances which make the intrusion lawful, so any lawful intrusion may carry with it plain view exceptions even if such evidence is not described in the warrant. Additional rules apply to large-scale seizures, obscenity cases, and emergency situations. The Court seems willing to consider the special needs of government in such cases, and although it punishes police who overstep their discretion by going on fishing expeditions via the exclusionary rule, it also places an onus of responsibility on courts to provide workable forms for police to use via the good faith exception.      

AMENDMENT V: FREEDOM FROM SELF-INCRIMINATION

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.

    Amendment V: the GRAND JURY CLAUSE - The theory of grand jury, taken from English common law, is to provide for a body of people unhampered by rigid procedural or evidential rules, able to act independently as an instrument of justice. It has not gone without criticism throughout history, but the founding fathers overlooked this and thought of it as a shield against prosecutorial abuse, insuring that serious criminal charges be brought before one as a check on prosecutorial power. Grand juries exist throughout the federal system, and a few states use them regularly, but their most common usage is with their special investigative function. In a series of rulings from Hurtado (1884), Palko (1937), and Alexander v. Louisiana (1972), the Court has clearly indicated this clause applies only to nonmilitary federal courts.  It remains unincorporated by the Fourteenth Amendment or any other Constitutional provision.     

    Amendment V: the DOUBLE JEOPARDY CLAUSE - The theory of double jeopardy is that the state, with all its power, should not be allowed more than one chance to convict an individual. Otherwise, such uncertainty would undermine the feeling of innocence captured in a not guilty verdict. The practice has deep historical roots, and the Court has used this clause as a rubric for a number of quite unrelated cases, viewing the double jeopardy restriction as fundamental to our constitutional heritage.

Consequently, federal law forbids a federal prosecution following a state prosecution unless the case falls under the dual sovereignty doctrine. The restriction is also binding on the states, and mostly applies to mistrials where the cause is due to circumstances within control of the judge and prosecutor. No new trial may follow an acquittal, but some limited exceptions exist, especially for dangerous special offenders. States are also allowed within certain rules to split single transactions into separate crimes so as to give the prosecution of choice of charges that may be tried in one proceeding.    

    Amendment V: the SELF-INCRIMINATION CLAUSE - This reflects the founding father's preference for adversarial rather than inquisitorial systems of justice. It preserves the adversarial system where a lawyer speaks for the defendant, and it also insures a certain amount of privacy. The privilege is a personal one and doesn't apply to real evidence such as books, appearance and so forth. The clause has found its most application in the area of police interrogation where both environment and conversation can be coercive. Impermissible coercion generally involves forced choice situations where the defendant is robbed of their free will. Immunity privileges coexist with self-incrimination privileges, meaning that the two are not incompatible, even though immunity has the effect of compelling testimony. Compelled testimony usually means a confession, and the notion of a competent confession is also covered by this clause, involving rules on voluntariness, delay, length, and due process, the most prominent feature of the latter being the infamous Miranda rule, which requires reading a suspect their rights and views almost all police questioning as inherently coercive. Subsequent rulings have eroded Miranda somewhat, and created numerous exceptions to it and the exclusionary rule.      

    Amendment V: the DUE PROCESS CLAUSE - It's generally believed that Fifth Amendment due process is more substantive than Fourteenth Amendment due process because of its closeness to the notion of just compensation in the eminent domain clause. However, any broadening of Fourteenth due process also broadens Fifth due process. By itself, the phrase due process refers solely to procedural matters, to process in court, but that is not the interpretation here. This clause is taken to mean that states cannot restrict substantive due process by enacting new criminal laws that impinge on life, liberty, or property.  Due process is more than a procedural safeguard. Even the fairest of procedures could unfairly impinge on life, liberty, or property. Liberty is perhaps the most difficult to define, referring to the full range of conduct which an individual is free to pursue. A complex series of cases and rulings have involved this clause, which is used mainly to strike down grossly unfair and unjust legislation and rule on discrimination cases even though the Fifth Amendment has no equal protection component.    

    Amendment V: the EMINENT DOMAIN CLAUSE - The power of government to take private property for public use, following just compensation, is called eminent domain. The theory behind it to promote the general welfare, safety, health, or morals. It is most commonly seen in cases where energy, transportation, or flood control need to be provided to a community, and the government takes the land, forcing a compulsory sale or auction of the owner's property. The owner's rights give way to considerations of the common welfare, and just compensation usually means fair market value. Governments can also condemn property which requires putting up much less money in the form of security or bond which the owner might not think is fair. Governments can also delegate their power of eminent domain to private corporations.  



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Список использованной литературы:

Merriam Webster Dictionary [Электронный ресурс]. – Режим доступа:  – Дата доступа: 28.01. – 10.02.2016 Multitran [Электронный ресурс]. – Режим доступа:  – Дата доступа: 28.01. – 10.02.2016


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