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The original Bill of Rights consisted of the first ten amendments to the Constitution. Twelve amendments were proposed, but two were not ratified. The Bill of Rights took effect December 15, 1791, when Virginia became the eleventh state to ratify the amendments.
Many people consider the First Amendment to be the most important amendment in the Bill of Rights. It has four provisions that protect freedom of religion, speech, and the press, and the right of citizens to assemble and petition the government. These rights are vital to a representative form of government.
The religious freedom provision has two clauses: the establishment clause and the prohibition clause, which is also called the free exercise clause. The establishment clause forbids government from creating or endorsing an official church or formally supporting religious activities or showing preference for one religion over another. This clause results in what Thomas Jefferson referred to as the "separation of church and state." Most contemporary court cases involving the establishment clause concern religion and education. It has also been cited in cases involving religious displays on government property.
The prohibition clause prohibits government from interfering with religious beliefs. In applying this clause, the Supreme Court has distinguished between religious belief and action. For example, the Court struck down polygamy as a protected religious practice in Reynolds v. U.S. in 1879. The Court ruled that the prohibition clause did not protect actions that were "violations of social duties or subversive of good order."
The First Amendment's freedom of speech provision is closely related to the ones that follow it: freedom of the press, freedom of assembly, and the right to petition the government. The degree to which the Supreme Court has upheld the right to free speech has varied, depending upon the type of speech at issue. Pure speech, involving only spoken words, has received the greatest protection. However, speech combined with action, such as picketing, has received limited protection. While picketers have the right to speak freely, their actions on the picket line may be regulated by government. First Amendment protection of symbolic speech, such as burning draft cards or flag burning, has been mixed.
The Second Amendment in the Bill of Rights has been the subject of much controversy. It reads:
"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."
The amendment's ambiguous wording has resulted in continual debate about the intent of the Founding Fathers. Some people believe that the phrase "well-regulated militia" implies that only members of an official militia have the right to bear arms. Many supporters of this argument contend that the Second Amendment protects only the rights of states to arm National Guard troops, the modern-day version of the organized militia. Others argue that the amendment gives private citizens the right to own firearms, pointing to the historical definition of militia, which included everyone in the community. Proponents of this view also cite the amendment's phrase "right of the people" as evidence that the founders meant to extend the protection to individuals.
The debate over the Second Amendment is often the result of community efforts to implement or expand gun control or regulation. The issue moved into the national arena in 1997, when the Supreme Court struck down the Brady Handgun Violence Prevention Act, also known as the "Brady Bill," in Printz v. United States. The Brady Bill required local police to conduct background checks before a citizen could purchase a handgun. The Court ruled that the law was unconstitutional, but not on Second Amendment grounds. The Court struck it down because the law required state officials to implement a federal program, which violated federalism.
Despite the ambiguity inherent in the amendment, no federal court has ever struck down gun control legislation on Second Amendment grounds. The courts have held that the Second Amendment applies only to the national government, not the states. Consequently, some local governments have implemented gun control legislation by banning handguns in their communities.
The Third Amendment concerns the traditional militia during a time when the government could force citizens to house and feed its troops. Patterned after the English Bill of Rights, the Third Amendment prohibits such actions by government during peacetime. It also states that if the government has to quarter its troops during war, it must follow legal procedures. The Third Amendment has never been the focus of a Supreme Court case, but it has been cited by the Court in cases involving privacy rights.
Privacy rights are also central to the Fourth Amendment, which protects citizens from unreasonable searches and seizures and requires search warrants to be based on probable cause. At first, the Supreme Court held that the Fourth Amendment applied only to searches of a protected area, such as a home, office, or a physical body. But in Katz v. United States (1967), the Court ruled that the Fourth Amendment applied whenever a person had a "reasonable expectation of privacy." The case involved a man who was convicted using evidence gained from police wiretaps of a public telephone booth. The Court overturned the conviction, making the expectation of privacy a critical test for determining Fourth Amendment protection.
The second part of the Fourth Amendment is called the warrant clause. It mandates that all warrants—court orders for searches and seizures—must be based on probable cause. Probable cause is said to exist when a person of reasonable caution would believe that a crime has been, or is about to be, committed. The warrant clause also requires warrants to describe in detail the place that will be searched and the evidence that will be seized. This provision is called the particularity requirement.
The Fifth Amendment is also concerned with protecting citizens' rights in crime-related matters. It gives criminal defendants the right to a grand jury indictment and prohibits a defendant from being tried twice for the same crime, a situation known as double jeopardy. The Fifth Amendment also says a defendant does not have to testify against himself. Exercising this protection against self-incrimination is commonly known as "pleading the fifth."
The Supreme Court has ruled that a confession can be used as evidence against a defendant only if it is voluntary and not coerced. In the case of Miranda v. Arizona in 1966, the Court expanded the Fifth Amendment's protections, ruling that a suspect must be advised of his rights before questioning. This landmark case instituted the famous Miranda warnings that police are required to recite to suspects before any interrogation begins. Any statements made by the suspect before the warning is given cannot be used as evidence at trial. If the suspect invokes the right to remain silent, or requests an attorney, police must suspend any attempts to get the suspect to talk.
In addition to protecting the rights of criminal defendants and suspects, the Fifth Amendment ensures due process of law in civil and criminal cases. Due process means that the government will be fair in its actions. The Fifth Amendment also requires the government to provide fair payment when it takes private property for public use which is called eminent domain.
The Sixth Amendment concerns a defendant's rights at trial. It guarantees the right to a speedy, public trial by an impartial, local jury. It gives the defendant the right to be informed of the charges against him, to confront his accusers, to subpoena witnesses to testify on his behalf, and to have the assistance of an attorney and other resources in preparing a defense.
The Seventh Amendment provides the right of trial by jury in civil cases, in which private parties argue non-criminal disputes. The amendment also prohibits jury verdicts from being overruled, except in certain circumstances provided for by law.
The Eighth Amendment allows defendants to be released on bail pending trial and requires that bail will not be excessive, but it does not guarantee the right to bail. Federal and state laws determine the conditions under which bail may be granted. For example, bail may be denied in cases involving the death penalty or those in which the accused has threatened potential witnesses. The purpose of bail is to ensure a defendant's appearance at trial and is based on the principle that a person is innocent until proven guilty. If the defendant is convicted, the Eighth Amendment prohibits excessive fines as punishment. It also forbids "cruel and unusual punishment," a phrase that has been used frequently by people to argue against the death penalty.
The Ninth Amendment states that the rights listed in the Bill of Rights are not the only rights that citizens have. It says that the people retain other rights not specifically listed in the document. The Ninth Amendment has created controversy when used by the Supreme Court to expand individual rights, as it did in Roe v. Wade, which established abortion rights. In that case, the Court ruled that although not specifically mentioned in the Constitution, the right to privacy was implied by invoking the Ninth Amendment. In 1989, the Court issued a ruling that compromised the protections under Roe v. Wade by upholding a Missouri law that imposed restrictions on abortion. The Court's ruling permitted states to make laws in an area that had been previously forbidden under Roe v. Wade.
The Tenth Amendment, also called the "states rights amendment," is the final amendment in the Bill of Rights. Its purpose is to limit the powers of the national government, thereby protecting individual rights. The amendment attempts to balance the power of the federal government with the power of the states. It gives to the states all powers not reserved for the federal government or prohibited by the Constitution.
Copyright 2006 The Regents of the University of California and Monterey Institute for Technology and Education