THOMAS JEFFERSON is quoted as saying that “a little rebellion every now and then is a good thing.” Early Supreme Court decisions defined the amendment as simply granting to the states th
Trang 1A sample application
for a search warrant.
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APPLICATION FOR A SEARCH WARRANT
I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that
I have reason to believe that there is now concealed on the following person or property located in the _
District of (identify the person or describe property to be searched and give its location):
The person or property to be searched, described above, is believed to conceal (identify the person or describe the property to be seized):
The basis for the search under Fed R Crim P 41(c) is (check one or more):
evidence of a crime;
contraband, fruits of crime, or other items illegally possessed;
property designed for use, intended for use, or used in committing a crime;
a person to be arrested or a person who is unlawfully restrained.
The search is related to a violation of U.S.C § , and the application is based on these facts:
Continued on the attached sheet.
Delayed notice of _ days (give exact ending date if more than 30 days: ) is requested under 18 U.S.C § 3103a, the basis of which is set forth on the attached sheet.
_
Applicant’s signature
_
Printed name and title
Sworn to before me and signed in my presence.
Date: _
Judge’s signature
City and state: _
Printed name and title
Application for Search Warrant
UNITED STATES DISTRICT COURT
In the Matter of the Search of
(Briefly describe the property to be searched or identify the person by name and address)
Case No.
AO 106 (Rev 01/09) Application for a Search Warrant
48 SEARCH WARRANT
Trang 2an officer has either personal knowledge or
trustworthy HEARSAY from an informant or
witness The officer must fill out an AFFIDAVIT
stating with particularity the person to be seized
and searched, the area to be searched, and the
objects sought The warrant need not specify the
manner in which the search will be executed
The officer must sign the affidavit containing
the supporting information establishing the
grounds for the warrant By signing the affidavit,
the officer swears that the statements in the
affidavit are true to the best of his or her
knowledge A police officer who lies when
obtaining a warrant may be held personally liable
to the searched person According to the
Supreme Court’s ruling in Anderson v Creighton,
483 U.S 635, 107 S Ct 3034, 97 L Ed 2d 523
(1987), however, a police officer is not personally
liable for a wrongful search if a reasonable officer
could have believed that the warrantless search
would be lawful in light of clearly established
law and the information the officer possessed at
the time
Following theSEPTEMBER11TH ATTACKSin 2001,
the United States government sought to expand
the means by which law enforcement personnel
could investigate potential terrorist activities The
USA PATRIOT ACT OF2001 (Pub L No 107-56, 115
Stat 272) created and expanded a number of
exceptions to the traditional search warrant
requirements Although a person subject to a
search warrant is ordinarily entitled to notice that
the warrant was issued, the USA PATRIOT ACT
allowed magistrates to issue so-called“sneak and
peak” warrants, which do not require police to
notify the person subject to the search Moreover,
the act expanded the abilities of officers to install
“roving” wiretaps of telephones and other
communications devices used by individual
suspects without naming the specific telephone
carrier in the warrant The act also expanded
police officers’ abilities to search stored email and
voicemail messages
Although the provisions of the USA
PATRIOT Act were purportedly designed to
enhance the ability of law enforcement agencies
to prevent terrorist activities against the United
States, many of these provisions could be applied
to U.S citizens who are not engaged in such
activities Several commentators and
organiza-tions, such as theAMERICAN CIVIL LIBERTIES UNION,
criticized the act because of its detrimental impact
on civil liberties Supporters of the act countered
that the attacks on September 11, 2001, could have been prevented if law enforcement had available to it some of the tools provided under the new law
FURTHER READINGS Bloom, Robert M 2003 Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution.
Westport, Conn.: Praeger.
Dash, Samuel 2004 The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft Rutgers, N.J.: Rutgers Univ Press.
Long, Carolyn 2006 Mapp V Ohio: Guarding against Unreasonable Searches and Seizures Lawrence: Univ.
Press of Kansas.
Pitowsky, Robert A 2002 “An Overview of the Law of Electronic Surveillance Post September 11, 2001 ” Law Library Journal (fall).
Rotenberg, Marc 2002 “Privacy and Secrecy after Septem-ber 11 ” Minnesota Law Review (June).
CROSS REFERENCES Automobile Searches; Search and Seizure.
SEASONABLE Within a reasonable time; timely
The term seasonable is usually used in connection with the performance of contractual obligations that must be completed “season-ably.” The facts and circumstances of each case define a reasonable period of time and what would be considered“unseasonable.”
SEAT BELTS
A restraining device used to secure passengers in motorized vehicles
Congress first passed seat-belt legislation in
1966 By the 1990s increased measures were being taken to enforce the laws Under 23 U.S.C
§ 402, a portion of federal highway funds may
be withheld from states if they do not have
an approved highway safety program to reduce the number and severity of traffic accidents
One of the measures a state must include in its highway safety program is a provision that encourages drivers and passengers to use seat belts In 2003 theGEORGE W.BUSHadministration proposed incentives, which would amount to
$100 million in highway funding, for states
to enact mandatory seat-belt laws According
to the U.S.TRANSPORTATION DEPARTMENT,“Every 1 percent increase in nationwide safety belt use means a savings of about 250 lives.”
In states that require the use of seat belts by all drivers and front-seat passengers, the failure
SEAT BELTS 49
Trang 3to use a seat belt is a violation that carries a fine.
In most of these states, police officers do not stop persons in vehicles for failing to use a seat belt This is called a“secondary seat-belt law.”
In West Virginia, for example, Section
17C-15-49 of West Virginia Code states, “Enforce-ment shall be accomplished only as a secondary action when a driver of a passenger vehicle has been detained forPROBABLE CAUSEof violating another section of this code.” In other words, once a vehicle is stopped for any other infraction, the driver may be ticketed if the driver or a front-seat passenger is not belted In other states, such as Washington and Delaware, for example, a police officer may pull over a car
if he or she suspects a driver or a passenger of not using a seat belt This is a called a“primary seat-belt law.” The fine for violating a manda-tory seat-belt law usually is minimal; in Delaware, the fine is $25
As of 2009 New Hampshire is the only state that does not have an adult seat-belt require-ment (N.H Rev Stat Ann § 265: 107-a)
Motor vehicle passengers under the age of 12, however, must wear a seat belt The New Hampshire Department of Safety administers
programs that increase public awareness of the importance of seat belts, and roadside signs placed throughout the state remind drivers that buckling up is mandatory for children and sound advice for all persons During the first decade of the 2000s, several proposals were introduced that would require adults to wear seat belts These proposals were met with fierce resistance, however
All states have some type of mandatory seat-belt laws for children The laws, however, vary
by state They also vary depending on the age, weight, and height of the child For example, in Delaware, children who are under the age of 12,
or under 65 inches tall, must sit in the back seat
of a car if there are active air bags in the front passenger seat Fines for violating child seat-belt laws vary by state In Delaware, the fine for violating the law is $28.75
In an effort to improve child-restraint safety, Congress passed Anton’s Law (H.R 5504) in November 2002 The law was named for four-year-old Anton Skeen, who was thrown from a car because the adult seat belt he was wearing was too large to hold him The legislation, which was signed into law in December 2002, requires improved testing standards for child booster seats and also mandates that automakers upgrade their current seat-belt features In addition, the legislation requires that the National Highway Traffic Safety Administration (NHTSA) con-struct test dummies that can be used in simulated car crashes to determine the effective-ness of seat belts for children
In May 2003 federal and state agencies launched a nationwide effort to mobilize support of seat-belt use The campaign, called
“Click It or Ticket,” coincided with the Memorial Day holiday, traditionally one of the busiest for automobile traffic Some 12,000 law enforcement agencies across the country set
up seat-belt checkpoints between May 23 and June 1 to pull over unbuckled drivers and write them tickets The event was widely publicized in the media to fully enforce the message that during the campaign there would be a zero-tolerance enforcement of safety-belt laws A major focus was to educate young drivers about the importance of wearing seat belts
Despite efforts by Congress to encourage states to bolster their seat belt laws, some states have refused Massachusetts typically has the lowest compliance rate in the United States,
Seat Belt Use, in 2007 a
White
Black
Other races
Youth (8–15)
Young Adult (16–24)
Adult (25–69)
Senior (70 and over)
Percentage who use seat belts
Female
Male
a
Statistics represent safety belt use in passenger vehicles.
83%
75%
88%
82%
77%
83%
88%
86%
79%
Administration, National Center for Statistics and Analysis, Seat Belt Use in
2007—Demographic Results.
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50 SEAT BELTS
Trang 4with more than 40 percent of drivers refusing to
wear a seat belt Nevertheless, the state’s
legislature in 2009 refused about $14 million
in federal funds in exchange for adopting a new
seat belt law
The failure of a driver or front-seat passenger
to wear a seat belt can have consequences in
personal injury lawsuits Under court decisions
and statutes in some states, the plaintiff’s failure
to wear a seat belt can decrease his or her recovery
for injuries in a car accident In other states, cases
and statutes hold that the failure to wear a seat
belt may not be used in court as a mitigating
factor in figuring the plaintiff’s damages
In states that limit the recovery of unbelted
plaintiffs, courts employ various methods to
mitigate damages Under the causation
ap-proach, a plaintiff may not recover damages
for injuries caused by the failure to wear a seat
belt Some states require that the plaintiff prove
that the accident injuries would have occurred
even if the plaintiff had worn a seat belt Other
states hold that the defendant must prove that
the plaintiff’s injuries would not have occurred
had the plaintiff worn a seat belt Identifying
and apportioning the various factors
contribut-ing to the plaintiff’s injuries is a difficult task
Personal injury cases involving unbelted
plain-tiffs in these states rely heavily on medical
EXPERT TESTIMONY
Under the plaintiff misconduct approach,
the court examines whether the plaintiff was at
fault in failing to wear a seat belt If the plaintiff
should have been wearing a seat belt under the
state seat-belt laws, the failure to wear the belt
may mitigate the plaintiff’s damages or
completely bar any recovery
FURTHER READINGS
Green, Marc 2008 Forensic Vision with Application to
Highway Safety 3d ed Tucson, Ariz.: Lawyers and
Judges Pub Co.
LeBel, Paul A 1991 “Reducing the Recovery of Avoidable
‘Seat-belt Damages’: A Cure for the Defects of
Waterson v General Motors Corporation.” Seton Hall
Law Review 22.
Parker, Jocelyn 2003 “Click It or Ticket: State, Nation Step
Up Seat Belt Campaign ” Detroit Free Press (May 24).
Queary, Paul 2003 “Seat Belt Law Comes under Fire.”
Seattle Post-Intelligencer (August 4).
Schorsch, Kristen 2002 “Senator Sponsors Seat Belt
Legislation ” Daily Illini (November 22).
CROSS REFERENCES
Automobiles; Mitigation of Damages; Tort Law.
SEC
An abbreviation for the SECURITIES AND EXCHANGE COMMISSION
SECESSION The act of withdrawing from membership in a group
Secession occurs when persons in a country
or state declare their independence from the ruling government When a dissatisfied group secedes, it creates its own form of government
in place of the former ruling government
Secessions are serious maneuvers that lead to,
or arise from, military conflict
A secession can affect international relation-ships as well as the civil peace of the nation from which a group secedes Most countries consider secession by a town, city, province, or other body
to be a criminal offense that warrants retaliation using force Because the primary mission of most governments is to maximize the comfort and wealth of citizens, nations jealously guard the land and wealth that they have amassed In rare cases, a government may recognize the indepen-dence of a seceding state This recognition may occur when other countries support the indepen-dence of the seceding state However, for most countries, the involuntary loss of land and wealth
is unthinkable
Most countries have laws that punish persons who secede or attempt to secede The United States has no specific law on secession, but the federal government and state govern-ments maintain laws that punish SEDITION and other forms of insurrection On the federal level, for example, chapter 115 of title 18 of the
U.S CODE ANNOTATED identifies TREASON, rebel-lion, insurrection, seditious CONSPIRACY, and advocation of the overthrow of the government
as criminal offenses punishable by several years
of imprisonment and thousands of dollars in fines These are the types of crimes that can be charged against persons who attempt to secede from the United States
TheU.S.CIVIL WARwas the result of the single most ambitious secession in the history of the United States In February 1861, South Carolina seceded from the Union, and Virginia, North Carolina, Georgia, Florida, Alabama, Missis-sippi, Texas, Arkansas, and Tennessee followed suit shortly thereafter These states seceded because they objected to attempts by the federal
SECESSION 51
Trang 5government to abolish the enslavement of black people The mass secession led to four years of civil war and the deaths of hundreds of thousands
of people The seceding states established their own government, called theCONFEDERATE STATES OF AMERICA, and fought the U.S military forces with their own army When the Confederate forces were defeated in April 1865, the seceding states rejoined the United States
In modern times, there has been no popular movement for state secession, although there have been largely tongue-in-cheek calls for large cities, such as New York City, to“secede” from their states and become independent states in their own right
CROSS REFERENCE U.S Civil War.
SECOND AMENDMENT The Second Amendment to the U.S Constitution 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 subject matter and unusual phrasing of this amendment led to much controversy and analysis, especially in the latter half of the twentieth century The SUPREME COURT finally issued a seminal case on the meaning of the Second Amendment when the Court decided
DISTRICT OF COLUMBIA V.HELLER, 554 U.S _, 128
S Ct 2783, 171 L Ed 2d 637 (2008)
History of the Second Amendment
Firearms played an important part in the colonization of America In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans Around the time of the Revolu-tionary War, male citizens were required to own firearms for fighting against the British forces
Firearms were also used in hunting
In June 1776, one month before the signing
of the DECLARATION OF INDEPENDENCE, Virginia became the first colony to adopt a state constitution In this document, the state of Virginia pronounced that “a well regulated
MILITIA, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State.” After the colonies
declared their independence from England, other states began to include the right to bear arms in their constitution Pennsylvania, for example, declared that
the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed
by, the civil power
The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied Some states asserted that bearing arms was a
“right” of the people, whereas others called it a
“duty” of every able-bodied man in the defense of society
Pennsylvania was not alone in its express discouragement of a standing (professional) army Many of the Framers of the U.S Constitu-tion rejected standing armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense According to Framers such as Elbridge Gerry of Massachusetts and GEORGE MASON of Virginia a standing army was susceptible to tyrannical use by a power-hungry government
At the first session of Congress in March
1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England The precise wording of the amendment was changed two times before the U.S Senate finally cast it in its present form As with many of the amendments, the exact wording proved critical
to its interpretation
In 1791 a majority of states ratified the
BILL OF RIGHTS, which included the Second Amendment In its final form, the amendment presented a challenge to interpreters It was the only amendment with an opening clause that appeared to state its purpose
Ambiguous Meaning
Legal scholars have long disagreed about the use
of the comma following shall Some have argued that it was intentional and that it was intended
52 SECOND AMENDMENT
Trang 6to make militia the subject of the sentence.
According to these theorists, the operative
words of the amendment are“[a] well regulated
Militia shall not be infringed.” Others have
argued that the comma was a mistake and that
the operative words of the sentence are “the
right of the people to bear arms shall not
be infringed.” Under this reading, the first part
of the sentence is the rationale for the absolute,
personal right of the people to own firearms
Indeed, the historical backdrop—highlighted by
a general disdain for professional armies—
would seem to support this theory
Some observers have argued further that the
Second Amendment grants the right of
insur-rection According to these theorists, the Second
Amendment was designed to allow citizens to
rebel against the government THOMAS JEFFERSON
is quoted as saying that “a little rebellion every
now and then is a good thing.”
Early Supreme Court decisions defined the
amendment as simply granting to the states the
right to maintain a militia separate from
federally controlled militias This interpretation
first came in United States v Cruikshank, 92 U.S
542, 23 L Ed 588 (1875) In Cruikshank,
approximately 100 persons were tried jointly
in a Louisiana federal court with felonies in
connection with an April 13, 1873, ASSAULT on
two African American men One of the criminal
counts charged that the mob intended to hinder
the right of the two men to bear arms The
defendants were convicted by a jury, but the
circuit court arrested the judgment, effectively
overturning the verdict In affirming that
deci-sion, the Supreme Court declared that “the
second amendment means no more than that
[the right to bear arms] shall not be infringed by
Congress, and has no other effect than to restrict
the powers of the national government.”
In Presser v Illinois, 116 U.S 252, 6 S Ct
580, 29 L Ed 615 (1886), Herman Presser was
charged in Illinois state court with parading and
drilling an unauthorized militia in the streets of
Chicago in December 1879, in violation of
certain sections of the Illinois Military Code
One of the sections in question prohibited the
organization, drilling, operation, and parading
of militias other than U.S troops or the regular
organized volunteer militia of the state Presser
was tried by the judge, convicted, and ordered
to pay a fine of $10
On appeal to the U.S Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms The Court disagreed and upheld Presser’s conviction
The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe the right of states to form their own militias
law forbidding citizen militias was not uncon-stitutional However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms:“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States,” and “states cannot prohibit the people from keeping and bearing arms.”
Despite this generous language, the Court refused to incorporate the Second Amendment into the FOURTEENTH AMENDMENT Under the first section of the Fourteenth Amendment, passed in
1868, states may not abridge the PRIVILEGES AND IMMUNITIES of citizens of the United States The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amend-ment is part Presser had argued that states may not, by virtue of the Fourteenth Amendment,
Firearms Manufactured in the United States, in 2007 a
Pistols
Revolvers
Rifles
Shotguns
Misc firearms
Total
a Does not include production for the U.S military, but does include firearms purchased by domestic law enforcement agencies Also includes firearms manufactured for export.
1,216
391
1,476
644
131
3,859
Firearms produced (in thousands)
SOURCE: U.S Department of the Treasury, Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF), Annual Firearms Manufacturing and Export Report, 2007.
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SECOND AMENDMENT 53
Trang 7Private Militias
Private militias are armed military
groups that are composed of
pri-vate citizens and not recognized by
federal or state governments Private
militias have been formed by individuals
in America since the colonial period In
fact, the Revolutionary War against
England was fought in part by armies
comprising not professional soldiers but
ordinary male citizens
Approximately half the states
main-tain laws regulating private militias
Generally, these laws prohibit the
parad-ing and exercisparad-ing of armed private
militias in public, but do not forbid the
formation of private militias In
Wyom-ing, however, state law forbids the very
formation of private militias Under
section 19-1-106 of the Wyoming
Sta-tutes, “No body of men other than the
regularly organized national guard or the
troops of the United States shall associate
themselves together as a military
com-pany or organization, or parade in public
with arms without license of the
gover-nor.” The Wyoming law also prohibits
the public funding of private militias
Anyone convicted of violating the
provi-sions of the law is subject to a fine of not
more than $1,000, imprisonment of six
months, or both, for each offense
In states that do not outlaw them,
private militias are limited only by the
criminal laws applicable to all of society
Thus, if an armed private militia seeks to
parade and exercise in a public area, its
members will be subject to arrest on a
variety of laws, including
disturbing-the-peace, firearms, or even riot statutes
Many private militias are driven by
the insurrection theory of the Second
Amendment Under this view, the
Sec-ond Amendment grants an uncSec-ondi-
uncondi-tional right to bear arms for self-defense
and for rebellion against a tyrannical
government—when a government turns
oppressive, private citizens have a duty to
“insurrect,” or take up arms against it
The U.S Supreme Court has issued a qualified rejection of the insurrection theory According to the Court in Dennis
v United States, 341 U.S 494, 71 S Ct
857, 95 L Ed 1137 (1951),“[W]hatever theoretical merit there may be to the argument that there is a ‘right' to rebellion against dictatorial governments
is without force where the existing structure of the government provides for peaceful and orderly change.” Scho-lars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government
Some people have disagreed with the Supreme Court's definition of tyranny
Many of these people label the state and federal governments as tyrannical based
on issues such as taxes and government regulations Others cite government-sponsored racial and ethnic integration
as driving forces in their campaign against the federal and state govern-ments Many of these critics have formed private militias designed to resist per-ceived government oppression
Some private militias have formed their own government The legal pro-blems of these private militias are generally unrelated to military activities
Instead, any criminal charges usually arise from activities associated with their political beliefs The Freemen of Mon-tana is one such militia This group denied the legitimacy of the federal government and created its own town-ship called Justus The Freemen estab-lished its own court system, posted bounties for the arrest of police officers and judges, and held seminars on how to challenge laws its members viewed as beyond the scope of the Constitution
According to neighbors, the group also established its own common-law court system and built its own jail for the imprisonment of trespassers and govern-ment workers, or“public hirelings.”
In the 1990s the Freemen came to the attention of federal prosecutors after members of the group allegedly wrote worthless checks and money orders to pay taxes and to defraud banks and credit card companies One Freeman had also allegedly threatened a federal judge, and some had allegedly refused to pay taxes for at least a decade
In March 1996 law enforcement officials obtained warrants for the arrest
of many of the Freemen However, remembering the violence that occurred when officials attempted to serve arrest warrants on another armed group in Waco, Texas, in 1993 law enforcement authorities did not invade the Freemen's 960-acre ranch in Jordan, Montana Although the Freemen constituted an armed challenge to all government authority, its beliefs and its military activities were not illegal, and most of its members were charged with nonvio-lent crimes, such as fraud and related conspiracy Two men were also charged with threatening public officials In addition, several Freemen faced charges
of criminal syndicalism, which is the advocacy of violence for political goals
FURTHER READINGS Amar, Akhil Reed 2002 “Second Thoughts.” Law and Contemporary Problems 65 (spring).
Barry, Monica Sue 1996 “Stockpiling Weapons: Can Private Militias Receive Protection under the First and Second Amendments? ” Thomas Jefferson Law Review 18 (spring).
Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor 2002 “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms ” St John's Journal of Legal Commentary 16 (winter).
CROSS REFERENCE Dennis v United States.
54 SECOND AMENDMENT
Trang 8abridge the right to bear arms The Court refused
to accept the argument that the right to bear arms
is a personal right of the people According to the
Court, “The right to drill or parade with arms,
without, and independent of, an act of congress
or law of the state authorizing the same, is not an
attribute of national citizenship.”
The Presser opinion is best understood in its
historical context The Northern states and the
federal government had just fought the Civil
War against Southern militias unauthorized by
the federal government After this ordeal, the
Supreme Court was in no mood to accept an
expansive right to bear arms At the same time,
the Court was sensitive to the subject of federal
encroachment onSTATES’RIGHTS
Several decades later, the Supreme Court
ignored the contradictory language in Presser
and cemented a limited reading of the Second
Amendment In United States v Miller, 307 U.S
174, 59 S Ct 816, 83 L Ed 1206 (1939),
defendants Jack Miller and Frank Layton were
charged in federal court with unlawful
trans-portation of firearms in violation of certain
sections of the National Firearms Act of June
26, 1934 (ch 757, 48 Stat 1236–1240 [26
U.S.C.A § 1132 et seq.]) Specifically, Miller and
Layton had transported shotguns with barrels
less than 18 inches long, without the
registra-tion required under the act
The district court dismissed theINDICTMENT,
holding that the act violated the Second
Amendment The United States appealed The
Supreme Court reversed the decision and sent
the case back to the trial court The Supreme
Court stated that the Second Amendment
was fashioned “to assure the continuation and
render possible the effectiveness of militia
forces.”
The Miller opinion confirmed the restrictive
language of Presser and solidified a narrow
reading of the Second Amendment According
to the Court in Miller, the Second Amendment
does not guarantee the right to own a firearm
unless the possession or use of the firearm has
“a reasonable relationship to the preservation or
efficiency of a well regulated militia.”
Since the 1990s, however, lower courts have
reconsidered the scope of this right Courts have
provided extensive analysis of both the history
and the text of the amendment to determine
how this amendment should apply For
exam-ple, the U.S Court of Appeals for the Fifth
Circuit, in United States v Emerson, 270 F.3d
203 (5th Cir 2001) determined that the right to bear arms was an individual right bestowed upon each citizen, rather than a collective right
of the people through their states to maintain militias separate from the federal military The Second Amendment also received more focus from scholars
The Heller Decision
The case of District of Columbia v Heller involved a challenge of the District of Colum-bia’s severe restrictions on the possession of handguns Under the D.C statute, an applicant was required to register a handgun with the D.C city police department, and in most instances, the registration was prohibited The statute also generally prohibited a person from carrying a pistol without a license For those with lawfully registered handguns, another statute required the owner to keep the firearm unloaded and disassembled or otherwise bound
by a trigger lock
Six residents of the District of Columbia challenged the law Four of the plaintiffs wanted
to have guns in their homes to provide SELF
-DEFENSE AnotherPLAINTIFFwanted to keep a gun assembled in his home without a trigger lock A final plaintiff, Dick Heller (the named plaintiff
in the Supreme Court action), wanted to possess a gun both at home and in his position
as a special police officer In 2007 the U.S
Gun Ownership in 2008
Male
Female
Republican
Democrat
Independent
49%
36%
54%
34%
22
42%
Percentage who own a gun
SOURCE: U.S Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics.
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SECOND AMENDMENT 55
Trang 9Court of Appeals for the District of Columbia sparked a major debate when it ruled that the D.C restrictions on handguns violated the Second Amendment In a lengthy opinion by Judge Laurence H Silberman, the court ruled that the Second Amendment provided an individual right and that the D.C statute violated this individual right Silberman based his reasoning primarily on the text of the amendment itself Parker v Dist of Columbia,
478 F.3d 370 (D.C Cir 2007)
In a 5-4 decision, the Court affirmed the ruling of the D.C Circuit Justice Antonin Scalia’s majority opinion focused heavily on the text of the amendment itself Scalia focused on two parts of the amendment, which he referred
to as the“prefatory clause” and the “operative clause.” According to Scalia, the prefatory clause does not limit the operative clause grammati-cally, but rather the prefatory clause announces
a purpose According to Scalia, the amendment could be rephrased as
Because a well regulated Militia is necessary
to the security of a free State, the right of the people to keep and bear Arms shall not be infringed
Scalia noted that the Second Amendment is one of three places in the Bill of Rights where the phrase “the right of the people” is used The two other instances include the Assembly-and-Petition Clause of the FIRST AMENDMENT and the Search-and-Seizure Clause of theFOURTH AMEND-MENT In each instance, Scalia noted, the phrase refers to an individual right, rather than a collective right Moreover, Scalia noted that prior versions of the Second Amendment clearly referred to the right to bear arms as an individual right Thus, the Court’s first major conclusion was that the Second Amendment indeed provides individual, rather than collective, rights
Based on this conclusion, the Court deter-mined that the D.C handgun ban and the trigger-lock requirement both violated the Second Amendment The total handgun ban effectively prohibits an entire class of “arms”
that citizens use for lawful self-defense, accord-ing to the Court Moreover, the majority determined that the trigger-lock requirement makes it impossible for citizens to use guns for self-defense, thus rendering this restriction to be unconstitutional as well
Many gun rights proponents, including the
NATIONAL RIFLE ASSOCIATION, cheered the decision
as a victory Many commentators predicted that the decision would lead to many challenges, and
in the first year after the decision in Heller, these predictions came true As of January 2009, more than 60 lower courts had reviewed constitu-tional challenges of a variety of gun laws However, none of these challenges was success-ful, suggesting that the Heller was not as wide-reaching as some gun rights advocates had hoped
FURTHER READINGS Becker, Edward R 1997 “The Second Amendment and Other Federal Constitutional Rights of the Private Militia.” Montana Law Review 58 (winter).
Bogus, Carl T., ed 2000 The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms New York: New Press.
Charles, Patrick J 2009 The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court Jefferson, N.C.: McFarland & Co.
Doherty, Brian 2008 Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment Washington, D.C.: Cato Institute.
Dolan, Edward F., and Margaret M Scariano 1994 Guns in the United States New York: Watts.
Dunlap, Charles J., Jr 1995 “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment ” Tennessee Law Review 62 (spring) Halbrook, Stephen P 2008 The Founders’ Second Amend-ment Stanford, Cal.: Stanford University Press Hanson, Freya Ottem 1998 The Second Amendment: The Right to Own Guns Springfield, N.J.: Enslow Hook, Donald D 1992 Gun Control: The Continuing Debate Washington, D.C.: Second Amendment Foun-dation.
Hoppin, Jason 2003 “Ninth Circuit Upholds Controversial Ruling on Second Amendment ” Legal Intelligencer (May 8).
——— 2003 “Second Amendment Fight Steals Show in Gun Ban Case: Panel Enters Fray over Individual Rights ” San Francisco Recorder (February 19) McAffee, Thomas B 1997 “Constitutional Limits on Regulating Private Militia Groups ” Montana Law Review 58 (winter).
Reed Amar, Akhil 1992 “The Bill of Rights and the Fourteenth Amendment ” Yale Law Journal 101 (April) CROSS REFERENCES
Gun Control; National Rifle Association.
SECOND LOOK DOCTRINE
In the law of future interests, a rule that provides that even though the validity of interests created
by the exercise of a power of appointment is ordinarily measured from the date the power is created, not from its exercise, the facts existing on the date of its exercise can be considered in order
to determine if theRULE AGAINST PERPETUITIES has been violated
56 SECOND LOOK DOCTRINE
Trang 10AtCOMMON LAW, the rule against perpetuities
prescribed that no interest in property is valid
unless it vests, if at all, not later than 21 years
plus the period of gestation after some life or
lives in being at the time of the creation of the
interest A property interest vests when it is
given to a person in being and is not subject to a
condition precedent (the occurrence of a
designated event) This rule restricts a person’s
power to control the ownership and possession
of her property after her death and ensures the
transferability of property
The second look doctrine has been applied
to mitigate the harsh effect of the rule against
perpetuities on a power of appointment—
authority granted by one person by deed or
will to another, the donee, to select a person or
persons who are to receive property
For example, B was the life income
benefi-ciary (one who profits from the act of another) of
a trust and the donee of a special power over the
succeeding remainder—the property that passes
to another after the expiration of an intervening
income interest His father, F, who predeceased
him, established the trust in his will B exercised
his power through his own will, directing that the
income be paid after his death to his children for
the life of the survivor and that, upon the death of
his last surviving child, the corpus—the main
body or principal of a trust—be paid to his
grandchildren At F’s death, B had two children,
X and Y No other children were born to B, and at
his death, X and Y are still alive
B’s appointment is valid The perpetuity
period is measured from F’s death If only the
facts existing at F’s death could be considered,
however, B’s appointment would partly fail
because of the possibility that he might have
another child after F’s death who would have
children more than 21 years after the deaths of B,
X, and Y In considering the validity of B’s
appointment, however, not just the facts existing
when the perpetuity period commences to run on
B’s appointment are considered The facts existing
at B’s death can be taken into account under the
second look doctrine, which thereby saves B’s
appointment At B’s death, it is known that no
additional children were born to him after F’s
death Thus B’s last surviving child will be either X
or Y, both of whom were“in being” at F’s death
and, therefore, constitute the measuring lives
The second look doctrine is a departure
from the fundamental principle that only the
facts in existence when the perpetuity period commences to run can be taken into account in determining validity Until the appointment is made, the appointed interests cannot be liti-gated No useful purpose, therefore, is served by invalidating appointed interests because of what might happen after the power is created, but which at the time of exercise can no longer happen
In some jurisdictions, this doctrine has been extended to gifts-in-default, which involve the expiration of the power, such as when the donee releases the power or dies without having exercised it
For example, B was the life income beneficiary of a trust and the donee of a power over the succeeding remainder interest In default of appointment (that is, B fails to name anyone to receive the property after he dies), the income after B’s death was to be paid to his children for the life of the survivor, and on the death of B’s last surviving child, the corpus was
to be paid to B’s grandchildren B’s father, F, who predeceased him, created the trust in his will At F’s death, B had two children, X and Y
B died without having additional children and without exercising his power B was survived by
X and Y
F’s death marks the commencement of the running of the perpetuity period as to the gift-in-default Nevertheless if a second look at the facts existing at B’s death is permissible, the gift-in-default is valid The measuring lives are X and Y If no second look is permissible, the remainder interest in favor of B’s grandchildren
is invalid As of F’s death, there was a possibility that B might have a child after F’s death, that such a child might have survived B, and that such child might have had a child, B’s grandchild, more than 21 years after the death
of the survivor of B, X, and Y
A default clause creates property interests no different from other property interests except that they are subject to divestment upon the exercise of the power If B had not been granted
a power of appointment in the above example, the interests created by the default clause would clearly be judged on the basis of the facts existing when F died No second look as of B’s death would be permissible, unless the jurisdic-tion had adopted the WAIT AND SEE DOCTRINE Until the power of appointment expires, it cannot be known whether the gift-in-default of
SECOND LOOK DOCTRINE 57