The Bill of Rights and Civil Liberties

How are your rights defined and protected under the Constitution?

5.4 Protections Against Abuses of Government Power

More than any other amendments in the Bill of Rights, the Second, Third, and Fourth were a response to the suppression of rights under British colonial rule. In the years leading up to the American Revolution, Britain often used its military authority to infringe on the were designed to ensure that such abuses would not take place under the new American government.

The Second Amendment and the Right to Bear Arms

The Second Amendment says, “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.” In colonial times, people relied on local militias to provide security for their communities. The militias went on to play a key role in the revolution. After the war, British philosopher Richard Price praised these militias as model security forces for a democratic nation:

Free states ought to be bodies of armed citizens, well regulated and well disciplined, and always ready to turn out, when properly called upon, to execute the laws, to quell riots, and to keep the peace. Such, if I am rightly informed, are the citizens of America.

Although the Constitution allowed Congress to create a national army and navy, the framers were wary of standing armies. They feared that the central government might use a powerful army to suppress citizens’ rights. Militias, in their view, provided a better guarantee of freedom and security. They also knew that militia members usually supplied their own weapons. So they worded the Second Amendment to ensure that the government would not be able to take away people’s weapons, thereby weakening the militias.

Interpretations of the Second Amendment have varied over the years. This amendment has not been incorporated, which means that most regulation of firearms is in the hands of state and local governments.

The federal government made no attempt to regulate weapons until the early 20th century. In 1934, however, an increase in violent, gang-related shootings and an attempt on President Franklin Roosevelt’s life led to the passage of the first federal gun control law. This law placed a tax on certain powerful firearms and required background checks on buyers in order to limit the sale of such guns. In some cases, gun owners also had to register their weapons.

The Supreme Court upheld limitations on firearms in United States v. Miller (1939). In that case, the Court supported the conviction of two men who had failed to register a sawed-off shotgun, a particularly deadly weapon. Because militias never used sawed-off shotguns for common defense, the Court determined that government had the right to regulate such weapons.

Justice James Clark McReynolds declared, “We cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Almost 70 years later, however, in District of Columbia v. Heller (2008), the Court struck down a law that banned the possession and registration of handguns in Washington, D.C. Justice Antonin Scalia maintained that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation.” However, those who support and those who oppose gun control continue to dispute over the meaning of the Second Amendment and an individual’s right to bear arms.

The Third and Fourth Amendments: Protecting Your Home and Person

The Third and Fourth amendments are designed to protect the privacy and property rights of citizens from abuses by law enforcement authorities or the military.

The Third Amendment prohibits citizens from being forced to take soldiers into their homes. Under British rule, colonists had sometimes been required to quarter, or feed and house, British soldiers. Many colonists saw this quartering law as another tool British authorities used to intimidate them.

Although the Third Amendment has had little direct application since colonial times, it offers a general guarantee for the privacy and sanctity of people’s homes. As Justice Joseph Story once wrote, the purpose of the Third Amendment is “to secure the perfect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion."

The idea that people have a right to a certain amount of privacy also influenced the Fourth Amendment. This amendment forbids “unreasonable searches and seizures” of individuals or their property without a properly executed warrant, or written approval from a judge. This means that law enforcement officials may not search a person’s home or property without prior consent or a legal order. A warrant must be based on probable cause, or reasonable suspicion of criminal behavior. It must also be very specific in describing the place to be searched and the persons or things to be seized.

In some cases, however, the police do not need a warrant for a legal search. For example, they may search a person or property if they see criminal evidence in plain view or have probable cause to believe that a suspect is trying to destroy such evidence. Also, the Court has held that searches of students and their possessions by school officials do not require warrants.

The Supreme Court has heard numerous cases involving search and seizure. One case, Katz v. United States (1967), hinged on recordings of a suspect’s conversation made from a public phone booth. Because the recording device was placed outside the booth and recorded only the suspect’s voice, the police believed they did not need a warrant. But the Court disagreed. It concluded that a warrant was required, because the suspect had a “reasonable expectation of privacy” in a phone booth.

A year later, however, another Court decision gave law enforcement officials greater latitude to search individuals. The case, Terry v. Ohio (1968), involved three men whose behavior caused a police officer to suspect that they were about to rob a store. After questioning the men, the officer frisked them by patting down the outside of their clothing. Two of the suspects had guns, and they were later convicted for carrying concealed weapons. The men appealed their conviction, however, claiming that the officer did not have probable cause to frisk them. They argued that he had no evidence, other than his “hunch” that they were about to commit a crime.

The Court decided that the officer’s observations provided adequate cause for the search. It said that his actions and suspicions were reasonable given the behavior of the suspects. This “stop and frisk” rule has given the police more power to try to prevent serious crimes before they happen.

Next Section: 5.5 (Your Rights in the Legal System)