Personal Freedom And The Constitution

The US Constitution, with its amendments and provisions, has a profound impact on the lives of Americans, but does it regulate person-to-person interactions? The original text of the Constitution contained few provisions protecting individual rights, and the Bill of Rights, which comprises the first ten amendments, was initially only applicable against the federal government and not state or local governments. However, this changed after the Civil War with the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, which extended liberties and rights to formerly enslaved people. While the Bill of Rights has since been expanded to include state and local governments, it generally does not apply to private conduct or interactions between individuals. There are exceptions, such as when a private entity exercises powers usually held by the state, or when private parties conspire with public officials to violate constitutional rights. The Constitution, through its amendments, continues to shape the legal landscape of the United States, influencing the rights and interactions of its citizens.

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The Constitution and private conduct

The Constitution, as originally conceived, contained few provisions protecting individual rights. This was likely due to the belief that the framers had created a government with limited powers that would not violate individual rights, and the fear that any list of rights might be incomplete and later interpreted to deny unlisted rights. However, the Constitution does apply to private conduct in certain situations, such as when a private entity exercises powers usually held by the state, like running a prison or holding an election. It also applies when private parties conspire with public officials to violate constitutional rights or form a joint enterprise with the government.

The Bill of Rights, which comprises the first ten amendments to the Constitution, was originally construed to apply only against the federal government and not against state or local governments. This changed after the American Civil War, with the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, which were intended to protect the rights of newly freed slaves. The Fourteenth Amendment, in particular, extended the liberties and rights granted by the Bill of Rights to formerly enslaved people and prohibited states from depriving any person of life, liberty, or property without due process of law.

The Ninth Amendment states that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people. This amendment highlights the importance of individual liberties and the division of power between the state and national governments. The Tenth Amendment further emphasizes this division by reserving powers not delegated to the United States by the Constitution to the states or the people.

While the coverage of the Bill of Rights has expanded to include state and local governments, it generally does not apply to private conduct. Private persons and organizations are not typically required to comply with the Constitution, although there are exceptions. For example, a public university must respect its students' free speech rights, but a private university is not subject to this rule. The "`state action'" doctrine, clarified by the Supreme Court in 1883, refers to any governmental conduct, including that of local governments, which are considered arms of the states.

In summary, while the Constitution does have some bearing on private conduct in specific circumstances, it primarily regulates the actions of governmental bodies and individuals acting in an official capacity. The Bill of Rights, as expanded and interpreted over time, protects individual liberties and ensures that government power is limited at both the federal and state levels.

The Constitution and free speech

The First Amendment to the United States Constitution, adopted on December 15, 1791, as part of the Bill of Rights, protects the freedom of speech. The First Amendment 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.

The Supreme Court of the United States has characterised the rights to free speech and a free press as fundamental personal rights and liberties, noting that these rights form the foundation of free government. The Supreme Court has further clarified that the First Amendment protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts.

While the First Amendment protects free speech, it does not protect all speech. For example, the First Amendment does not protect speech that constitutes a criminal threat, or speech that incites imminent illegal activity. The First Amendment also does not protect conduct just because it is motivated by an individual's hateful beliefs or opinions. However, the term "hate speech" is not defined by law, and such speech is still protected by the First Amendment.

The First Amendment was initially interpreted narrowly, only applying to laws enacted by Congress. However, following the American Civil War, the Fourteenth Amendment was passed, which made the First Amendment applicable to state and local governments. The Fourteenth Amendment states:

> No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

While the Constitution generally does not apply to private conduct, there are some situations in which it does. For example, when a private entity exercises powers usually held by the state, such as holding a primary election or running a prison, the Constitution applies.

The Constitution and gun regulation

The Constitution was created to protect individual rights, but the original text contained very few provisions for this. The Bill of Rights was originally construed to apply only against the federal government and not against state or local governments. The rights of individuals were protected from state intrusion by the state constitutions themselves.

The Second Amendment has been a highly debated topic when it comes to gun regulation. The amendment states: "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." Some believe that the phrase "the right of the people to keep and bear Arms" creates an individual constitutional right to possess firearms. This is known as the "individual right theory". Under this theory, the United States Constitution restricts legislative bodies from prohibiting firearm possession, or it renders prohibitory and restrictive regulation presumptively unconstitutional.

However, others argue that the prefatory language "a well-regulated Militia" indicates that the Framers intended only to restrict Congress from legislating away a state's right to self-defence. This is called "the collective rights theory". This theory asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies have the authority to regulate firearms without violating a constitutional right.

The U.S. Supreme Court has interpreted the Second Amendment on five separate occasions, and nearly 40 lower court decisions have addressed the amendment. All have held that the Second Amendment guarantees a state's right to maintain a militia, not an individual's right to own a gun. Former Chief Justice of the U.S. Supreme Court, Warren Burger, agrees that the sale, purchase, and use of guns should be regulated and that this would not violate the Second Amendment.

While the National Rifle Association (NRA) argues that the Second Amendment guarantees the right of an individual to purchase a handgun, others disagree. Handgun Control, Inc., for example, supports a national 7-day waiting period after the initial application for the purchase of a handgun to allow for a criminal records check of the purchaser. They also support legislation to ban paramilitary assault weapons and the sale of "Saturday Night Specials", cheap and easily concealed handguns.

In summary, while there is debate over the interpretation of the Second Amendment, it is generally accepted that reasonable laws to protect the public and prevent easy access to firearms by those who would misuse them are constitutional. The Supreme Court has ruled that a Second Amendment analysis is limited to evaluating the historical nature of the right and whether a given use of a firearm is deeply rooted in the history of the United States.

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The Constitution and unreasonable searches

The Fourth Amendment to the United States Constitution prohibits the federal government from conducting "unreasonable searches and seizures". This means that, in general, the police cannot search a person or their property without a warrant or probable cause. The Fourth Amendment also applies to arrests and the collection of evidence.

The Fourth Amendment is often viewed as two clauses. The first clause prohibits unreasonable searches and seizures, while the second sets requirements for issuing warrants. Warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

The right to be secure against unreasonable searches and seizures was first enshrined in the Massachusetts Declaration of Rights, written by John Adams in 1780, and later added to the US Constitution in 1791. The Fourth Amendment was held to apply to state and local governments in 1961 via the Due Process Clause of the Fourteenth Amendment.

The Fourth Amendment's protection against unreasonable searches and seizures is derived from the famous maxim, "Every man's house is his castle". This idea was emphasised by English legal scholars and practitioners like Sir Edward Coke in early cases and legal theories. Despite this, English royalty often abused their powers to issue general warrants and writs of assistance, which allowed agents of the Crown to search people and places without cause.

The Supreme Court has ruled that the Fourth Amendment's protections include "conversation" and are not limited to "persons, houses, papers, and effects". The Court has also observed that the focus of the Fourth Amendment is the privacy and security of individuals, rather than the particular manner of arbitrary invasion by government officials.

The Constitution and citizenship

The Constitution and the Bill of Rights outline the rights of citizens and their protection, but notably, the original text contained very few provisions protecting individual rights. This was likely due to the framers' belief that the central government they had created had limited powers that would not infringe on individual rights. The framers also feared that any list of rights might be incomplete and could later be interpreted to deny rights not listed.

The Bill of Rights was originally construed to apply only against the federal government and not against state or local governments. The rights of individuals were protected from state intrusion by the state constitutions themselves. This changed after the American Civil War, with the passage of three amendments: the Thirteenth Amendment, which abolished slavery; the Fourteenth Amendment, which clarified citizenship and protected citizens' rights; and the Fifteenth Amendment, which protected citizens' right to vote regardless of race.

The Citizenship Clause of the Fourteenth Amendment, adopted in 1868, establishes the basic rule regarding the acquisition of citizenship of the United States. It states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This clause reversed the infamous Dred Scott v. Sandford decision, which had declared that African Americans were not and could not become citizens.

The Fourteenth Amendment has always excluded from birthright citizenship those born in the United States but not "subject to the jurisdiction thereof." This typically refers to those whose parents are not citizens or permanent residents. The Civil Rights Act of 1866, passed after the Civil War, granted citizenship to all persons born in the United States "not subject to any foreign power," further entrenching the principle of citizenship by birth.

While the Constitution and the Bill of Rights outline the rights of citizens, they do not generally apply to private conduct. Private persons and organizations are not subject to the same rules as public entities, such as universities or prisons. However, there are exceptions, such as when a private entity exercises powers usually held by the state or conspires with public officials to violate constitutional rights.

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