Human beings have been governed by both written and unwritten laws for as long as they have existed. Many states of the world, in the course of civilization, have had their laws written and re-written to suit the demands and challenges of different times. A constitution can be defined as a clear set of rules and regulations for any given legitimate government (Vile 2). It is usually published as a written book or document after the codification process has been done.
The use of a constitution is to enumerate and draw clear/non-contradictory limits of the existing powers and privileges of a given political entity. The US constitution was written in 1787, ratified the following year and has been operational since 1789 with 27 amendments by 1992 (Vile 7). The research paper seeks to explore the Right to bear arms and the Right of search and seizure as stipulated in the US constitution.
The 27th amendment to the US Constitution was ratified in July 1992 while the first ten were ratified on December 15, 1791(Vile 10). The first ten amendments to the American Constitution are commonly referred to as the Bills of Rights.
Bills of rights were entrenched into the constitution in order to ensure that certain specific rights were legally acknowledged by the US government. Article V of the original text of the US Constitution provides for its amendment. The Right to Bear Arms is contained in the 2nd Amendment to the Constitution (Vile 103).
The bill enumerates a well regulated militia as being crucial for a free state, and the right of citizens to keep and bear Arms. This amendment has stirred heated debate since it was ratified. This is because it raises concerns of whether it enumerates the protection of individual’s rights to own arms or it refers strictly to the people’s right to own arms collectively through a well maintained military service (Vile 104).
In constitutional context, “arms” refers to the different types of weapons while the term to “bear arms” implies the right to wage war on an enemy. This provision seems to contradict other federal restrictions on the rights to own firearms as provided in the constitution (http://www.senate.gov/civics/constitution_item/constitution.htm).
It was on June 26, 2008 that the Supreme Court of the United States decided on a tight margin of 5-4 that citizens of the District of Columbia have an individual right to keep and bear handguns in order to ensure their safety while at home (Vile 106). This ruling was in the case involving District of Columbia and Heller. The court, on the other hand, upheld the fact that the federal restriction on the possession and bearing of firearms is constitutional. Despite the provision of the federal constitution through the Second Amendment, the fifty states have their own constitutions which stipulate their interpretation of the right to keep and bear arms.
In the modern context, three models of interpreting this provision exist. The first one is known as the collective model, and proposes that the right to keep and bear firearms is solely for collective purposes as opposed to individual.
The second is called the modified collective model which argues that the bill refers to individuals who are service in the regulated militia. The third model, the one applied by the Supreme Court in the case mentioned above, is the individual-rights model (Vile 108).
It holds that individuals should be allowed to possess and bear arms, just as much as the right to free speech is provided for in the First Amendment. This claim, however, is criticized by Nadine Strossen who warns that the provisions are not absolute and should be subjected to reasonable restrictions (Vile 109).
From the above discussion, we can conclude that the Right to Keep and Bear Arms is still at the center of debate, both at the political as well as at the court level. Generally we note that the constitution has and will continue to play a central role in the decisions of the Supreme Court of the United States of America and the independent States.
This right is provided for in the 4th Amendment to the US Constitution. The Amendment stipulates the people’s right to be secure in their persons, homes, papers, and effects, against unwarranted searches and seizures (Vile 137).
The upholding of individuals’ privacy is central to this amendment. The Amendment specifies that no searches or seizures should be made, but upon credible cause, backed by pledge or declaration, and describing the specific place to be investigated, and the individuals or things to be held in custody.
This amendment applies directly to criminal justice. It holds that arrests and searches of individuals, homes, and other private premises should be made by a warrant (Vile 139). This seeks to put a neutral magistrate between the police and the citizen, thus protecting any suspect from unwarranted search and seizure.
Moreover, the Fourth Amendment has regulated the kind of evidence that is brought in any given case in the US courts. It has resulted in the prohibition of illegally obtained evidence.
This implies that the prosecutor ought not to violate the local search and seizure laws. In the United States, the provision has evolved to include the rejection of evidence obtained as a result of an unwarranted search, even if not found in the course of the illegal search (Vile 140).
This new doctrine is referred to as the fruit of the poisonous tree which has been extended to other bills of rights stipulated in the US Constitution (http://www.senate.gov/civics/constitution_item/constitution.htm).
The modern usage of search and seizure, especially in US courts, has been informed by three crucial questions. Firstly, it is probed whether the police conducted any search or whether they did seize any individual or property.
Secondly, the action by the police must be legally justifiable; there must have been a probable cause or a reasonable suspicion. Lastly, the process used by the police is important- they should either obtain permission from the magistrate before searching and seizing or they can search and explain their actions later in a suppression court hearing (Vile 146).
The challenge facing many courts nowadays is the ability to clearly distinguish between what constitute legal “searches” and “seizures.” However, probable cause and reasonable suspicion remain the acceptable standards today that regulate any “search” or “seizure” by the police.
The implementation of the provisions of the Fourth Amendment has faced major loopholes especially when it comes to polices’ actions. The issue of obtaining warrants from magistrates has been regarded as a sham since the magistrate just confirms or “rubber-stamps” the intentions of the police.
Virtually all search warrant applications by the police have always been granted. The risk of racial discrimination during “searches” and “seizures” has been on the rise, especially in cases involving drug trafficking and the ultimate infringement of privacy (Vile 153). Hence, a lot need to be done to uphold the actual intensions of the Fourth Amendment to the US Constitution.
The two modifications made to the US Constitution discussed in the research have played a key role in shaping the criminal justice system in America. They have protected the citizens from the excesses of the federal government and its agencies.
However, the research has also pointed out the loopholes that are still inherent in the provisions, especially in the interpretation of the Fourth Amendment. More effort should be made to clarify the express provisions of the bills of rights if the US citizens are to fully benefit from the Amendments made over two centuries ago.
Killian, Johny H. Constitution of the United Sates. United States Senate.103-21.
Retrieved on March 26, 2010, from
Vile, John R. A Companion of the United States Constitution and Its Amendments (5th ed.). ABC-CLIO, 2010, pp. 1-13, 103-12, 137-60