Click on a question or scroll below for one or more answers.
ANSWERS
Question #1
How can the government set up mandatory waiting periods if the Second
Amendment of the Bill of Rights guarantees the right to bear arms?
(Submitted by a high school student at Martin Luther King Jr. High School in
New York City.)
Response by LEGAL Eagle #2, an attorney from New
York City
The Second Amendment provides that "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 right to bear arms under the
Second Amendment is not without its limits.
According to a noted constitutional law scholar, Lawrence Tribe of Harvard Law School, "gun control generally comports with the narrowly limited aim of the [second] amendment as ancillary to other constitutional guarantees of state sovereignty. Tribe, American Constitutional Law, 2d edition, page 299.
A 5-day waiting period is considered by the government to be a reasonable restriction on the right to bear arms. It is based on the public policy of protecting the safety of the citizens. If someone were allowed to go buy a gun and take it home immediately, he might to do something he would later regret, like kill his whole family. Of course, very few of would do that. However, the law is designed to create a "cooling off" period so that does not happen. Thus, the 5-day waiting period, and other similar restrictions like a background check (the Brady Bill), are limits that are constitutionally acceptable because they fit within a state's sovereign power to protect its citizens.
What if Congress or New York State enacted a law that said that "No women may own guns" or that "using guns on Sunday is illegal"? Would these types of laws be considered constitutional? Probably not. However, a law that restricts what type of guns (e.g., machine guns) you can own would be constitutionally permissible for safety reasons. The two other types of laws I mentioned have no safety purpose and are arbitrary. Moreover, they discriminate against people based on their sex and/or religion.
Response by LEGAL Eagle #3, an attorney from New York City
The Second Amendment to the US Constitution reads: "A well regulated
Militia, being necessary for the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed."
Short Answer: The Second Amendment has little, if any, legal significance in today's law. Both the federal and state governments have the ability to restrict the sale and possession of guns.
Analysis: The Second Amendment was the Framers of the Constitution solution to prevent the federal government from taking the state's power to control its own militia. This Amendment merely prevents the federal government from disarming the members of the National Guard. (The term National Guard is somewhat of a misnomer. Each state has its own National Guard. There are thus 50 National Guards in the United States). Consequently, the Second Amendment acts only as a restriction on the federal government and prevents the US Congress from passing legislation that would infringe on a state's right to arm and train its own militia/national guard. Contrary to the popular belief, this amendment does not give each individual person the right to own his or her own gun. In fact, Congress can restrict the individuals rights to buy, own and use guns.
For example, in the case of US v. Warin, a man was convicted of possessing an unregistered machine gun. He argued to the court that he was subject to enrollment in the his state Militia and that therefore he had a fundamental right under the Second Amendment to possess the gun. The court rejected his argument and instead held that the Second Amendment guarantees a collective, rather than an individual right to bear arms, and thus does not give any individual a personal right to own a gun. Similarly, in Quilici v. Morton Grove, the court held that the government can regulate the sale of firearms. (In fact, in this case, a local town completely prohibited the possession of guns, see below).
It is important to note that the term "government" in your question can refer to different bodies, either the federal government or the state (and local) governments.
The rights and liberties in the Bill of Rights (the first ten amendments to the US Constitution) were originally designed to apply only to the federal government. After the Civil War, the 14th Amendment to the US Constitution was ratified which provided that no "State shall deprive any person of life, liberty, or property, without due process of law." Over time, the US Supreme Court has interpreted the word liberty in this clause to incorporate the freedoms of the Bill of Rights that were originally only meant for the Federal government to apply to restrict the state governments as well. Consequently, the rights to, for example, free speech or the right to an attorney at a criminal trial are now applied, through the 14th Amendment, to the states and restrict their behavior accordingly. However, courts has never applied the Second Amendment to the states. Indeed, in US v. Miller, the only US Supreme Court case to address the scope of the Second Amendment, the Court stated: "the right to keep and bear handguns is not guaranteed by the Second Amendment." Since the Second Amendment does not restrict the behavior of the state governments in any capacity, they are free to regulate the use and sale of firearms as they see fit. They can even ban the possession of guns outright if they so choose (e.g. Quilici v. Morton Grove above)
One aspect that probably leads to some confusion is that the Second Amendment is not written terribly well. This does not matter for the state governments because they are not bound by it, but it can affect the behavior of the US Congress. The main part of the Amendment is that "the right of the people to keep and bear Arms shall not be infringed." An important qualifying clause is the "well regulated Militia" part. This clause means two things. First, the Militia must be well regulated. The federal government therefore can control certain types of guns and firearms of the state Militias in order to regulate them. Thus, it is argued, Congress can restrict the right of the state Militias to own certain types of guns if otherwise it would not be "well regulated". Second, it is argued, that guns and firearms must be those weapons that are considered to be a part of the arsenal of a Militia. Modern missiles would not seem to fall within the definition of a Militia, certainly not a well regulated one, and therefore the Federal government, would be able to regulate the use of such weapons as well.
Your Question: The Second Amendment does not apply to the states. The states and local governments are therefore free to enact any type of gun control they choose. Thus, a city or state can enact mandatory waiting periods (or other requirements) for the purchase of guns. Furthermore, since the Second Amendment only binds the federal government's power towards state Militias and does not create an individual right to possess a gun, the US Congress can create nation-wide waiting periods (or other requirements) for guns.
Question #2
We are learning about opening and closing statements, how to pose
appropriate questions, what are the different types of objections, how to
respond to them, and hearsay. This is all very difficult and confusing, can
you help us with understanding these courtroom procedures?
(Submitted by several students.)
Response by LEGAL Eagle #2, an attorney from New York City
1. Opening and Closing Statements
The tone and direction of a lawyer's opening statement will depend on whether the lawyer represents the plaintiff (the party having the burden of proof) or the defendant. The burden of proof is an extremely important point to understand from a procedural perspective. If the plaintiff (the party bringing the law suit) does not have enough facts admitted into the court record, he or she cannot carry the burden of proof and will lose the case. If there is a rule of evidence (such as the hearsay rule) that prohibits a party from introducing the evidence at trial, then it never gets into the record and the jury never hears about it.
If you're the lawyer representing the plaintiff, your opening statement will be to tell the jury what facts you're going to prove at trial and why those facts support the claim that your client has against the defendant. If you're the defendant's lawyer, you will do just the opposite. You will say why those facts either can't be proved or don't amount to a hill of beans. You may also tell the jury that you will introduce other facts that contradict the plaintiff's story. Closing statements come at the end of the trial and explain to the jury in plain English what they just heard and saw in the courtroom. Remember Johnny Cochran saying "If it don't fit, you must acquit." The jury remembered that O.J. Simpson's hand did not fit in the bloody glove and found that the evidence did not prove his guilt beyond a reasonable doubt. I would point out that a lawyer's opening and closing statements are not evidence but oral argument by the lawyer.
2. Hearsay When a defense attorney, for example, hears that the plaintiff's attorney is asking a witness a question that calls for hearsay, he or she should object. The plaintiff's lawyer will then try to explain to the judge, at a sidebar conference perhaps, why the question is covered by an exception to the hearsay rule. The judge then rules on the objection. If the judge's ruling is believed to be wrong, the losing party can appeal the case on the ground that the judge made an error. Sometimes a case be taken all the way to the U.S. Supreme Court.
Hearsay is a statement by a witness as to what another person said out of court when the other person's statement is offered to prove the truth of the matter asserted. That is if someone says that Johnny broke the window and that he knows that to be true because Susie told him so, then the statement would be hearsay. That type of evidence is not admissible in court under the rules of evidence. However, if you are trying to prove something about Susie, for example that Susie "thought" Johnny broke the window, you can introduce the statement at trial because it falls under the "state of mind" exception to the hearsay rule. That is, you're offering Susie's statement to prove her state of mind, not that Johnny in fact broke the window. The reason this is fair is that the witness can be cross-examined by the opposing lawyers.
Response by LEGAL Eagle #4, an attorney from Syracuse, New York
Another good question -- yes, it is really confusing. Perhaps the best
way to think about court-room procedures and evidence issues is to look at
which party has the burden of proof in a case, and then to look at the way
the case will be proven by counsel. In a criminal case, the prosecutor has
the burden of proof, to demonstrate the guilt of the defendant beyond a
reasonable doubt. In a civil case (for money damages, for example), the
plaintiff has the burden of proof of the elements of his or her "cause of
action" (type of lawsuit). In the civil (tort) case, that usually means that
the plaintiff must show that a duty of care was owed to the plaintiff by the
defendant (you're supposed to stop at the Stop sign), that the defendant
breached that duty (failed to stop), and that damages resulted from that
failure.
The process of showing these issues to the jury makes some sense: the party with the burden of proof goes first (in the Opening, as well as being the first party to offer witnesses); in summation, the order is reversed -- the plaintiff goes last. After the openings, the proof begins. When a witness is testifying, and a party asks an improper question, the other party may "object" to the question, based upon the rules of evidence. Generally, these rules make sense if you consider that they exist to try to ensure that the evidence received is truthful.
"Hearsay" statements are often the most confusing, due to the many exceptions to the rule, which permits their receipt into evidence even though they are technically hearsay. For example, one cannot cross-examine a hearsay statement, since the person who said it is not in court (the person who heard it is testifying); for this reason it would not be fair for the person to testify about what s/he heard. But, if the circumstances were such that the statement was likely to be truthful (like a "dying declaration," or a statement against one's interests), then the hearsay statement is permitted to be received into evidence. In other words, there has to be something else -- something which would "cure" the hearsay defect, by the circumstances of the statement making it likely to be truthful.
Posing appropriate questions is often awkward. "Direct-examination" questions cannot "lead" a witness (by implying the obvious answer, as in, "You saw the light turn red, right?"). Rather, one would ask: "Did you observe the signal? / What color was it at that time? / Where were you when you made that observation? / What was its color at that time? / Did there come a time when the signal changed color? / To what color? / Where were the vehicles at that time? (and so on)" It is surely more cumbersome, but the questions do not imply answers. On cross-examination, however, the questioner may use leading questions, in an effort to cut to the real issues of credibility. Such as: "You are telling us that you could see the blue car, despite the corner house being in the way? / Didn't you just tell the jury that you first saw the blue car when it was over 100 yards from the intersection? (Etc.)" I hope these small examples help understand the distinctions.
Question #3
How can the government set up mandatory waiting periods if the Second
Amendment of the Bill of Rights guarantees the right to bear arms?
(Submitted by a high school student at Martin Luther King Jr. High School in New
York City.)
Response by LEGAL Eagle #2, an attorney from New York City
The Second Amendment provides that "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 right to bear arms under the
Second Amendment is not without its limits.
According to a noted constitutional law scholar, Lawrence Tribe of Harvard Law School, "gun control generally comports with the narrowly limited aim of the [second] amendment as ancillary to other constitutional guarantees of state sovereignty. Tribe, American Constitutional Law, 2d edition, page 299.
A 5-day waiting period is considered by the government to be a reasonable restriction on the right to bear arms. It is based on the public policy of protecting the safety of the citizens. If someone were allowed to go buy a gun and take it home immediately, he might to do something he would later regret, like kill his whole family. Of course, very few of would do that. However, the law is designed to create a "cooling off" period so that does not happen. Thus, the 5-day waiting period, and other similar restrictions like a background check (the Brady Bill), are limits that are constitutionally acceptable because they fit within a state's sovereign power to protect its citizens.
What if Congress or New York State enacted a law that said that "No women may own guns" or that "using guns on Sunday is illegal"? Would these types of laws be considered constitutional? Probably not. However, a law that restricts what type of guns (e.g., machine guns) you can own would be constitutionally permissible for safety reasons. The two other types of laws I mentioned have no safety purpose and are arbitrary. Moreover, they discriminate against people based on their sex and/or religion.
Response by LEGAL Eagle #3, an attorney from New York City
The Second Amendment to the US Constitution reads: "A well
regulated Militia, being necessary for the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed."
Short Answer: The Second Amendment has little, if any, legal significance in today's law. Both the federal and state governments have the ability to restrict the sale and possession of guns.
Analysis: The Second Amendment was the Framers of the Constitution solution to prevent the federal government from taking the state's power to control its own militia. This Amendment merely prevents the federal government from disarming the members of the National Guard. (The term National Guard is somewhat of a misnomer. Each state has its own National Guard. There are thus 50 National Guards in the United States). Consequently, the Second Amendment acts only as a restriction on the federal government and prevents the US Congress from passing legislation that would infringe on a state's right to arm and train its own militia/national guard. Contrary to the popular belief, this amendment does not give each individual person the right to own his or her own gun. In fact, Congress can restrict the individuals rights to buy, own and use guns.
For example, in the case of US v. Warin, a man was convicted of possessing an unregistered machine gun. He argued to the court that he was subject to enrollment in the his state Militia and that therefore he had a fundamental right under the Second Amendment to possess the gun. The court rejected his argument and instead held that the Second Amendment guarantees a collective, rather than an individual right to bear arms, and thus does not give any individual a personal right to own a gun. Similarly, in Quilici v. Morton Grove, the court held that the government can regulate the sale of firearms. (In fact, in this case, a local town completely prohibited the possession of guns, see below).
It is important to note that the term "government" in your question can refer to different bodies, either the federal government or the state (and local) governments.
The rights and liberties in the Bill of Rights (the first ten amendments to the US Constitution) were originally designed to apply only to the federal government. After the Civil War, the 14th Amendment to the US Constitution was ratified which provided that no "State shall deprive any person of life, liberty, or property, without due process of law." Over time, the US Supreme Court has interpreted the word liberty in this clause to incorporate the freedoms of the Bill of Rights that were originally only meant for the Federal government to apply to restrict the state governments as well. Consequently, the rights to, for example, free speech or the right to an attorney at a criminal trial are now applied, through the 14th Amendment, to the states and restrict their behavior accordingly. However, courts has never applied the Second Amendment to the states. Indeed, in US v. Miller, the only US Supreme Court case to address the scope of the Second Amendment, the Court stated: "the right to keep and bear handguns is not guaranteed by the Second Amendment." Since the Second Amendment does not restrict the behavior of the state governments in any capacity, they are free to regulate the use and sale of firearms as they see fit. They can even ban the possession of guns outright if they so choose (e.g. Quilici v. Morton Grove above)
One aspect that probably leads to some confusion is that the Second Amendment is not written terribly well. This does not matter for the state governments because they are not bound by it, but it can affect the behavior of the US Congress. The main part of the Amendment is that "the right of the people to keep and bear Arms shall not be infringed." An important qualifying clause is the "well regulated Militia" part. This clause means two things. First, the Militia must be well regulated. The federal government therefore can control certain types of guns and firearms of the state Militias in order to regulate them. Thus, it is argued, Congress can restrict the right of the state Militias to own certain types of guns if otherwise it would not be "well regulated". Second, it is argued, that guns and firearms must be those weapons that are considered to be a part of the arsenal of a Militia. Modern missiles would not seem to fall within the definition of a Militia, certainly not a well regulated one, and therefore the Federal government, would be able to regulate the use of such weapons as well.
Your Question: The Second Amendment does not apply to the states. The states and local governments are therefore free to enact any type of gun control they choose. Thus, a city or state can enact mandatory waiting periods (or other requirements) for the purchase of guns. Furthermore, since the Second Amendment only binds the federal government's power towards state Militias and does not create an individual right to possess a gun, the US Congress can create nation-wide waiting periods (or other requirements) for guns.
Question #4
Our class recently attended a jury selection. What strategies do
defense attorneys use to determine what kinds of questions to ask to find
out if a person could be impartial or partial to the defendant?
Response by LEGAL Eagle #10, an attorney from New York City
There is no magic formula to what type of questions you ask
during a jury selection if you are one of the attorneys. Sometimes it is a
matter of asking some general questions and seeing and feeling what the
"vibes" are.
Question #5
Does having a broken tail light on your car give the police the right
to search and seize that car?
Response by LEGAL Eagle #10, an attorney from New York City
A broken tail light gives the police the right to stop a car and
to issue a summons. If anything occurs during the stop which causes the
police officer to either reasonably fear for his or her safety or to
reasonably suspect that other criminal activity is afoot (for example:
driver is drunk, car smells of marijuana, ignition is popped, gun or drugs
are in plain view etc.....), then a greater degree of intrusion such as a
search, arrest of the driver and occupants and/or a seizure of the car may
occur. A traffic violation such as a broken tail light alone is not enough,
but other objectively, credible and reasonably perceived occurrences can
give cause for a greater degree of intrusion on the part of the police.
Question #6
We are
learning about opening and closing statements, how to pose appropriate
questions, the different types of objections, how to respond to them, and
hearsay. This is all very difficult and confusing. Can you help us with
understanding these courtroom procedures?
(Submitted by a high school Student at Roosevelt in the Bronx.)
Response by LEGAL Eagle #2, an attorney from New York City
The tone and direction of a lawyer's opening statement will depend on whether the lawyer represents the plaintiff (the party having the burden of proof) or the defendant. The burden of proof is an extremely important point to understand from a procedural perspective. If the plaintiff (the party bringing the law suit) does not have enough facts admitted into the court record, he or she cannot carry the burden of proof and will lose the case. If there is a rule of evidence (such as the hearsay rule) that prohibits a party from introducing the evidence at trial, then it never gets into the record and the jury never hears about it.
If you're the lawyer representing the plaintiff, your opening
statement will be to tell the jury what facts you're going to prove at
trial and why those facts support the claim that your client has against
the defendant. If you're the defendant's lawyer, you will do just the
opposite. You will say why those facts either can't be proved or don't
amount to a hill of beans. You may also tell the jury that you will
introduce other facts that contradict the plaintiff's story. Closing
statements come at the end of the trial and explain to the jury in plain
English what they just heard and saw in the courtroom. Remember Johnny
Cochran saying "If it don't fit, you must acquit." The jury remembered
that OJ Simpson's hand did not fit in the bloody glove and found that
the evidence did not prove his guilt beyond a reasonable doubt. I would
point out that a lawyer's opening and closing statements are not
evidence but oral argument by the lawyer.
When a defense attorney, for example, hears that the plaintiff's attorney is asking a witness a question that calls for hearsay, he or she should object. The plaintiff's lawyer will then try to explain to the judge, at a sidebar conference perhaps, why the question is covered by an exception to the hearsay rule. The judge then rules on the objection. If the judge's ruling is believed to be wrong, the losing party can appeal the case on the ground that the judge made an error. Sometimes a case be taken all the way to the U.S. Supreme Court.
Hearsay is a statement by a witness as to what another person said out of court when the other person's statement is offered to prove the truth of the matter asserted. That is if someone says that Johnny broke the window and that he knows that to be true because Susie told him so, then the statement would be hearsay. That type of evidence is not admissible in court under the rules of evidence. However, if you are trying to prove something about Susie, for example that Susie "thought" Johnny broke the window, you can introduce the statement at trial because it falls under the "state of mind" exception to the hearsay rule. That is, you're offering Susie's statement to prove her state of mind, not that Johnny in fact broke the window. The reason this is fair is that the witness can be cross-examined by the opposing lawyers.Response by LEGAL Eagle #4, an attorney from
Syracuse, NY
Yes, it is really confusing. Perhaps the best way to think about
court-room procedures and evidence issues is to look at which party has the
burden of proof in a case, and then to look at the way the case will be
proven by counsel. In a criminal case, the prosecutor has the burden of
proof, to demonstrate the guilt of the defendant beyond a reasonable doubt.
In a civil case (for money damages, for example), the plaintiff has the
burden of proof of the elements of his or her "cause of action" (type of
lawsuit). In the civil (tort) case, that usually means that the plaintiff
must show that a duty of care was owed to the plaintiff by the defendant
(you're supposed to stop at the Stop sign), that the defendant breached that
duty (failed to stop), and that damages resulted from that failure.
The process of showing these issues to the jury makes some sense: the party with the burden of proof goes first (in the Opening, as well as being the first party to offer witnesses); in summation, the order is reversed -- the plaintiff goes last. After the openings, the proof begins. When a witness is testifying, and a party asks an improper question, the other party may "object" to the question, based upon the rules of evidence. Generally, these rules make sense if you consider that they exist to try to ensure that the evidence received is truthful.
"Hearsay" statements are often the most confusing, due to the many exceptions to the rule, which permits their receipt into evidence even though they are technically hearsay. For example, one cannot cross-examine a hearsay statement, since the person who said it is not in court (the person who heard it is testifying); for this reason it would not be fair for the person to testify about what s/he heard. But, if the circumstances were such that the statement was likely to be truthful (like a "dying declaration," or a statement against one's interests), then the hearsay statement is permitted to be received into evidence. In other words, there has to be something else -- something which would "cure" the hearsay defect, by the circumstances of the statement making it likely to be truthful.
Posing appropriate questions is often awkward. "Direct-examination" questions cannot "lead" a witness (by implying the obvious answer, as in, "You saw the light turn red, right?"). Rather, one would ask: "Did you observe the signal? / What color was it at that time? / Where were you when you made that observation? / What was its color at that time? / Did there come a time when the signal changed color? / To what color? / Where were the vehicles at that time? (and so on)" It is surely more cumbersome, but the questions do not imply answers. On cross-examination, however, the questioner may use leading questions, in an effort to cut to the real issues of credibility. Such as: "You are telling us that you could see the blue car, despite the corner house being in the way? / Didn't you just tell the jury that you first saw the blue car when it was over 100 yards from the intersection? (Etc.)" I hope these small examples help understand the distinctions.
Question #7
Why is the President of the United States limited to 2 terms?
Why can't the President stay in office as long as he or she wins the
elections, and is doing the job well?
(Submitted by a high school student at Martin Luther King Jr. High School in New
York City.)
Response by LEGAL Eagle #14, a law-related
educator from Syracuse, NY
Up until 1951, a President could legally serve as many terms as
he wished (provided he kept winning the Presidential election). The first
President of the United States, George Washington, only served two terms
despite being very popular. Like many things that he did during his time in
office, Washington set a precedent that Presidents "should" only serve two
four-year terms. Remember that Washington and others were wary of a
President who became so strong that they became like a king. So for 150
years no President served more than two terms in office. In 1940, President
Franklin Delano Roosevelt decided to run for an unprecedented third term as
President. Roosevelt was very popular at the time and he believed that it
was necessary for him to run for a third term because of the domestic (the
U.S. economy was still recovering from the Great Depression) and
international (Germany had invaded Poland in 1939 starting World War II)
situations. In 1944, Roosevelt again ran for re-election (The U.S. was now
an active combatant in World War II) and won. FDR died in 1945 before he
could complete his fourth term in office. The U.S. Congress (with a majority
of Republicans in both Houses) on March 21, 1947 proposed a Constitutional
Amendment to limit a President's term in office. The 22nd Amendment to the
Constitution which limited a person to two four-year terms as President
(this Amendment did not apply to the sitting President at the time, Harry S.
Truman, since it would have been retroactive) was ratified on February 27,
1951. Also, a President that came to office in order to complete a term of
his predecessor could serve only one full four-year term, if he served more
than two years of his predecessor's term). Since the 22nd Amendment was
passed in 1951, some people have called for it's repeal since they wanted a
popular two-term President (Eisenhower, Reagan, Clinton) to be able to run
again. Supporters of repealing the 22nd Amendment argue that a President
automatically becomes a "lame duck" once he or she is elected to a second
term. They argue that a popular President should be allowed to serve if
he/she is continually elected. In order for a person to serve more than two
terms as President, the 22nd Amendment would have to be repealed by another
Constitutional Amendment. In the 1990s there was a term-limit movement which
sought to limit U.S. Congressmen to a certain number of terms in office.
For additional information, check out the following web sites:
Question #8
What 5 critical decisions has the Supreme Court made which affect our
lives today and future generations?
(Submitted by a high school student at Martin Luther King Jr. High School in New
York City.)
Response by LEGAL Eagle #10, an attorney from New York City
It is challenging to come up with only five U.S. Supreme Court
decisions which affect our lives and our future since almost each of the
Supreme Court's decisions have either a direct or indirect affect on our
lives to some degree. The following are certainly among the most critical:
Response by LEGAL Eagle #11, an attorney from New York City
Five critical Supreme Court decisions which have affected our lives are, in chronological order:
Accordingly, I believe that these are five decisions which have had a major impact on our lives, both as individuals and as a society.
Response by LEGAL Eagle #12, an attorney from New York City
Five critical Supreme Court decisions which have affected our
lives are, in chronological order:
Response by LEGAL Eagle #12, an attorney and
teacher from Philadelphia, PA
I think that if you were to ask this question to five different people, you
would have 5 different responses. However, these are my personal favorites.
My criteria for making these choices is that if the Supreme Court didn't
make these decisions, no one else would have bothered or been able to coerce
people to change their behavior.
1. Marbury v. Madison....basically, no one really knew for sure that the Supreme Court truly had the last say, back in the early days of our nation. This case really set things up, so that we genuinely have a balance of power, unique to our nation. Many countries have tried to copy us, but unless they had a court that bothered to stand up, and demand their place, and be recognized by the executive and legislative branches, they only have a free country on paper.
2. All cases denied cert. This seems like a strange answer, but it is the negative of what the SCT does. Sometimes, it is just as important to note what the SCT doesn't do. It is sort of like the argument regarding abortion...what if the child aborted would have been the next Albert Einstein...Essentially, what if the case denied cert. would have changed the course of human history? One never knows, and therein lies the power. The fact that most cases are decided in the highest court of the state, means that states still maintain a substantial amount of power to interpret the constitution from their own perspective.
Question #9
Can a
school prevent students from wearing hats in the building?
(Submitted by a high school student at Martin Luther King Jr. High School in New
York City.)
Response by LEGAL Eagle #11, an attorney from New York City
Yes, a school can make reasonable regulations regarding student
dress.
However, if the hat was a yarmulke or some other headgear that was worn for religious reasons then that might be a constitutionally protected activity that the school couldn't interfere w
Question #10
How can states require that children must stay in school until age
16, considering the Supreme Court ruled in favor of Yoder, in the case of
Yoder v. Wisconsin?
Response by LEGAL Eagle #21, a law student from
Syracuse, NY
Under a state's sovereign "police power", a state is allowed to
regulate for the health, safety, welfare, and morals of its community.
Therefore, a state may enact a mandatory age of school participation. This
rationale is that the more schooling a child has, the better educated
citizen he or she will become. This will lead to economic self-sufficiency
and involvement in the political process.
Question #11
Should the federal government enact hate crime legislation?
Response by LEGAL Eagle #10, an attorney from New York City
I would say that the Federal government should enact hate crimes
legislation only if it serves to proscribe and punish harmful conduct which
is not already covered by other federal statutes. While no one can disagree
with the proposition that "hate crimes" are harmful, wrong and should be
prohibited, once they are enacted into law as statutes they sometimes build
in the unintended consequence of making it more difficult to obtain
convictions for them. This is because the imputation of a stated motive,
such as prejudice against a certain type of group, builds in an extra
element that a prosecutor must prove in order to get a conviction. This may
be difficult to achieve in certain types of circumstances and may actually
make the stated objective more difficult to obtain.
Response by LEGAL Eagle #12, an attorney from
Philadelphia, PA
Hate crime legislation, by its very nature creates a potential
hazard to the integrity of the First Amendment. On the one hand, no one
wants people to feel free to offend others. But, on the other hand, defining
what is hateful is so subjective that reasonable minds could disagree as to
whether something is hateful.
It is my opinion that enough legislation exists to prosecute people who do damage to others in the name of bigotry. Whether those in the executive branch of the government chose to prosecute to the full extent of the law using our current civil rights legislation, is another thing.
We have had enough experiences in this nation to know that hate can rear its ugly head in many different forms, from the days of the Salem Witch Hunts, to the days of the McCarthy Commie Hunts, people can use their form of hate for political purposes. I don't think that any amount of legislation, State or Federal can cure people's desire to raise themselves by putting groups down.
Question #12
What are the names of the current (8/23/2004) United States Supreme
Court members? Who is the Chief Justice?
Response by LEGAL Eagle #14, a law-related
educator from Syracuse, NY
The current Chief Justice of the Supreme Court of the United
States, who has held that position since 1986, is William Rehnquist.
The other eight U.S. Supreme Court justices are:
Ruth Bader Ginsburg
Stephen Breyer
John Paul Stevens
Sandra Day O'Connor
Antonin Scalia
Anthony Kennedy
David Souter
Clarence Thomas
You can read more about the justices at the following website:
http://www.usscplus.com/info/justices.htm
Question #13
Is it true that the Supreme Court recently issued a ruling allowing
law enforcement officers to make a "pre-text" traffic stop?
Response by LEGAL Eagle #14, a law-related
educator from Syracuse, NY
The
Whren Et Al. v. United States (1996) decision might be the case that you are referring to.
Question #14
Are peremptory challenges a constitutional guarantee?
Response by LEGAL Eagle #10, an attorney from New York City
Peremptory challenges themselves are not a Constitutional
guarantee. They are usually authorized by statute. The right to a trial by a
jury of your peers however is a constitutional guarantee and accordingly,
constitutional issues such as due process and equal protection of the law
are invoked when peremptory challenges are used solely to exclude members of
some protected classes (race, sex, gender, physical handicaps etc...)
Question #15
When a state supreme court rules that a state law is
unconstitutional, does that make the law void, meaning it cannot be used to
bring another case before the court?
Response by LEGAL Eagle #3, an attorney from New York City
Your questions asks about state courts, but the analysis is
really the same for both state and federal courts. Courts have the power of
"judicial review", which means that they alone can decide that a certain law
violates the U.S. or its own state's constitution. What in effect happens is
that a court states that the law that was passed by the legislature, (who
have been elected by the people and thus speak for the people), will be
stricken and will have no further force or effect. For example, say Texas
passed a law saying that from now on people would be sent to jail if they
burned a Texas or US flag. (This was a real case Texas v. Johnson) The way
this law came into being was that the people of Texas elected certain state
senators and state assemblymen who voted for this bill and the governor then
signed it into law. The law thus expressed the will of the people. But then
the state (or federal) court looks at the law and sees that it, in reality,
limits a persons ability to express him or herself. Flag burning is
considered projectable "speech". Such a prohibition runs against the First
Amendment to the US constitution (and probably the Texas Constitution as
well) which says that no law can be passed which limits freedom of speech.
Because the court decides that the law violates the Constitution, the law is
stricken from the books. No one could be prosecuted for violating it any
longer because the prohibition against flag burning would no longer be law.
"Judicial review" is an immense power because judges are able to say what is constitutional and what is unconstitutional; this power is even more striking for federal judges who have life time tenure and are unelected. Judges therefore write opinions, because they are supposed to interpret the laws and not merely make up what they think the law should be. A good judicial opinion is one that bases the court's decision on its previous cases that have interpreted the Constitution.
Response by LEGAL Eagle #18, an attorney from New York City
First, it matters whether the state supreme court made its ruling
based on the state or federal constitution. If it was based on the federal
constitution, then the state may appeal the ruling to the U.S. Supreme
Court. If it was based on the state constitution, then the court's ruling
renders the law unenforceable, not necessarily void. Courts make mistakes
sometimes and correct the mistakes later.
A famous example of this was the U.S. Supreme Court decision in Plessy v.
Ferguson which upheld "separate but equal" schools. Decades later the Court
overruled itself in Brown v. Board of Education. Many lawyers expect that
sometime in the 21st century the U.S. Supreme Court will overrule its Roe
v. Wade decision. When that happens, state statutes that are still on the
books (i.e. not actually repealed by the state legislature) which prohibited
abortion will be enforceable again.
To answer the question another way, when a court strikes down a law, the law is not erased from the law books, but its enforcement is prevented. The law is void if it really is unconstitutional, and it is void the instant it is enacted. We depend on the courts to honestly rule on disputes as to a law's constitutionality. But, sadly, the courts sometimes declare constitutional laws unconstitutional because the judges disagree with the public policy choices of the legislature. Such laws are not void. But they are unenforceable until the court corrects its mistake. Usually the correction is made when the point of law in question is before the court in a case involving a different statute. But I suppose it would be possible for one to bring an action for a declaratory judgment to declare the original law valid (after the passage of some time, to make it more likely the court will not be of the same mind).
Response by LEGAL Eagle #23, an attorney from
Philadelphia, PA
The answer is yes. The stricken law can not be used to bring a
new law suit. However, if you are complaining about conduct that violated
the law while it was in effect, then it is possible you can sue. Another
note is checking to see if the law is retroactive in its scope.
Question #16
How long is a copyrighted document protected? Can copyrighted
documents be sampled?
Response by LEGAL Eagle #24, an attorney from New York City
Question: How long is a copyrighted document protected?
Answer: For the life of the author plus 70 years. If the document has an
anonymous author, or if it's "a work made for hire", then for 95 years from
when the work is created. A work is "made for hire" when the maker is either
(1) an employee hired to prepare it or (2) someone who prepares a work for
someone else IF (and only if) (1) the work fits into one of nine classes AND
(2) the person who orders the work prepared and the preparer sign an
agreement, BEFORE the work is prepared, making it a "work for hire".
See http://www4.law.cornell.edu/uscode/17/302.html
Question: Can copyrighted documents be sampled?
Answer: If the sampling fits within "fair use".
See http://www4.law.cornell.edu/uscode/17/107.html
Question #17
When a person violates a documents use what protects the artists
rights?, Does an artist have a right to deny use of their document?, Do
copyrights save the artists rights from "Joe Public"?
Response by LEGAL Eagle #24, an attorney from New York City
Question: When a person violates a document's use, what protects
the artist's rights?
Answer: The federal courts. The artist has to sue (or threaten to sue) the violator for copyright infringement.
Question: Does an artist have a right to deny use of their document? See
http://www4.law.cornell.edu/uscode/17/106.html
Answer: Yes, the artist has the exclusive right to make copies of the
document, to distribute it, and to make a new document based on the old (a
"derivative work").
Question: Do copyrights save the artist's rights from "Joe Public"?
Answer: Yes, see the answer to the previous question about the artist's
exclusive rights.
Question #18
Can a person vote in elections if they have committed a felony? If
not, how was this decided? Who passed the law?
Response by LEGAL Eagle #3, an attorney from New York City
Section 2 of the Fourteenth Amendment to the US Constitution
basically grants to all citizens of the United States the right to vote in
Federal elections, except for those people who participated "in rebellion,
or other crime." Thus, someone who is convicted of a felony is not
guaranteed the right to vote. Each individual state has the power and the
right to decide whether or not convicted felons should be able to vote in a
Federal election, i.e., for President, Vice President, US Senator or US
Representative. Some states, such as Florida, bar convicted felons from
voting in any Federal election for the rest of their lives. Other states, on
the other hand, are not so restrictive, and either permit felons to vote
immediately following conviction, or bar them from voting for only a certain
period of time, such as, for example, five years. Note that this Section of
the Fourteenth Amendment only applies to voting in Federal elections, not to
state or local elections. State constitutions, however, frequently speak on
this issue for their own state and local elections.
Response by LEGAL Eagle #18, an attorney from New York City
No, as far as I know, every state (even Florida!) prohibits
felons from voting. That rule would be in state criminal or election
laws enacted by the state legislatures. I don't know if there is federal
legislation. In New York, there is a statutory procedure for felons to
recover their rights, known as "Relief from Civil Disabilities". It may
be in the Executive Law.
Response by LEGAL Eagle #15, an attorney and
teacher from New York City
It depends upon the state--in a number of states convicted
felons lose the right to vote.
The New York Times recently had an article about this topic. A challenge
has been made in federal court.
Question #19
Can the government intervene if a Native American does something
illegal, but as part of their tribal beliefs on their Indian Reservation?
Response by LEGAL Eagle #2, an attorney and
teacher from New York City
As
long as the tribal beliefs do not violate fundamental public policy
universally recognized in American culture (i.e.--prohibitions against
smoking peyote; human sacrifices; plural marriages, etc.)
Question #20
Have there been cases in the past that dealt with a parent's right,
or lack thereof, to decide to take their child off of life support in the
event of irreversible permanent brain damage? If so, how were they decided?
Response by LEGAL Eagle #6, an attorney from New York City
There have been many cases, going back to the 1970s and the first
of the highly publicized end of life cases involving Karen Ann Quinlan, a
young woman who suffered irreversible brain damage. The U.S. Supreme Court
also heard a case about 10 years ago involving another young woman in the
Cruzan case. These cases illustrate the difficulties in these kinds of cases
-- in Quinlan the parent's request to remove a respirator was granted and in
Cruzan the request of the parents to remove a feeding tube was denied.
I will assume that your question is related to younger children still living with their parents. In cases involving young adults over 18, removal of life support often comes down to whether the patient had ever expressed any wishes about termination of life support and whether they would want to live after suffering injuries and incapacity. With young children, the issue comes to the child's best interests. Parent do make treatment decisions for their children, but those decisions have to be in the best interests of the child. They cannot decide against a treatment for a child if it is in the child best interests. The same standard applies to the termination of life support.
The best answer I can provide to your question is that it would depend on what the doctor's recommendation was about treatment, the patient's medical prognosis, and the prevailing societal ethic about when it is appropriate to end life support. Assuming the brain damage was irreversible, it would also have to be severe to the point that the child had no consciousness and no prognosis for improvement to a better state. There could be some cases where a child with irreversible brain damage had a consciousness and could live a quality of life which, although not as full as a person without brain damage, had ought to be respected. Alternatively, if the child was in pain from the brain damage not likely so I've read), termination of life support could be authorized. Again, the standard is the patient's best interests. Life is favored over death unless the patient's condition and prognosis is extremely dire. It must be more than that the patient's quality of life will be lower than other people. It must be supported by the child's doctor. Finally, it is likely that a court will have to make the final decision authorizing the cessation of life-sustaining treatment.
This is a difficult subject area and it's difficult to explain it in a few paragraphs. I would be pleased to follow this up if you have any further questions.
Response by LEGAL Eagle #15, an attorney and
teacher from New York City
Once a patient, juvenile or adult, has been placed on life
support, a Hospital would be very reluctant to allow such support to be
removed. For adults a "living will" or "health care proxy" should be
considered. A juvenile would not be permitted to have legally executed such
a document.
Question #21
What is
the definition of a "militia" with regard to the Second Amendment?
Response by LEGAL Eagle #3, an attorney from New York City
The Second Amendment has generated a lot of discussion recently.
Much of the debate stems from the somewhat confusing wording of the
Amendment itself, and from the fact that the US Supreme Court, and other
state and federal courts, have not decided many cases based on it.
Nevertheless, it is generally agreed that the word "militia" as used in the
Second Amendment means something analogous to today's National Guard. The
purpose of the Second Amendment is to provide for the effectiveness of the
militia (i.e., the National Guard), which, as the US Supreme Court stated in
US v. Miller, 307 US 174 (1939), would presumably protect a citizen against
the unconstitutional usurpation of power by the federal government. The term
National Guard is somewhat of a misnomer. Each state has its own National
Guard; thus there are, in reality, 50 National Guards, and it is these
National Guards that have the right to keep arms in order to protect
citizens from the unconstitutional actions by the federal government. It is
important to note that the Second Amendment alone does not give all citizens
the right to own a gun; rather, it merely prevents to the federal government
from disarming the members of the National Guard. One last point: the Second
Amendment states that the militia should be well regulated. Thus, Congress
would most likely have the authority to limit the arms of the National Guard
so that the militia could be regulated in an orderly and proper fashion.
This issue, however, has never been decided upon by a court.
Question #22
In U.S.
v. Miller 1939, the court voted 9-0 that the right to own a gun applied to
well regulated militias, so why do the common person have the right to own a
gun?
Response by LEGAL Eagle #3, an attorney from New York City
The Second Amendment to the US Constitution reads: "A well
regulated Militia, being necessary for the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed." Contrary
to what many people think, the Second Amendment has very little legal
significance in today's law. Both the federal and state governments have the
ability to restrict the sale and possession of guns, and there is no
fundamental right to own a gun.
How is this so? The Second Amendment was the Framers of the Constitution solution to prevent the federal government from taking the state's power to control its own militia. What the Second Amendment does is it prevents the federal government from disarming the members of the National Guard. (The term National Guard is somewhat of a misnomer. Each state has its own National Guard. There are thus 50 National Guards in the United States). Consequently, the Second Amendment acts only as a restriction on the federal government and prevents the US Congress from passing legislation that would infringe on a state's right to arm and train its own militia/national guard. Contrary to popular belief, this amendment does not give each individual person the right to own his or her own gun. In fact, Congress can restrict the individuals rights to buy, own and use guns. Indeed, the US Supreme Court stated in US v. Miller (the only Supreme Court case to address the scope of the Second Amendment): "the right to keep and bear handguns is not guaranteed by the Second Amendment."
There are some other cases on point. For example, in the case of US v. Warin, a man was convicted of possessing an unregistered machine gun. He argued to the court that he was subject to enrollment in the his state Militia and that therefore he had a fundamental right under the Second Amendment to possess the gun. The court rejected his argument and instead held that the Second Amendment guarantees a collective, rather than an individual right to bear arms, and thus does not give any individual a personal right to own a gun. Similarly, in Quilici v. Morton Grove, the court held that the government can regulate the sale of firearms; in fact, in this case, a local town completely prohibited the possession of guns.
Question #23
Is
there a way the court can stop pornography from being seen on the internet
by younger students?
Response by LEGAL Eagle #18, an attorney from New York City
The following news release on the Yahoo decision (since
rescinded) to carry hardcore pornography in its on-line store should be
helpful.