YOUR CONSTITUTIONAL RIGHTS
AND FREEDOMS
IKNOW MY RIGHTS!
We’ve all said that—perhaps with an emphatic gesture—to someone who challenged what we perceived to be one of our fundamental rights as an American.
Trouble is, few people actually know their rights. Fewer still understand the limitations on the legal (or civil) rights we have as Americans. Rather, most of us have vague ideas based on oft-heard slogans and bumper-sticker wisdom: The Constitution makes this a free country. I can say anything I want to say. I can conduct any kind of religious ceremony that fits my beliefs. I can do anything I want to that doesn’t hurt someone else. The police can’t search my person without a warrant.
In fact, none of these statements are true without qualification. Most of the time, mistakenly believing these things are absolute rights causes nothing more than minor embarrassment (or a poor grade on a civics exam). But in some circumstances, acting on these notions can result in serious criminal jeopardy.
In this chapter, we’ll look at such personal rights as freedom of speech, freedom of religion, the right to travel freely, the right to assemble peaceably, and the right to bear arms. You’ll find a whole cluster of rights pertaining to criminal proceedings, including the well-known right to remain silent, in Chapter 17.
The Case of the Constitutionally Protected Cookies
Pleasantville is a small, pleasant city in the State of Grace. One of the city’s cheerful traditions is Cookie Day, an annual event in Pleasantville Park. Various organizations in town set up tables and sell homemade cookies to raise revenue. Many different clubs, associations, societies, churches, and civic groups participate. Alas, at last year’s Cookie Day a fight broke out between the parishioners of several local churches and the members of the Pugnacious Atheists of Pleasantville (PAP)—a highly vocal group opposed to all forms of organized religion. The scuffle began when PAP members
refused to take down an enormous sign that read, “People Who Believe in God Are Pinheads Who Make Us Toss Our Cookies”;
refused to stop selling cookies in the shape of religious symbols (for example, crosses, doves, church steeples, Stars of David, and Buddhas) with “Don’t Be a Pinhead!” written in vanilla icing.
This year, the City Council of Pleasantville decreed in a new ordinance that “no organizations supporting or opposing religion shall be allowed to participate in Cookie Day on city property. This will ensure the ‘separation of church and state’ in our fair city and also eliminate any opportunities for ‘hate speech’ directed at our citizens.”
Many citizens thought the new rules made good sense. As an editorial in the Pleasantville Gazette put it, “Our local churches have many other ways of raising money, and we certainly don’t have to provide a forum for kooky organizations with extreme views to sell nasty cookies that insult people. All in all, the new ordinance seems a reasonable exercise of governmental powers for the public good.”
To everyone’s amazement, two organizations immediately joined forces to protest the new ordinance:
1. The Pugnacious Atheists of Pleasantville—They claimed that the new ordinance is an assault on the rights of free speech and free assembly set forth in the Constitution.
2. The Community Church of Pleasantville—They opposed the new ordinance as an infringement of constitutionally protected freedom of religion.
The leaders of the two organizations—Eaton Sweets, the church’s pastor, and Ima Hater, PAP’s Fearless Leader—visited Noah Lott, a local attorney who was an expert in constitutional law.
Noah began by handing out copies of the First Amendment to the U.S. Constitution:
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.
“It’s no accident that these rights and freedom are in the first paragraph of the Bill of Rights,” Noah said. “They are clearly among the fundamental rights we have as citizens of the United States.”
It’s hard to imagine a schoolkid in the United States who hasn’t wondered why life, liberty, and the pursuit of happiness were listed as “inalienable rights” in the Declaration of Independence—and what that odd label really means. The philosophical concept that Thomas Jefferson wanted to get across is that individuals have certain “natural rights” (God-given rights) that can never be fully transferred to government.
FUNDAMENTAL RIGHTS
Citizens of a country waive some personal freedoms so that people can live together more or less comfortably. For example, a person who pursues happiness by stealing someone else’s property is likely to have his liberty taken away for a while by the government—but government can’t arbitrarily decide to enslave people. The idea is that freedom is a natural (inalienable) right possessed by all people everywhere—a right that doesn’t depend on local beliefs, customs, or laws.
“It’s often said,” Noah continued, “that our belief that everyone should be free to say what he or she likes is put to the test when we run into speech that goes against everything we hold dear.” He frowned at Ima. “I disagree with most of the words you speak, yet I will fight as hard as I can for your freedom of speech—because the First Amendment protects everyone, including those who express viewpoints that most people find obnoxious.
“Freedom of speech is an aptly named right. You are free to speak and to otherwise express yourself (in writing, broadcasts, recording, on the Internet, in other media, and symbolically) and say virtually anything you want—as long as you don’t violate another person’s rights or cause predictable immediate harm.”
Eaton Sweets jumped into the conversation. “You lost me. How can I express myself symbolically?”
“By wearing a T-shirt that proclaims a message, by trampling a U.S. flag, by torching a book, by burning a cross (if the act doesn’t communicate immediate threat or intimidation), and even by making insulting cookies in the shape of religious symbols.”
“Absolutely!” Ima gestured triumphantly.
Noah talked on, “Several U.S. Supreme Court decisions extended free-speech protection to symbolic speech: The government can’t ban these activities, even though the majority of other people in the community may find them repugnant.
“When we talk about free speech it makes sense to begin with the assumption that there are no rules—and then zero in on the few kinds of speech that governments can regulate. For example, there’s a ‘preliminary crime’ called solicitation [see Chapter 17] that’s committed when one person urges another person to commit a crime. A person charged with solicitation can’t invoke his or her right of free speech as a defense.
“The other few restrictions to free speech that do exist are about balance—the goal is to balance an individual’s right to speak freely against the government’s responsibilities to prevent and redress harm to others.”
STUDENT SPEECH
“Every schoolkid learns,” Noah continued, “that freedom of speech doesn’t include the right to falsely scream ‘Fire!’ in a crowded theater. This is the classic example of speech that threatens the public interest with a clear and present danger. I’ve emphasized ‘falsely’ because the basic idea is that government can forbid speech that has no useful purpose of any kind and will create real and imminent danger. Another example is a speech that incites a crowd to riot. Not surprisingly, inciting to riot—or some variation on the theme—is a crime in most states.
“The requirement that the danger be ‘present’ (imminent) is an essential requirement. Government can’t forbid or limit speech that advocates lawless actions unless the speaker is trying to whip listeners into a frenzy that will incite lawlessness there and then.”
Ima raised her hand. “So I can urge people not to pay their city tax bills next month to protest the tax exemptions given to churches?”
“Urge away,” Noah replied.
“Fighting words strong enough to provoke an angry reaction are a concept that’s the cousin of inciting a crowd to riot. Fighting words aren’t protected speech, because to quote the U.S. Supreme Court’s explanation in Chaplinsky v. New Hampshire, a 1942 case, they ‘by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ The Court went on to observe that fighting words are never an ‘essential part of any exposition of ideas, and . . . any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ People who use fighting words are often arrested for breach of the peace, or some such crime. They often defend themselves by asserting their right of free speech—and they often lose.
“There are many different insults and epithets that qualify as fighting words.” Noah smiled at Ima. “Calling someone a ‘pinhead’ is probably not strong enough.”
WHAT ABOUT HATE SPEECH?
“Speech that defames another person is not protected,” Noah said (see Chapter 3). “Defamation is an untruth that damages a person’s reputation. Slander is defamation by a spoken statement; libel is defamation in print. The law of defamation makes it extraordinarily difficult to defame a public official—which ensures that citizens (and the media) can criticize and complain about government and leaders to their hearts’ content.”
“Obscene speech (for example, selling or distributing pornography) is also not protected by the First Amendment. The Supreme Court’s definition of obscene material tends to change over time. The current definition has three components:
1. The work depicts or describes sexual conduct in a patently offensive way (as determined by a “reasonable adult” who applies the contemporary standards held by people in the state).
2. The sexual conduct is specifically described in the state or local law that outlaws obscenity.
3. The work, taken as a whole, lacks serious value and appeals to a prurient interest in sex.
“This can be difficult to prove in court—and is highly situational—because it’s tough to come up with a good definition for pornography that doesn’t ‘accidentally’ encompass valid art, medical and scientific text books, and edgy literature, to name a few challenges. As the late Justice Potter Stewart famously said about obscenity in a case dating back to 1964: ‘I know it when I see it.’”
Although state and local governments can attempt to ban the sale of so-called adult-oriented materials, the constitutionally protected right to privacy (see below) prevents government from making it a crime for adults to have these materials in their homes. This is not true of child pornography, possession of which is a serious crime in all states.
“During the nineteenth century,” Noah Lott said, “many legal scholars saw the right to assemble peaceably as part of the right to petition government. Simply put, people had the right to assemble in front of federal government buildings to seek redress for their complaints. But in the twentieth century, other kinds of public protests—such as picketing by union members, marches to protest discrimination, antiwar rallies, and public demonstrations to support different viewpoints—transformed the right of peaceful assembly into an important freedom of its own, a freedom that the U.S. Supreme Court has affirmed as a fundamental right.
Most of the U.S. Supreme Court’s major peaceable-assembly decisions during the twentieth century are responses to state and local government attempts to stop assemblies by arresting the participants—typically on charges of breach of peace or disorderly conduct, because they violated statutes supposedly designed to prevent potentially violent gatherings. The Court said that the fear of a disorderly crowd doesn’t justify banning a peaceful demonstration or cancel the right of peaceable assembly.
The only justification for restricting the right of peaceable assembly is our old friend clear and present danger or an imminent incitement of lawlessness. Consequently, courts have overruled local prohibitions and granted the freedom to assemble peaceably to groups that espouse racial and religious hatred. “As a federal judge noted in the famous Skokie parade case in 1977 (the court overturned a local ban that prevented a group of Nazis from parading through Skokie, Illinois, at the time the home of many Holocaust survivors), ‘it is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.’”
NOT ALL ASSEMBLIES ARE PROTECTED
Reasonable Restrictions on Public Forums
“When I hear the terms free speech and freedom of assembly,” Noah went on, “I think of a speaker standing on a soapbox in the town square, or a group of protesters parading down Main Street. Well, one group of U.S. Supreme Court decisions makes it unconstitutional for government to arbitrarily forbid access to public property—which can be an effective way to squelch free speech. On the other hand, government can ensure order by establishing reasonable restrictions on the time, place, and manner of access to public forums. As one Supreme Court decision comments, no one can ‘insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech.’
“However, the restrictions can’t be used—as they often were in the past—to deny a group access to public places merely because the members advocate unpopular, even offensive positions.
“Government can require parade permits . . . insist that demonstrators remain in a designated area of a public forum . . . prevent protesters from blocking access to a public building . . . have demonstrators pay reasonable fees for policing costs. But none of this can be done selectively, based on the content of speech. A city can’t charge a group who will deliver an unpleasant message more to parade than, say, the Girl Scouts.”
Ima Hater sat up in her chair. “Or refuse space in Pleasantville Park for a ‘kooky organization’ that intends to sell ‘nasty cookies that insult people.’” Ima cheered, “Let’s hear it for the First Amendment.”
THE AYES DON’T HAVE IT:
THE PROTECTED MINORITY
“And also the Fourteenth Amendment,” Noah said. “The rights I described cover your activities in Pleasantville Park because of the Doctrine of Incorporation, which by the way has nothing to do with starting a new business. Rather, it’s a doctrine created by the U.S. Supreme Court that extends the fundamental rights and liberties set forth in the U.S. Constitution to prevent encroachment by state and local government.
“If this sounds unnecessary, consider that the Bill of Rights was added to the U.S. Constitution to protect the rights of citizens from actions by the U.S. government. Until late in the nineteenth century, the protections afforded by the Bill of Rights did not apply to state or local government. A state (even a city) could, for example, have more stringent limits on free speech than the federal government—and often did.
“A series of Supreme Court cases spanning more than fifty years interpreted the Due Process and Equal Protection Clauses of the Fourteenth Amendment—an amendment aimed squarely at states—to incorporate most constitutional protections.
“The bottom line: State and local governments can’t encroach on most of the fundamental liberties spelled out in the Bill of Rights and elsewhere in the Constitution.”
I’ll Take It to the Supreme Court
“While we’re peeking at the inner workings of constitutional law,” Noah said, “let me call your attention to one other detail that few people think about. Specifically . . . why does the U.S. Supreme Court get to say whether or not federal, state, and local laws pass constitutional muster?”
Eaton shrugged. “Because it’s the supreme court. We have a government based on checks and balances—clearly the courts have to be able to balance the power of the legislative and the executive branches.”
“True enough—but nowhere on the pages of the Constitution will you find the phrase ‘checks and balances’ or a clause that gives the Supreme Court the job of reviewing laws passed by Congress, by state legislatures, or by local governments. However, this kind of judicial review may happen dozens of times each year, as the Court strikes down or upholds various laws, statutes, and ordinances—declaring them unconstitutional or constitutional.
“It’s not too far-fetched to say that the Supreme Court itself invented judicial review. It happened in 1803, when, for the first time, the Court invalidated a federal law that conflicted with the Constitution. The Chief Justice explained that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution.”
“The third major personal right secured by the First Amendment,” Noah said, “is freedom of religion. The Constitution proclaims that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .’ These are the two short clauses:
1. The establishment clause that, practically speaking, is the wall that separates church and state (to use Thomas Jefferson’s famous metaphor). Government can’t establish an ‘official religion’ (like the Church of England), nor can it act in ways that interfere with religions, favor one religion at the expense of another, or hinder one religion to advance another.
2. The free exercise clause that prevents government from setting limits on how a person practices his or her religion unless it has a compelling interest (for example, government can ban polygamy and human sacrifice). However, a neutral law of general applicability that impacts the exercise of religion is acceptable (for example, a state may ban the use of peyote even though it’s used in some religious ceremonies).
“When government puts limits on religion it may simultaneously limit speech—so several of the cases I use as examples seem similar to the free-speech examples I’ve already talked about.”
The Broad Meaning of Establishment
Noah continued explaining, “Back in 1947, the late Justice Hugo Black authored a U.S. Supreme Court decision—Emerson v. Board of Education—that set forth an oft-repeated definition:
The establishment of the religion clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
“Although this list sounds extensive, there are circumstances when government can pass valid laws that concern religions. The U.S. Supreme Court provided a three-prong test—it’s nicknamed the Lemon Test because it was announced in the 1971 decision Lemon v. Kurtzman—that specifies the requirements of constitutional legislation:
1. The government’s action must have a secular legislative purpose.
2. The government’s action must not have the primary effect of either advancing or inhibiting religion.
3. The government’s action must not result in an excessive government entanglement with religion.
“The court has applied this principle to different situations and has come up with results that strike some legal scholars as inconsistent—a consequence of the difficulty of resolving First Amendment issues.”
“Public schools can’t require students to say prayers,” Noah said, “listen to prayers read by teachers, or set aside a period for silent prayer. A school can’t invite a clergyman to present an invocation before a school event, nor can it authorize (or allow a student body to authorize) student-led prayer. Any requirement that puts pressure on students—directly or from peers—is likely to be struck down.”
Noah went on, “State government can fund student transportation to schools—public, private, and parochial—because the applicable law applies to all citizens without regard to religious belief. However, a state can’t pay part of the salaries of teachers at religious institutions, because that practice excessively entangles the state with religion.
“However, states can partially reimburse the parents of students who send their children to private schools, including religious schools. Public school districts can provide secular textbooks, school supplies, and other nonreligious assistance to religious schools. And, public funds can be used to support the construction of nonreligious buildings at religious institutions of higher learning.
“Finally, the U.S. Supreme Court has upheld the constitutionality of governments providing school vouchers to pay tuition at private and religious schools.”
Religious Symbols in Public Places
“It’s a violation of the Establishment Clause for a school district to require the posting of the Ten Commandments in every public classroom,” Noah continued. “However, it’s not unconstitutional to post the Ten Commandments in courtrooms and legislative chambers, or on state Capitol grounds—because since the earliest days of the nation’s history, there’s been an ‘unbroken history of official acknowledgment by all three branches of government of religion’s role in American life.’”
“Also, while the Ten Commandments are religious, they have ‘an undeniable historical meaning.’ (The U.S. Supreme Court made this point in a 2005 decision, Van Orden v. Perry.) The court has also noted that mere religious content does not run afoul of the Establishment Clause. Moreover, a city that has accepted a religious monument (for example, a Ten Commandments monument) is not required to accept other religious monuments. Simply put, the city is not required to give equal time to other faiths.”
Religious Symbols in Public Holiday Displays
“Government can include religious symbols in public holiday displays—a Christmas crèche for example surrounded by secular holiday symbols—when the benefit to religion is merely indirect, remote, and incidental,” Noah explained. “However, a strongly religious symbol that occupies a prominent position—for example, a Christmas crèche prominently displayed in a county courthouse that included the Latin phrase Gloria in Excelsis Deo—is unconstitutional.”
Religious Use of Public Facilities
“The principle that government must not entangle itself in religion is violated when government tries to turn public places into religion-free zones. If public facilities are made available to secular groups, religious organizations can’t be excluded merely because they advocate religion. In other words, constitutionally required neutrality toward religion is not hostility toward religion.”
Eaton Sweets leaped to his feet. “So Pleasantville can’t exclude churches from Cookie Day?”
“Not without a much, much better reason than the Pleasantville City Council has come up with so far,” Noah said. “But before we reach conclusions, we have to examine one last First Amendment clause.”
Your Right to Freely Exercise Your Religion
“To quote the U.S. Supreme Court, the Free Exercise Clause ‘embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.’ In other words, government can never tell you what—or what not—to believe, but it can establish rules that limit religious practice in certain situations,” Noah clarified.
“For example, you can belong to a religion that advocates bigamy and polygamy—and proclaim the virtues of these practices to everyone you meet—as long as you remember that every state in the Union makes it a crime to have more than one spouse. All of these laws are constitutional.
“For many years, the U.S. Supreme Court allowed limitation on the exercise of religion only when government had a compelling interest. The Court subsequently announced a slightly softer rationale when it upheld that a criminal statute that impacted the practice of a minority religion but didn’t target a specific religion (the peyote statute I mentioned previously, that makes the drug illegal although the ban burdens some religious practice). Over the years, a number of other well-publicized decisions have given shape to Free Exercise protections:
1963—A state must provide unemployment benefits to a Seventh Day Adventist who turned down a job that required work on Saturday (his Sabbath).
1972—A state can’t require Amish students to attend school until the age of seventeen.
1979—A state can’t enforce hunting laws against Native Americans whose religion requires that they hunt moose out of season.
1986—The U.S. Army can require an Orthodox Jewish officer to not wear a yarmulke (skull cap) on duty, as part of the military’s ban on unconventional headwear.
1988—The federal government can construct a road through a national forest that certain Native Americans consider religious sacred ground.
1993—A state can’t pass laws that target minority religious practices that most of the population disapproves of—in this case, animal sacrifice.
2004—A state can refuse to award college scholarships to students studying to fulfill a religious calling—in this case, a degree in devotional theology.”
“What Will Happen on Cookie Day?”
Eaton Sweets and Ima Hater asked that question simultaneously.
“I’m confident,” Noah answered, “that both of your organizations will participate in Cookie Day. For starters, I will write a letter to the City Council of Pleasantville explaining why the new ordinance violates both your freedom of speech and freedom of religion.
“A detailed explanation may be enough to bring about a change. If it isn’t, we’ll seek a preliminary injunction in federal court—essentially a court order that commands the City of Pleasantville to allow your participation in Cookie Day.
“Courts are willing to issue preliminary injunctions in First Amendment cases because the Supreme Court has stated that ‘the loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.’”
Other Things Worth Knowing about Rights and Freedoms
Cookie Day came and went without any protests or fist fights. In fact, Ima Hater was feeling so good that she forgot that Pleasantville had recently passed another ordinance forbidding smoking in public. She lit up a small cigar and blew smoke rings at several people—including the policeman who eventually gave her a citation for committing an infraction (see Chapter 17).
People who believe they have a right to smoke in public generally make one of two arguments:
1. The right to smoke is a fundamental right to privacy (see below) that is protected by the U.S. and state constitutions.
2. Equal protection clauses in constitutions prevent the state from creating legislation that discriminates against smokers.
“Sorry Ima,” Noah Lott said. “Smoking in public has never been declared a fundamental right; therefore state and city governments can limit smoking in public places if the legislation they enact has a rational purpose. Because anti-smoking laws can be justified by many plausible arguments—many related to government’s interest in preserving the health of nonsmokers—courts typically don’t find the restrictions unconstitutional.”
Speaking of the Right to Privacy
Back in 1965, the U.S. Supreme Court declared unconstitutional a Connecticut law that prohibited the use of contraceptives—and, in the process, announced the existence of a constitutional right to privacy.
The Constitution does not explicitly mention such a right, but several of the Justices who wrote the decision noted that various amendments in the Bill of Rights create zones of privacy into which the government cannot intrude. Simply put, there are some highly private areas of our lives that should be beyond the reach of government control.
This is the central concept of the right to privacy as it has been developed in a series of more recent decisions, including Roe v. Wade, the controversial 1973 ruling that a woman’s choice to have an abortion is a private decision reached by her and her physician.
Many critics of the right of privacy—including two Justices who wrote dissents of the original decision—argue that the so-called right to privacy doesn’t exist, and that courts can now add new rights to the Constitution simply by labeling them privacy rights. In fact, courts have been reluctant to expand the zones of privacy much beyond intimate, highly personal activities—such as marriage, contraception, consensual sex, family relationships, and the rearing and educating of children.
As with other fundamental rights, government must have a compelling interest to invade the right of privacy.
The First Amendment forbids the government to create any law that abridges the freedom of speech or of the press. Although these two freedoms are mentioned individually in the Bill of Rights, courts have treated both rights as different sides of a single coin: our fundamental right to express ourselves freely. Because freedom of the press is recognized as a fundamental right, it can’t be limited unless government has a truly compelling reason to do so. The limitations on the press fall into two categories:
1. Prior restraint—Censorship laws prohibit newspapers and other media from publishing specific kinds of information (for example, government secrets).
2. Post-publication—Defamation laws (see Chapter 3) punish the media for publishing libelous statements.
Of the two, prior restraint is considered the most oppressive challenge to freedom of the press. As the U.S. Supreme Court said in Nebraska Press Association v. Stuart, a 1976 decision:
prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.
Consequently, any government attempt at prior restraint of the press starts out with a strong presumption that it’s unconstitutional. The government must prove that disclosing information will cause direct, immediate, and irreparable damage to our nation or its people.
A fairly common kind of prior restraint is called a gag order—an injunction issued by a judge who wants to stop the media from reporting on a current case. Appeal courts are reluctant to sustain gag orders unless the issuing court can make a strong case that pretrial publicity will make a fair trial impossible.
Your Rights When Out of the United States
It should go without saying, although I’ll say it anyway, that a U.S. citizen in a foreign country, is subject to that country’s laws and regulations—which may not afford the protections available under U.S. law.
As many Americans who commit crimes overseas find out each year, a traveler
can’t invoke his or her rights under the U.S. Constitution when in another country;
doesn’t have the same set of fundamental rights that Americans enjoy;
doesn’t have the right to a jury trial (few foreign countries provide trial by jury) or all the other procedural protections Americans take for granted (see Chapter 17);
can be imprisoned for months of pretrial detention;
may face trials that involve lengthy delays or postponements;
typically must deal with criminal proceedings conducted in a foreign language.
Your Right to Travel Freely in the United States
Another fundamental right that is not mentioned explicitly in the Constitution is the right to travel freely. As one U.S. Supreme Court Justice wrote, the right to travel is “a virtually unconditional personal right, guaranteed by the Constitution to us all.” Some legal scholars believe that the right to travel was considered so fundamental that the framers of the Constitution saw no need to include it in the Bill of Rights.
The right to travel has three aspects:
1. Every citizen has the right to travel freely between states.
2. A citizen of one state who enters another state enjoys all of the privileges and immunities (rights and benefits) available to the local residents. This is spelled out in Article 4, Section 2 of the Constitution.
3. A citizen who moves permanently to another state is entitled to all of the rights and benefits available to other citizens of the state.
Many of the right-to-travel cases that reach the Supreme Court involve challenges to durational residency requirements—laws that deny benefits to newcomers until they have lived in the state for specific periods of time. These benefits can range from acquiring a low-cost hunting license to paying in-state tuition at a community college.
Because some durational residency requirements may penalize people who exercise a fundamental right—or else deter people from exercising a fundamental right—courts will invalidate them unless they achieve a compelling governmental interest.
A state law requiring one-year residency before one could be eligible for welfare assistance was declared unconstitutional. So was a state law that set a durational residency requirement before a new arrival could register to vote.
However, a one-year residency requirement before a newcomer can file for divorce was upheld. And durational residency requirements that define when a student can receive lower in-state tuition at public colleges have also been ruled constitutional.
The Second Amendment of the Bill of Rights provides: “A well regulated Militia, being necessary to the security of the free State, the right of the people to keep and bear Arms, shall not be infringed.”
Until 2008, legislators and courts were not certain if the second clause—the right of the people to keep and bear Arms, shall not be infringed—was simply a collective right, a necessary adjunct to the need to have a well-regulated militia. However, in 2008, the U.S. Supreme Court declared in District of Columbia v. Heller that the Second Amendment protects an individual’s right to self-defense and gun ownership. It also noted that “the inherent right of self-defense has been central to the Second Amendment right.”
The Court went on to say,
Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the nineteenth-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful. Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
The bottom line: There is a constitutional right to bear arms, but government can set reasonable rules for the kinds of weapons available, purchasing, ownership, possession, concealment, and use.
In a second landmark decision, McDonald v. Chicago, announced in 2010, the U.S. Supreme Court said that the Second Amendment applies to state governments and protects gun owners from overreaching regulations imposed by state and local laws. As before, local government can impose reasonable rules on gun ownership.