Discussion Group Report

Sometimes questions arise about the constitutionality of laws. This month the Discussion Group read the U.S. Constitution and discussed it. Below are some of the questions raised and the exact words in the document that pertain to them, followed by brief commentary. You may have your own opinion about what the Constitution means with regard to some of them.

Gun control: Amendment II: "A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Some believe this provision guarantees the right of people to keep and use any arms without any restrictions. Others believe it allows the government to put restrictions on the ownership and use of arms to protect the citizenry from murder and injury. These latter argue that the opening phrase in the provision states that the purpose of the right to bear arms is to provide for a Militia and does not give people the absolute right to own arms for other purposes. The opening paragraph of the Constitution, they point out, says that one of the purposes of the constitution is to "promote the general Welfare." If restricting the ownership and use of guns helps prevent crime, then this promotes the general Welfare. The former say the framers did not intend to restrict the right to bear arms to use for the Militia. The reference to the Militia is a mere statement that a Militia is necessary, but it was not intended to confine the right. Recently I heard a constitutional scholar say that, at the time of the writing of the Constitution, the term Militia was commonly used to refer to the military.

Search and seizure: Amendment IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall be issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Commentators have expressed concern that some provisions in the Patriot Act, enacted following 9/11, infringe on people's constitutional right to privacy. I have heard it contended that the law gives police the right to search a suspect's house without obtaining a judge's order and without notifying the suspect that his house has been searched. Previous to the enactment of this act the judge's order and notification to the suspect were required. So far I know of no one who has actually taken legal action to contest the Act. Its constitutionality can be contested legally only through such action.

Treatment of Prisoners: Amendment V: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..." Also, Amendment VI. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." There is controversy over the detainment of prisoners suspected of terrorist crimes and the detainment of prisoners at Guantanamo Bay. In the case of some of the former, they were detained for an unusually long time before being informed of the charges and before being allowed attorneys. In the case of the latter, the Bush administration has classified them as "enemy combatants" and apparently intends to hold them indefinitely. Does the constitution allow these treatments? Or is this a question that more properly should be considered as relating to the Geneva Convention?