Our Constitutional Freedoms

When the Framers thought to put into writing our basic freedoms and rights, they never thought that the country that they knew then would become the country that it is today. The original document did not contain the essential freedoms that are now outlined because the Framers did not view their inclusion as a necessity. The Constitution is the basic framework that is looked to for guidance, but it does not and cannot, cover everything. The rights and freedoms they established are now at the center of countless political issues. At these times of disputes, the judges of the Judicial Branch are the ones that are looked to interpret the Constitution. There is no right or wrong interpretation and not everyone is going to agree on the differing opinions. The freedom of speech, freedom of the press to protect sources, the separation of church and state and gun control are just a few of the major topics of debate and in many court cases.

Amendment I: 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 to peaceably assemble, and to petition the government for a redress of grievances. The First Amendment freedoms are meant to make life and society better. These freedoms are accomplished through the First Amendment. It prevents the government from controlling the speech of its population. Free speech and expression are the forerunners of a true democratic society, and without these important freedoms, governments can force undue restrictions on its citizens. While this is true, it is also true that these freedoms cause problems in life and society.

Without this Amendment, religious minorities could be persecuted, the government could very well establish a national religion, the gathered people could be silenced, the press could not chastise the government, and citizens could not mobilize for social change. This country would be reverted to the country that we had declared our independence from, England. The Constitution is the most important thing in making sure that America is free because it is what grants us our fundamental freedoms. We cannot limit the First Amendment because to put a limit on it would be to limit and weaken the powers and purpose of the Constitution. The First Amendment protects all kinds of speech, verbal, written, and not just popular speech.

The intent of the First Amendment is to protect the very kind of speech that many want to ban. There should be no limitations to the freedom of speech and expression as protected in the First Amendment. Next, the Establishment Clause seeks to guarantee religious liberty by prohibiting Congress from passing laws "respecting an establishment of religion." The First Amendment recognizes that religious liberty - freedom of conscience - is an inalienable right for all human beings. The First Amendment prohibits government from establishing n organized religion and protects the right of each person to practice (or not practice) any faith without government interference. It also recognizes that the people have the right to "peaceably assemble."

This is one of the foundational freedoms of democratic participation. People have the right to congregate in public to march, protest, demonstrate, carry signs and otherwise express their views in a peaceful way. It also means people can join and associate with groups and organizations without interference from the government. The First Amendment also says that the people have the right to appeal to the government in favor of, or against, any policy that affects them, or feel strongly about. This freedom includes the right to gather signatures in reference to a cause and to lobby legislative bodies for or against legislation.

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. Practical men see the controversial and "elusive" Second Amendment as an attempt to "declare and restrict" relationships of power. The last was understood, in the language of the day, to be all able-bodied men, bringing weapons of their own when called upon. The simple statement that centers on the conjunction of two statements, one about a military organization ("the Militia") and the other about "the people's" rights to arms, has become one of the most controversial areas of Constitutional Law. The Constitution itself states that their connection not only exists, but also is "necessary."

This sort of military force is believed to be the one that drove the British army from our continent. This Militia was not necessary to win many battles, but they did provide continual rebel harassment against the British. Many believed that the loosely disciplined troops were extremely effective in the defense of their towns and neighbors, but were less effective as the Continental Army when it came to defensive actions far from the militias' home towns. There is confusion about the meaning of the phrase "well-regulated". In the language of the day, "well-regulated" had nothing to do with governmental control or restriction. The militia was an impromptu force and since they were not a professionally trained military unit, the phrase does not seemingly imply regulation by the government. Rather, the obligation of the government is believed as encouraging firearms skills in the general public, or to at least not to discourage the skills through laws limiting the people's right to own and practice with such arms. Also, the right to bear arms can be of the interpretation there is a "right" to establish military organizations under government control and that "the people" enrolled in those military organizations have the right to weapons. No individual private "right" to arms seem to exist. Under this interpretation, the Amendment merely refers to the "right" of government troops to be armed.

When it comes to the right of the press to protect their sources, there are many interpretations of what the Amendment means and what it is suppose to, and not suppose, to protect. A notable case of recent history is Cohen v. Cowles Media Co., 501 U.S. 663 (1991). It was the decision of this case that many other recent cases have used for the basis of their rulings. Justice White delivered the opinion of the Court that stated that the First Amendment does not prohibit the recovery of damages for a newspaper's breach of promise, confidentiality, in exchange for information. In this case, Dan Cohen was an active Republican with the 1982 Wheelock Whitney campaign in Minneapolis, MN.

He went to the Minneapolis Star and the Tribune to offer court documents on Marlene Johnson, Democratic Candidate for Lieutenant Governor for the forthcoming campaign. Cohen clearly stated that he would not provide the information to the reporters unless he was given a promise of confidentiality. Although the reporters promised anonymity, they later published his name when they reported on Johnson's court records. Johnson was charged in 1969 with three counts of unlawful assembly and a 1970 petit theft. When the reporters interviewed Johnson, they found that the assembly charges were due to participation in protest over alleged failures to hire minority workers on municipal construction projects and the charges were dropped.

The petit theft conviction stemmed from when she left a store without paying for $6 of sewing materials, and later vacated when it was determined that Johnson was emotionally distraught during that time. In their stories, both papers identified Cohen as the source of the court records, indicated his connection to the Whitney campaign, and included denials by Whitney campaign officials of any role in the matter. The same day the stories appeared, Cohen was fired by his employer. Cohen sued the publishers of the Pioneer Press and Star Tribune, in Minnesota State court, asserting fraudulent misrepresentation and breach of contract. The trial court rejected respondents' argument that the First Amendment barred Cohen's lawsuit. A jury returned a verdict in Cohen's favor, awarding him $200,000 in compensatory damages and $500,000 in punitive damages.

It might seem natural for the freedom of the press guarantee to get so much attention from newspapers, magazines, and radio and television news and opinion programs. After all, today those institutions are "the press," but historically the term "press" in the First Amendment does not mean the journalism business. Referring to the news media as "the press" is just a piece of modern slang. The term "press" in the First Amendment was meant to refer to the printing press, a symbol for publication of printed material of all kinds.

The phrase "freedom of the press" was the Framers' way of referring to the freedom to publish. So many editorials and opinion pieces by journalists and journalism professors which claim to discuss freedom of the press technically get the idea wrong about what "the press" is. By the historical meaning of the phrase, they are not correct. Modern interpretation by the Supreme Court hold the generally applicable laws of the First Amendment simply because their enforcement against the press has contingent effects on the Court's ability to gather and report the news. The First Amendment does not relieve newspaper reporters of the obligations shared by all citizens. For instance, to respond to a subpoena and answer question relevant to an investigation, even if they might be required to reveal a confidential source. Just as in the case of Vanessa Leggett in July 2001. Leggett, a novice writer was found in contempt of court for not revealing her sources in her investigation of the 1997 murder of Doris Angleton, Texas socialite wife of millionaire bookie Robert Angleton.

The courts believed that her notes would shed light on the shooting and the jailhouse suicide of the suspect. When she refused to name her source and ignored subpoenas, she was held in contempt of court and jailed in August 2001. The federal government has taken the ridiculous stance that Vanessa is not entitled to First Amendment rights guaranteeing freedom of the press because she is a freelance journalist rather than a salaried employee. Leggett was a legal assistant, private eye and part-time English and Criminal Justice teacher, and was beginning to write books. Several requests to release Leggett from custody because she was neither a "flight risk" nor a "danger to society or herself" went unheeded. Her only crime was to protect her confidential sources under the traditions of free press. Leggett was released in January 2002. 168 days and one day after her attorney filed a motion to the Supreme Court to hear her case citing that "a journalist languishing in jail was a sure sign of an authoritarian regime (government).

Each Framer of the Constitution had their own idea of religious freedom. From their own words, there is an assumption that the government should not punish any individual for their religious beliefs, thoughts, or actions nor shall the government forcibly infuse a religion upon the people. The intent of the framers can be interpreted by every historian as differing in one aspect or another. Due to the prohibition against government regulation or endorsement of religion, diverse faiths have flourished and thrived in America since the founding of the republic. Free from government control and assistance, religious values, literature, traditions and holidays permeate the lives of our citizens and, in their diverse ways, form an integral part of our national culture. By maintaining the wall separating church and state, we can guarantee the continued vitality of religion in American life. Therefore, many people fight for their religious freedom that they feel has been violated in some form.

One recent such instance was in Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001). In 2000 Virginia enacted a statute requiring public schools to begin each day with a moment of silence, during which a student, "in the exercise of his or her individual choice," could "meditate, pray, or engage in any other silent activity . . .." In a 2-1 split, the court held that the Commonwealth's statute did not offend the First Amendment's Establishment Clause. Opponents say Virginia's minute-of-silence law flies in the face of previous high court rulings on separation of church and state.

Supporters say children are not forced to pray - they can stare out the window if they choose. The decision of the court means the state's morning minute of silence will remain in force, and opponents have no immediate avenue to challenge it. Virginia Attorney General Randolph A. Beales stated, "It guarantees Virginia's schoolchildren will continue to have a minute each day to reflect on their studies, to collect their thoughts or, if they so choose, to bow their heads and pray." The court further held that Virginia's moment-of-silence statute passed requirements under the familiar three-prong test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971).

The first test was that the enactment had a number of "valid secular purposes," including instrumental classroom discipline and encouraging students to reflect. Significantly, the court stated that accommodating religious doubts itself can be a valid non-religious purpose. In addition, the court concluded that, even if accommodation were not a non-religious objective, Virginia's law nevertheless survived Lemon's purpose "prong" because Lemon requires only that "there be a secular purpose," not that a statute have only a secular purpose. Id. at 277 (emphasis added). Due to the fact that the moment-of-silence law had a valid non-religious purpose, the fact that it also may have had a religious objective was of no consequence. Lemon's other two prongs received somewhat less attention. The majority denied that the statute's "primary effect" was to advance or hinder religion. Specifically, the court doubted that non-praying students would assume, from the fact that their classmates were praying, that Virginia endorses prayer. The plaintiffs in this case were afraid of -"psychological coercion" to the non-praying" students; this was "speculative at best," (id. at 278). This could not be used as a defense in court since a factual record to support their claim had not established. Thirdly, the majority concluded that the moment-of-silence law was of little risk that the state would become "excessively entangled" with religion. It called on teachers to do no more than inform their students that silent prayer was one of several possible options.

The meaning of the Second Amendment depends upon whom you talk to. The National Rifle Association insists that the Amendment guarantees the right of individuals to possess and carry a wide variety of firearms. Advocates of gun control contend that the Amendment was only meant to guarantee to States the right to operate militias or armies. Again, there are several interpretations of what the Framers meant when they penned the Amendment into the Constitution. Some believe that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias. The second, and much broader opinion, is that the Amendment guarantees no rights to individuals at all. Yet, there is still one question that is of concern: If it does create a right of individuals to own firearms, is the right enforceable against state regulation as well as against federal regulation?

There was one such case in 1995 of state regulations versus federal regulations. In Bieder v. United States, 662 A.2d 185 (D.C. App. 1995), Bieder was prosecuted for having an unregistered gun in D.C.; having unregistered ammunition in D.C.; and carrying a firearm concealed. He was visiting the Capital Building in Washington DC, and at security he gave the guard his fanny pack and handgun, telling him he had a NYC permit to carry a concealed weapon. He was taken into custody and prosecuted for was moving the gun through D.C. (in his trunk and unloaded at that time) in compliance with 18 U.S.C. sec 926A, the preemption of local bans while traveling part of the FOPA. The trial court declined to let him present his defense of carrying a handgun with a NY CCW Permit. Therefore he appealed. When the case was heard by the Appeals Court, they reversed the charges. During his appeal Bieder was able to contend that that the trial judge erred by declining to inform the jury of the Federal Firearms Owners' Protection Act (FOPA), (18 U.S.C. sections 921 et seq). This presented Bieder basis for his defense of the case. Based on FOPA, the Appeals Court believed that he should have been able to present his defense and concluded that they agreed with Bieder's defense and dropped the charges against him.

The Constitution is many things to many people. The Constitution is short, therefore it cannot, and does not, attempt to cover every event. When it seems that it is clear, suddenly there is conflicting rights, conflicting region of power. When disputes arise, it comes time for people, and most importantly the judges of the Judicial Branch, to interpret the Constitution. The U.S. Constitution, however, has been termed a Living Constitution, in part because it grows and adapts to internal and external pressures, changing from one era and generation to the next. When a new situation arises, or even a new variation on an old situation, the Constitution is often looked to for guidance. It is at this point that the various interpretations of the Constitution come into play. There is no one right way to interpret the Constitution, and people often do not always stick to one interpretation.

References

http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/cases1.html

http://www.efn.org/~bsharvy/rsharvy/press.html

http://www.fdungan.com/freedom.htm

http://www.fed-soc.org/Publications/practicegroupnewsletters/PG%20Links/brownvgilmore.htm

http://www.firstamendmentcenter.org/about.aspx?item=about_firstamd

http://www.firstamendmentcenter.org/Speech/overview.aspx

http://www.firstamendmentcenter.org/rel_liberty/overview.aspx

http://www.journalism.wisc.edu/~drechsel/j559/readings/cohen.html

http://www.pa-newspaper.org/legal/Legal%20Handbook/confidential_sources.htm

http://www.usa2076.com/2armed/second.htm