Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P7 ppt

A sample application for a search warrant. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. APPLICATION FOR A SEARCH WARRANT I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason to believe that there is now concealed on the following person or property located in the ____________________________ _ District of __________________________________ (identify the person or describe property to be searched and give its location): The person or property to be searched, described above, is believed to conceal (identify the person or describe the property to be seized): The basis for the search under Fed. R. Crim. P. 41(c) is (check one or more): ᮀ evidence of a crime; ᮀ contraband, fruits of crime, or other items illegally possessed; ᮀ property designed for use, intended for use, or used in committing a crime; ᮀ a person to be arrested or a person who is unlawfully restrained. The search is related to a violation of ______________________ U.S.C. § ______________________, and the application is based on these facts: ᮀ Continued on the attached sheet. ᮀ Delayed notice of _______ days (give exact ending date if more than 30 days: ____________________________) is requested under 18 U.S.C. § 3103a, the basis of which is set forth on the attached sheet. _________________________________________ Applicant’s signature _________________________________________ Printed name and title Sworn to before me and signed in my presence. Date: __________________________ _________________________________________ Judge’s signature City and state: ______________________________________ _________________________________________ Printed name and title Application for Search Warrant UNITED STATES DISTRICT COURT for the In the Matter of the Search of (Briefly describe the property to be searched or identify the person by name and address) Case No. AO 106 (Rev. 01/09) Application for a Search Warrant GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 48 SEARCH WARRANT an officer has either personal knowledge or trustworthy HEARSAY from an informant or witness. The officer must fill out an AFFIDAVIT stating with particularity the person to be seized and searched, the area to be searched, and the objects sought. The warrant need not specify the manner in which the search will be executed. The officer must sign the affidavit containing the supporting information establishing the grounds for the warrant. By signing the affidavit, the officer swears that the statements in the affidavit are true to the best of his or her knowledge. A police officer who lies when obtaining a warrant may be held personally liable to the searched person. According to the Supreme Court’s ruling in Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987), however, a police officer is not personally liable for a wrongful search if a reasonable officer could have believed that the warrantless search would be lawful in light of clearly established law and the information the officer possessed at the time. Following the SEPTEMBER 11TH ATTACKS in 2001, the United States government sought to expand the means by which law enforcement personnel could investigate potential terrorist activities. The USA PATRIOT ACT OF 2001 (Pub. L. No. 107-56, 115 Stat. 272) created and expanded a number of exceptions to the traditional search warrant requirements. Although a person subject to a search warrant is ordinarily entitled to notice that the warrant was issued, the USA PATRIOT ACT allowed magistrates to issue so-called “sneak and peak” warrants, which do not require police to notify the person subject to the search. Moreover, the act expanded the abilities of officers to install “roving” wiretaps of telephones and other communications devices used by individual suspects without naming the specific telephone carrier in the warrant. The act also expanded police officers’ abilities to search stored email and voicemail messages. Although the provisions of the USA PATRIOT Act were purportedly designed to enhance the ability of law enforcement agencies to prevent terrorist activities against the United States, many of these provisions could be applied to U.S. citizens who are not engaged in such activities. Several commentators and organiza- tions, such as the AMERICAN CIVIL LIBERTIES UNION, criticized the act because of its detrimental impact on civil l iberties. Supporters of the act countered that the attacks on September 11, 2001, could have been prevented if law enforcement had available to it some of the tools provided under the new law. FURTHER READINGS Bloom, Robert M. 2003. Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger. Dash, Samuel. 2004. The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft. Rutgers, N.J.: Rutgers Univ. Press. Long, Carolyn. 2006. Mapp V. Ohio: Guarding against Unreasonable Searches and Seizures. Lawrence: Univ. Press of Kansas. Pitowsky, Robert A. 2002. “An Overview of the Law of Electronic Surveillance Post September 11, 2001.” Law Library Journal (fall). Rotenberg, Marc. 2002. “Privacy and Secrecy after Septem- ber 11.” Minnesota Law Review (June). CROSS REFERENCES Automobile Searches; Search and Seizure. SEASONABLE Within a reasonable time; timely. The term seasonable is usually used in connection with the performance of contractual obligations that must be completed “season- ably.” The facts and circumstances of each case define a reasonable period of time and what would be considered “unseasonable.” SEAT BELTS A restraining device used to secure passengers in motorized vehicles. Congress first passed seat-belt legislation in 1966. By the 1990s increased measures w ere being taken to enforce the laws. Under 23 U.S.C. § 402, a portion of federal highway funds may be withheld from states if they do not have an approved highway safety program to reduce the number and severity of traffic accidents. One of the measures a state must include in its highway safety program is a provision that encourages drivers and passengers to use seat belts. In 2003 the GEORGE W. BUSH administration proposed incentives, which would amount to $100 million in highway funding, for states to enact mandatory seat-belt laws. According to the U.S. TRANSPORTATION DEPARTMENT, “Every 1 percent increase in nationwide safety belt use means a savings of about 250 lives.” In states that require the use of seat belts by all drivers and front-seat pas sengers, the failure GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEAT BELTS 49 to use a seat belt is a violation that carries a fine. In most of these states, police officers do not stop persons in vehicles for failing to use a seat belt. This is called a “secondary seat-belt law.” In West Virginia, for example, Section 17C-15- 49 of West Virginia Code states, “Enforce- ment shall be accomplished only as a secondary action when a driver of a passenger vehicle has been detained for PROBABLE CAUSE of violating another section of this code.” In other words, once a vehicle is stopped for any other infraction, the driver may be ticketed if the driver or a front-seat passenger is not belted. In other states, such as Washingto n and Delaware, for example, a police officer may pull over a car if he or she suspects a driver or a passenger of not using a seat belt. This is a called a “primary seat-belt law.” The fine for violating a manda- tory seat-belt law usually is minimal; in Delaware, the fine is $25. As of 2009 New Hampshire is the only state that does not have an adu lt seat-belt require- ment (N.H. Rev. Stat. Ann. § 265: 107-a). Motor vehicle passengers under the age of 12, however, must wear a seat belt. The New Hampshire Department of Safety administers programs that increase public awareness of the importance of seat belts, and roadside signs placed throughout the state remind drivers that buckling up is mandatory for children and sound advice for all persons. During the first decade of the 2000s, several proposals were introduced that would require adults to wear seat belts. These proposals were met with fierce resistance, however. All states have some type of mandatory seat- belt laws for children. The laws, however, vary by state. They also vary depending on the age, weight, and height of the child. For example, in Delaware, children who are under the age of 12, or under 65 inches tall, must sit in the back seat of a car if there are active air bags in the front passenger seat. Fines for violating child seat-belt laws vary by state. In Delaware, the fine for violating the law is $28.75. In an effort to improve child-restraint safety, Congress passed Anton’sLaw(H.R.5504)in November 2002. The law was named for four- year-old Anton Skeen, who was thrown from a car because the adult seat belt he was wearing was too large to hold him. The legislation, which was signed into law in December 2002, requires improved testing standards for child booster seats and also mandates that automakers upgrade their current seat-belt features. In addition, the legislation requires that the National Highway Traffic Safety Administration (NHTSA) con- struct test dummies that can be used in simulated car crashes to determine the effective- ness of seat belts for children. In May 2003 federal and state agencies launched a nationwide effort to mobilize support of seat-belt use. The campaign, called “Click It or Ticket,” coincided with the Memorial Day holiday, traditionally one of the busiest for automobile traffic. Some 12,000 law enforcement agencies across the country set up seat-belt checkpoints between May 23 and June 1 to pull over unbuckled drivers and write them tickets. The event was widely publicized in the media to fully enforce the message that during the campaign there would be a zero- tolerance enforcement of safety-belt laws. A major focus was to educate young drivers about the importance of wearing seat belts. Despite efforts by Congress to encourage states to bolster their seat belt laws, some states have refused. Massachusetts typically has the lowest compliance rate in the United States, Seat Belt Use, in 2007 a White Black Other races Youth (8–15) Young Adult (16–24) Adult (25–69) Senior (70 and over) Percentage who use seat belts Female Male 0 20406080100 a Statistics represent safety belt use in passenger vehicles. 83% 75% 88% 82% 77% 83% 88% 86% 79% SOURCE: U.S. Department of Transportation, National Highway Traffic Safety Administration, National Center for Statistics and Analysis, Seat Belt Use in 2007—Demographic Results. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 50 SEAT BELTS with more than 40 percent of drivers refusing to wear a seat belt. Nevertheless, the state’s legislature in 2009 refused about $14 million in federal funds in exchange for adopting a new seat belt law. The failure of a driver or front-seat passenger to wear a seat belt can have consequences in personal injury lawsuits. Under court decisions and statutes in some states, the plaintiff’sfailure to wear a seat belt can decrease his or her recovery for injuries in a car accident. In other states, cases and statutes hold that the failure to wear a seat belt may not be used in court as a mitigating factor in figuring the plaintiff’sdamages. In states that limit the recovery of unbelted plaintiffs, courts employ various methods to mitigate damages. Under the causation ap- proach, a plaintiff may not recover damages for injuries caused by the failure to wear a seat belt. Some states require that the plaintiff prove that the accident injuries would have occurred even if the plaintiff had worn a seat belt. Other states hol d that the defendant must prove that the plaintiff’s injuries would not have occurred had the plaintiff worn a seat belt. Identifying and apportioning the various factors contribut- ing to the plaintiff’s injuries is a difficult task. Personal injury cases involving unbelted plain- tiffs in these states rely heavily on medical EXPERT TESTIMONY. Under the plaintiff misconduct approach, the court examines whether the plaintiff was at fault in failing to wear a seat belt. If the plaintiff should have been wearing a seat belt under the state seat-belt laws, the failure to wear the belt may mitigate the plaintiff’s damages or completely bar any recovery. FURTHER READINGS Green, Marc. 2008. Forensic Vision with Application to Highway Safety. 3d ed. Tucson, Ariz.: Lawyers and Judges Pub. Co. LeBel, Paul A. 1991. “Reducing the Recovery of Avoidable ‘Seat-belt Damages’: A Cure for the Defects of Waterson v. General Motors Corporation.” Seton Hall Law Review 22. Parker, Jocelyn. 2003. “Click It or Ticket: State, Nation Step Up Seat Belt Campaign.” Detroit Free Press (May 24). Queary, Paul. 2003. “Seat Belt Law Comes under Fire.” Seattle Post-Intelligencer (August 4). Schorsch, Kristen. 2002. “Senator Sponsors Seat Belt Legislation.” Daily Illini (November 22). CROSS REFERENCES Automobiles; Mitigation of Damages; Tort Law. SEC An abbreviation for the SECURITIES AND EXCHANGE COMMISSION . SECESSION The act of withdrawing from membership in a group. Secession occurs when persons in a country or state declare their independence from the ruling government. When a dissatisfied group secedes, it creates its own form of government in place of the former ruling government. Secessions are serious maneuvers that lead to, or arise from, military conflict. A secession can affect international relation- ships as well as the civil peace of the nation from which a group secedes. Most countries consider secession by a town, city, province, or other body to be a criminal offense that warrants retaliation using force. Because the primary mission of most governments is to maximize the comfort and wealth of citizens, nations jealously guard the land and wealth that they have amassed. In rare cases, a government may recognize the indepen- dence of a seceding state. This recognition may occur when other countries support the indepen- dence of the seceding state. However, for most countries, the involuntary loss of land and wealth is unthinkable. Most countries have laws that punish persons who secede or attempt to secede. The United States has no specific law on secession, but the federal government and state govern- ments maintain laws that punish SEDITION and other forms of insurrection. On the federal level, for example, chapter 115 of title 18 of the U.S. CODE ANNOTATED identifies TREASON, rebel- lion, insurrection, seditious CONSPIRACY, and advocation of the overthrow of the government as criminal offenses punishable by several years of imprisonment and thousands of dollars in fines. These are the types of crimes that can be charged against persons who attempt to secede from the United States. The U.S. CIVIL WAR was the result of the single most ambitious secession in the history of the United States. In February 1861, South Carolina seceded from the Union, and Virginia, North Carolina, Georgia, Florida, Alabama, Missis- sippi, Texas, Arkansas, and Tennessee followed suit shortly thereafter. These states seceded because they objected to attempts by the federal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECESSION 51 government to abolish the enslavement of black people. The mass secession led to four years of civil war and the deaths of hundreds of thousands of people. The seceding states established their own government, called the CONFEDERATE STATES OF AMERICA , and fought the U.S. military forces with their own army. When the Confederate forces were defeated in April 1865, the seceding states rejoined the United States. In modern times, there has been no popular movement for state secession, although there have been largely tongue-in-cheek calls for large cities, such as New York City, to “secede” from their states and become in dependent states in their own right. CROSS REFERENCE U.S. Civil War. SECOND AMENDMENT The Second Amendment to the U.S. Constitution reads: 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 subject matter and unusual phrasing of this amendment led to much controversy and analysis, especially in the latter half of the twentieth century. The SUPREME COURT finally issued a seminal case on the meaning of the Second Amendment when the Court decided DISTRICT OF COLUMBIA V. HELLER, 554 U.S. ___, 128 S. Ct. 2783 , 171 L. Ed. 2d 637 (2008). History of the Second Amendment Firearms played an important part in the colonization of America. In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans. Around the time of the Revolu- tionary War, male citizens were required to own firearms for fighting against the British forces. Firearms were also used in hunting. In June 1776, one month before the signing of the DECLARATION OF INDEPENDENCE, Virginia became the first colony to adopt a state constitution. In this document, the state of Virginia pronounced that “a well regulated MILITIA, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State.” After the colonies declared their independence from England, other states bega n to include the right to bear arms in their constitution. Pennsylvania, for example, declared that the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power. The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied. Some states asserted that bearing arms was a “right” of the people, whereas others called it a “duty” of every able-bodied man in the defense of society. Pennsylvania was not alone in its express discouragement of a standing (professional) army. Many of the Framers of the U.S. Constitu- tion rejected s tanding armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense. According to Framers such as Elbridge Gerry of Massachusetts and GEORGE MASON of Virginia a standing army was susceptible to tyrannical use by a power- hungry government. At the first session of Congress in March 1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president. According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states. The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England. The precise wording of the amendment was changed two times before the U.S. Senate finally cast it in its present form. As with many of the amendments, the exact wording proved critical to its interpretation. In 1791 a majority of states ratified the BILL OF RIGHTS, which included the Second Amendment. In its final form, the amendment presented a challenge to interpreters. It was the only amendment with an opening clause that appeared to state its purpose. Ambiguous Meaning Legal scholars have long disagreed about the use of the comma following shall. Some have argued that it was intentional and that it w as intended GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 SECOND AMENDMENT to make militia the subject of the sentence. According to these theorists, the operative words of the amendment are “[a] well regulated Militia shall not be infringed.” Others have argued that the comma was a mistake and that the operative words of the sentence are “the right of the people to bear arms shall not be infringed.” Under this reading, the first part of the sentence is the rationale for the absolute, personal right of the people to own firearms. Indeed, the historical backdrop—highlighted by a general disdain for professional armies— would seem to support this theory. Some observers have argued further that the Second Amendment grants the right of insur- rection. According to these theorists, the Second Amendment was designed to allow citizens to rebel against the government. THOMAS JEFFERSON is quoted as saying that “a little rebellion every now and then is a good thing.” Early Supreme Court decisions defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately 100 persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, ASSAULT on two African American men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that deci- sion, the Supreme Court declared that “the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.” In Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10. On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser’s conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not uncon- stitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States,” and “states cannot prohibit the people from keeping and bearing arms.” Despite this generous language, the Court refused to incorporate the Second Amendment into the FOURTEENTH AMENDMENT.Underthefirst section of the Fourteenth Amendment, passed in 1868, states may not abridge the PRIVILEGES AND IMMUNITIES of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amend- ment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, Firearms Manufactured in the United States, in 2007 a Pistols Revolvers Rifles Shotguns Misc. firearms Total a Does not include production for the U.S. military, but does include firearms purchased by domestic law enforcement agencies. Also includes firearms manufactured for export. 1,216 391 1,476 644 131 3,859 0 1,000 2,000 3,000 4,000 5,000 Types of firearms Firearms produced (in thousands) SOURCE: U.S. Department of the Treasury, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), Annual Firearms Manufacturing and Export Report, 2007. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SECOND AMENDMENT 53 Private Militias P rivate militias are armed military groups that are composed of pri- vate citizens and not recognized by federal or state governments. Private militias have been formed by individuals in America since the colonial period. In fact, the Revolutionary War against England was fought in part by armies comprising not professional soldiers but ordinary male citizens. Approximately half the states main- tain laws regulating private militias. Generally, these laws prohibit the parad- ing and exercising of armed private militias in public, but do not forbid the formation of private militias. In Wyom- ing, however, state law forbids the very formation of private militias. Under section 19-1-106 of the Wyoming Sta- tutes, “No body of men other than the regularly organized national guard or the troops of the United States shall associate themselves together as a military com- pany or organization, or parade in public with arms without license of the gover- nor.” The Wyoming law also prohibits the public funding of private militias. Anyone convicted of violating the provi- sions of the law is subject to a fine of not more than $1,000, imprisonment of six months, or both, for each offense. In states that do not outlaw them, private militias are limited only by the criminal laws applicable to all of society. Thus, if an armed private militia seeks to parade and exercise in a public area, its members will be subject to arrest on a variety of laws, including disturbing-the- peace, firearms, or even riot statutes. Many private militias are driven by the insurrection theory of the Second Amendment. Under this view, the Sec- ond Amendment grants an uncondi- tional right to bear arms for self-defense and for rebellion against a tyrannical government—when a government turns oppressive, private citizens have a duty to “insurrect,” or take up arms against it. The U.S. Supreme Court has issued a qualified rejection of the insurrection theory. According to the Court in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), “[W]hatever theoretical merit there may be to the argument that there is a ‘right' to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.” Scho- lars have interpreted this to mean that as long as the government provides for free elections and trials by jury, private citizens have no right to take up arms against the government. Some people have disagreed with the Supreme Court's definition of tyranny. Many of these people label the state and federal governments as tyrannical based on issues such as taxes and government regulations. Others cite government- sponsored racial and ethnic integration as driving forces in their campaign against the federal and state govern- ments. Many of these critics have formed private militias designed to resist per- ceived government oppression. Some private militias have formed their own government. The legal pro- blems of these private militias are generally unrelated to military activities. Instead, any criminal charges usually arise from activities associated with their political beliefs. The Freemen of Mon- tana is one such militia. This group denied the legitimacy of the federal government and created its own town- ship called Justus. The Freemen estab- lished its own court system, posted bounties for the arrest of police officers and judges, and held seminars on how to challenge laws its members viewed as beyond the scope of the Constitution. According to neighbors, the group also established its own common-law court system and built its own jail for the imprisonment of trespassers and govern- ment workers, or “public hirelings. ” In the 1990s the Freemen came to the attention of federal prosecutors after members of the group allegedly wrote worthless checks and money orders to pay taxes and to defraud banks and credit card companies. One Freeman had also allegedly threatened a federal judge, and some had allegedly refused to pay taxes for at least a decade. In March 1996 law enforcement officials obtained warrants for the arrest of many of the Freemen. However, remembering the violence that occurred when officials attempted to serve arrest warrants on another armed group in Waco, Texas, in 1993 law enforcement authorities did not invade the Freemen's 960-acre ranch in Jordan, Montana. Although the Freemen constituted an armed challenge to all government authority, its beliefs and its military activities were not illegal, and most of its members were charged with nonvio- lent crimes, such as fraud and related conspiracy. Two men were also charged with threatening public officials. In addition, several Freemen faced charges of criminal syndicalism, which is the advocacy of violence for political goals. FURTHER READINGS Amar, Akhil Reed. 2002. “Second Thoughts.” Law and Contemporary Problems 65 (spring). Barry, Monica Sue. 1996. “Stockpiling Weapons: Can Private Militias Receive Protection under the First and Second Amendments?” Thomas Jefferson Law Review 18 (spring). Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms.” St. John's Journal of Legal Commentary 16 (winter). CROSS REFERENCE Dennis v. United States. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 SECOND AMENDMENT abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, “The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship.” The Presser opinion is best understood in its historical context. The Northern states and the federal government had just fought the Civil War against Southern militias unauthorized by the federal government. After this ordeal, the Supreme Court was in no mood to accept an expansive right to bear arms. At the same time, the Court was sensitive to the subject of federal encroachment on STATES’ RIGHTS. Several decades later, the Supreme Court ignored the contradictory language in Presser and cemented a limited reading of the Second Amendment. In United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), defendants Jack Miller and Frank Layton were charged in federal court with unlawful trans- portation of firearms in violation of certain sections of the National Firearms Act of June 26, 1934 (ch. 757, 48 Stat. 1236–1240 [26 U.S.C.A. § 1132 et seq.]). Specifically, Miller and Layton had transported shotguns with barrels less than 18 inches long, without the registra- tion required under the act. The district court dismissed the INDICTMENT, holding that the act violated the Second Amendment. The United States appealed. The Supreme Court reversed the decision and sent the case back to the trial court. The Supreme Court stated that the Second Amendment was fashioned “to assure the continuation and render possible the effectiveness of militia forces.” The Miller opinion confirmed the restrictive language of Presser and solidified a narrow reading of the Second Amendment. According to the Court in Miller, the Second Amendment does not guarantee the right to own a firearm unless the possession or use of the firearm has “a reasonable relationship to the preservation or efficiency of a well regulated militia. ” Since the 1990s, however, lower co urts have reconsidered the scope of this right. Courts have provided extensive analysis of both the history and the text of the amendment to determine how this amendment should apply. For exam- ple, the U.S. Court of Appeals for the Fifth Circuit, in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) determined that the right to bear arms was an individual right bestowed upon each citizen, rather than a collective right of the people through their states to maintain militias separate from the federal military. The Second Amendment also received more focus from scholars. The Heller Decision The case of District of Columbia v. Heller involved a challenge of the District of Colum- bia’s severe restrictions on the possession of handguns. Under the D.C. statu te, an applicant was required to register a handgun with the D.C. city police department, and in most instances, the registration was prohibited. The statute also generally prohibited a person from carrying a pistol without a license. For those with lawfully registered handguns, another statute required the owner to keep the firearm unloaded and disassembled or otherwise bound by a trigger lock. Six residents of the District of Columbia challenged the law. Four of the plaintiffs wanted to have guns in their homes to provide SELF- DEFENSE. Another PLAINTIFF wanted to keep a gun assembled in his home without a trigger lock. A final plaintiff, Dick Heller (the named plaintiff in the Supreme Court action), wanted to possess a gun both at home and in his position as a special police officer. In 2007 the U.S. Gun Ownership in 2008 Male Female Republican Democrat Independent 49% 36% 54% 34% 22 42% 0 1020304050 60 Type of gun owner Percentage who own a gun SOURCE: U.S. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SECOND AMENDMENT 55 Court of Appeals for the District of Columbia sparked a major debate when it ruled that the D.C. restrictions on handguns violated the Second Amendment. In a lengthy opinion by Judge Laurence H. Silberman, the court ruled that the Second Amendment provided an individual right and that the D.C. statute violated this i ndividual right. Silberman based his reasoning primarily on the text of the amendment itself. Parker v. Dist. of Columbia, 478 F.3d 370 (D.C. Cir. 2007). In a 5-4 decision, the Court affirmed the ruling of the D.C. Circuit. Justice Antonin Scalia’s majority opinion focused heavily on the text of the amendment itself. Scalia focused on two parts of the amendment, which he referred to as the “prefatory clause” and the “operative clause.” According to Scalia, the prefatory clause does not limit the operative clause grammati- cally, but rather the prefatory clause announces a purpose. According to Scalia, the amendment could be rephrased as Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. Scalia noted that the Second Amendment is one of three places in the Bill of Rights where the phrase “the right of the people” is used. The two other instances include the Assembly-and- Petition Clause of the FIRST AMENDMENT and the Search-and-Seizure Clause of the FOURTH AMEND- MENT . In each instance, Scalia noted, the phrase refers to an individual right, rather than a collective right. Moreover, Scalia noted that prior versions of the Second Amendment clearly referred to the right to bear arms as an individual right. Thus, the Court’s first major conclusion was that the Second Amendment indeed provides individual, rather than collective, rights. Based on this conclusion, the Court deter- mined that the D.C. handgun ban and the trigger-lock requirement both violated the Second Amendment. The total handgun ban effectively prohibits an entire class of “arms” that citizens use for lawful self-defense, accord- ing to the Court. Moreover, the majority determined that the trigger-lock requirement makes it impossible for citizens to use guns for self-defense, thus rendering this restriction to be unconstitutional as well. Many gun rights proponents, including the NATIONAL RIFLE ASSOCIATION, cheered the decision as a victory. Many commentators predicted that the decision would lead to many challenges, and in the first year after the decision in Heller, these predictions came true. As of January 2009, more than 60 lower courts had reviewed constitu- tional challenges of a variety of gun laws. However, none of these challenges was success- ful, suggesting that the Heller was not as wide- reaching as some gun rights advocates had hoped. FURTHER READINGS Becker, Edward R. 1997. “The Second Amendment and Other Federal Constitutional Rights of the Private Militia.” Montana Law Review 58 (winter). Bogus, Carl T., ed. 2000. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: New Press. Charles, Patrick J. 2009. The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court. Jefferson, N.C.: McFarland & Co. Doherty, Brian. 2008. Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment. Washington, D.C.: Cato Institute. Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts. Dunlap, Charles J., Jr. 1995. “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.” Tennessee Law Review 62 (spring). Halbrook, Stephen P. 2008. The Founders’ Second Amend- ment. Stanford, Cal.: Stanford University Press Hanson, Freya Ottem. 1998. The Second Amendment: The Right to Own Guns. Springfield, N.J.: Enslow. Hook, Donald D. 1992. Gun Control: The Continuing Debate. Washington, D.C.: Second Amendment Foun- dation. Hoppin, Jason. 2003. “Ninth Circuit Upholds Controversial Ruling on Second Amendment.” Legal Intelligencer (May 8). ———. 2003. “Second Amendment Fight Steals Show in Gun Ban Case: Panel Enters Fray over Individual Rights.” San Francisco Recorder (February 19). McAffee, Thomas B. 1997. “Constitutional Limits on Regulating Private Militia Groups.” Montana Law Review 58 (winter). Reed Amar, Akhil. 1992. “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101 (April). CROSS REFERENCES Gun Control; National Rifle Association. SECOND LOOK DOCTRINE In the law of future interests, a rule that provides that even tho ugh the validity of interests created by the exercise of a power of appointment is ordinarily measured from the date the power is created, not from its exercise, the facts existing on the date of its exercise can be considered in order to determine if the RULE AGAINST PERPETUITIES has been violated. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 56 SECOND LOOK DOCTRINE At COMMON LAW, the rule against perpetuities prescribed that no interest in property is valid unless it vests, if at all, not later than 21 years plus the period of gestation after some life or lives in being at the time of the creation of the interest. A property interest vests when it is given to a person in being and is not subject to a condition precedent (the occurrence of a designated event). This rule restricts a person’s power to control the ownership and possession of her property after her death and ensures the transferability of property. The second look doctrine has been applied to mitigate the harsh effect of the rule against perpetuities on a power of appointment— authority granted by one person by deed or will to another, the donee , to select a person or persons who are to receive property. For example, B was the life income benefi- ciary (one who profits from the act of another) of a trust and the donee of a special power over the succeeding remainder—the property that passes to another after the expiration of an intervening income interest. His father, F, who predeceased him, established the trust in his will. B exercised his power through his own will, directing that the income be paid after his death to his children for the life of the survivor and that, upon the death of his last surviving child, the corpus—the main body or principal of a trust—be paid to his grandchildren. At F’s death, B had two children, X and Y. No other children were born to B, and at his death, X and Y are still alive. B’s appointment is valid. The perpetuity period is measured from F’sdeath.Ifonlythe facts existing at F’s death could be considered, however, B’s appointment would partly fail because of the possibility that he might have another child after F’s death who would have children more than 21 years after the deaths of B, X, and Y. In considering the validity of B’s appointment, however, not just the facts existing when the perpetuity period commences to run on B’s appointment are considered. The facts existing at B’s death can be taken into account under the second look doctrine, which thereby saves B’s appointment. At B’s death, it is known that no additional children were born to him after F’s death. Thus B’s last surviving child will be either X or Y, both of whom were “in being” at F’sdeath and, therefore, constitute the measuring lives. The second look doctrine is a departure from the fundamental principle that only the facts in existence when the perpetuity period commences to run can be taken into account in determining validity. Until the appointment is made, the appointed interests cannot be liti- gated. No useful purpose, therefore, is served by invalidating appointed interests because of what might happen after the power is created, but which at the time of exercise can no longer happen. In some jurisdictions, this doctrine has been extended to gifts-in-default, which involve the expiration of the power, such as when the donee releases the power or dies without having exercised it. For example, B was the life income beneficiary of a trust and the donee of a power over the succeeding remainder interest. In default of appointment (that is, B fails to name anyone to receive the property after he dies), the income after B’s death was to be paid to his children for the life of the survivor, and on the death of B’s last surviving child, the corpus was to be paid to B’s grandchildren. B’s father, F, who predeceased him, created the trust in his will. At F’s death, B had two children, X and Y. B died without having additional children and without exercising his power. B was survived by X and Y. F ’s death marks the commencement of the running of the perpetuity period as to the gift- in-default. Nevertheless if a second look at the facts existing at B’s death is permissible, the gift- in-default is valid. The measuring lives are X and Y. If no second look is permissible, the remainder interest in favor of B’s grandchildren is invalid. As of F’s death, there was a possibility that B might have a child after F’s death, that such a child might have survived B, and that such child might have had a child, B’s grandchild, more than 21 years after the death of the survivor of B, X, and Y. A default clause creates property interests no different from other property interests except that they are subject to divestment upon the exercise of the power. If B had not been granted a power of appointment in the above example, the interests created by the default clause would clearly be judged on the basis of the facts existing when F died. No second look as of B’s death would be permissible, unless the jurisdic- tion had adopted the WAIT AND SEE DOCTRINE. Until the power of appointment expires, it cannot be known whether the gift-in-default of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECOND LOOK DOCTRINE 57 . sengers, the failure GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEAT BELTS 49 to use a seat belt is a violation that carries a fine. In most of these states, police officers do not stop. RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 50 SEAT BELTS with more than 40 percent of drivers refusing to wear a seat. federal GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECESSION 51 government to abolish the enslavement of black people. The mass secession led to four years of civil war and the deaths of hundreds