San Diego Criminal Lawyers Blog
In the saga of the Bundy wildlife refuge occupation, Federal prosecutors in Oregon filed a trial brief outlining their case against the occupiers. Prosecutors noted that that evidence teams recovered more than 20,000 rounds of ammunition. Defendants have claimed they were exercising their first amendment rights, but government prosecutors have rejected these defenses. They note that “Taking a gun into a government office is not First Amendment protected activity.”
The Rights Enumerated in the Bill of Rights are Not Unlimited
The first 10 amendments in the U.S. Constitution is also called the “Bill of Rights.” But constitutional rights are not absolute, and do not automatically have a legal defense for a crime by simply citing a constitutional right. In fact there are plenty of restrictions that have been imposed on other rights by the Supreme Court.
The First Amendment prohibits the impediment of the free exercise of religion, speech, press, the right to peaceably assemble or the petitioning for a governmental redress of grievances. Specifically, it says, “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.”
However, the Supreme Court over the years has placed many restrictions on these rights. You are free to exercise your religion for example, but not if it involves human and animal sacrifice. One’s free speech may also not be protected if it falsely defames someone’s reputation, incites violence, threatens someone, reveals a trade or military secret and threatens national security, or if it is deemed to be obscene. When, where, and how speech is expressed is also restricted. The government has put limitations on who can speak, such as students, prisoners, and government employees. It can also restrict your speech if you are blocking a public throughway (ie. street) while doing it. While determining limitations on speech, courts must carefully weigh the value of protecting speech against the countervailing public interests, including public safety.
The second amendment has been mostly invoked in the gun-rights debate as the “right to bear arms” and has been interpreted to include for the purposes of self defense. It states “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.”
While the NRA would have you believe otherwise, the second amendment is also limited. You cannot point a loaded gun at someone or use it to threaten them, for example. The case of District of Columbia v. Heller in 2008 specified that we have a constitutional right to use firearms for self defense in our private homes. But the opinion did not suggest that right extended to other areas. Continue reading