3.6 - Amendments: Balancing Individual Freedom with Public Order and Safety

The Spectrum of Liberty vs. Order

Balancing the Eighth Amendment (Cruel and Unusual Punishment)

• In 1972, the Court paused the death penalty, finding it was being applied arbitrarily and unevenly, especially by race, and told states to create objective standards.

• Four years later, the Court reinstated it but banned automatic or mandatory death sentences for any specific crime.

• More recent limits:
• Can't be applied to people with intellectual disabilities (2002). States can't use a strict IQ cutoff like 70 by itself to decide who counts (2014).
• Can't be applied to crimes committed by minors.
• As of 2008, can't be applied to a crime against a person where the victim wasn't killed, like the rape of a child. The Court left open crimes against the nation itself, like treason.

• Bottom line: despite these limits, the death penalty itself isn't currently considered a violation of the Eighth Amendment.

Balancing the Fourth Amendment (Digital Searches)

• Security argument: after the 9/11 attacks, the Patriot Act (2001) expanded the government's power to use wiretaps and collect digital metadata (records of who you contacted, when, and from where, but not what you said) to help prevent terrorism. Supporters argue if you're not a terrorist, you have nothing to worry about.

• Liberty argument: civil libertarians argue these searches are unreasonable violations of citizens' rights, and that they often unfairly target and profile specific groups.

• Limits on bulk collection: in 2013, Edward Snowden revealed that the National Security Agency (NSA) had been collecting the phone records of millions of Americans in bulk. Congress responded with the USA Freedom Act (2015), which ended that bulk collection (details in Topic 3.8).

Balancing the Second Amendment (Gun Control)

• The Court has established an individual right to bear arms, unconnected to militia service (D.C. v. Heller, 2008), and applied it to the states (McDonald v. Chicago, 2010).

• The live question now is what limits can be placed on that right, like whether certain weapons, ammunition, or modifications can be banned.

• U.S. v. Lopez (1995): Congress tried to make schools safer with the Gun-Free School Zones Act, but the Court ruled 5-4 that this was beyond Congress's commerce power. Rules like that are mostly up to the states.

• Recent cases (not required): in NYSRPA v. Bruen (2022), the Court said the right also covers carrying a handgun in public for self-defense, and that gun laws have to fit the nation's historical tradition of gun regulation. In United States v. Rahimi (2024), it upheld a federal law that bars people under certain domestic violence restraining orders from having guns. Both show the Court still drawing the line between gun rights and public safety.

• Gun control side: argues restrictions make the country safer.

• Gun rights side: argues the government shouldn't be infringing on an individual right.

Balancing the First Amendment (Speech in Schools)

• Liberty side: students keep their free speech rights at school, including symbolic political speech like the black armbands they wore to protest the Vietnam War.

• Order side: schools need discipline to run, so they can limit student speech that would substantially disrupt the school.

• Where the Court landed: 7-2 for the students, since the armbands caused no real disruption. A school's vague fear of trouble isn't enough to limit speech.

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