What is Bill of Rights?
The Bill of Rights comprises the first ten amendments to the U.S. Constitution:
- First Amendment: protects freedom of speech, assembly, the press, and religion. It also guarantees the right to petition the government, and it bars the federal government from establishing a state religion.
- Second Amendment: guarantees that, “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 Supreme Court has held that the Second Amendment protects both a state’s right to a militia and an individual’s right to own firearms. However, the right to own firearms is subject to reasonable regulations that have traditionally been used throughout American history, such as making it more difficult for felons and the mentally ill to access guns, or prohibiting the use of “dangerous and unusual weapons.” See District of Columbia v. Heller, 554 U.S. 570, 626-627 (2008).
- Third Amendment: prevents the government from forcing citizens to quarter soldiers in their homes, except during a time of war.
- Fourth Amendment: protects people from unreasonable searches and seizures by law enforcement. Courts have interpreted this to mean that people and their property can not be searched or seized without a warrant based on probable cause. This is subject to certain exceptions where warrantless searches or seizures may be permitted.
Exceptions to the warrant requirement include exigent circumstances, plain view, and hot pursuit.
- Fifth Amendment: guarantees due process of law, the right of people to be indicted by a grand jury for federal felonies, protection against double jeopardy and self-incrimination, and compensation for government takings of private property.
In the 1966 decision Miranda v. Arizona, the Supreme Court held that law enforcement must read people their Fifth Amendment rights before subjecting them to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436-437 (1966).
- Sixth Amendment: assures key rights during the trial process for criminal cases.
Under the Sixth Amendment, all criminal defendants have a right to an attorney and a speedy public trial. The right to an attorney attaches upon the commencement of formal judicial proceedings, such as when charges are filed against the defendant. Criminal defendants must be given notice of the charges and proceedings against them, they have a right to be tried by an impartial jury, and they are entitled to the opportunity to confront their accusers. They may also subpoena witnesses to support their defense.
- Seventh Amendment: protects the right to a jury trial in civil cases involving an amount in controversy in excess of $20. After a jury makes a finding of fact at trial, higher courts may not overrule those findings of fact on appeal.
- Eighth Amendment: bars cruel and unusual punishment, excessive bail, and excessive fines.
- Ninth Amendment: states that a right isn’t denied to the people just because that right isn’t mentioned in the Constitution.
- Tenth Amendment: says that rights that aren’t mentioned in the Constitution belong to the states or the people.
Example (First Amendment)
In 1798, Congress passed the Sedition Act, which made it illegal to criticize the federal government. This bill violated the First Amendment because it restricted free speech. Although the Supreme Court has ruled that some forms of speech may be restricted, such as incitement to violence, speech falls under very strict constitutional protections. To restrict speech, the government must pass the strict scrutiny test to show that a proposed restriction of speech is narrowly tailored to further a compelling government interest. The restriction must also be the least restrictive means necessary of furthering that compelling government interest.
Example (Second Amendment)
Congress passes a law banning all state militias. This is unconstitutional, as the Second Amendment guarantees the right of every state to maintain a militia.
Example (Third Amendment)
The president signs an executive order forcing Americans to quarter soldiers in their homes during peacetime. This order violates the Third Amendment, as the federal government may not force people to quarter soldiers in peacetime, nor can the president do so without an act of Congress.
Example (Fourth Amendment)
A police officer barges into a person’s home, grabs them, interrogates them, then arrests them. Based on the interrogation, the person is charged with murder. This violates the Fourth Amendment; law enforcement may not enter a person’s home without a search warrant, nor may they seize or arrest someone without a warrant.
Example (Fifth Amendment)
David is arrested and brought to a police station. The police officers never read David his Miranda rights. They interrogate David, who admits to committing the crime. The officers have violated the Fifth Amendment because they never read David his Miranda rights. (As noted above, the landmark Supreme Court ruling in Miranda v. Arizona, 384 U.S. 436 (1966) required law enforcement henceforth to inform a suspect of their rights before interrogating them. Otherwise, any statements made by the suspect are inadmissible in a court of law.)
Example (Sixth Amendment)
After Zoe gets into a drunken brawl at a bar, the police arrest her and read her Miranda rights. They take Zoe to the police station and interrogate her without her lawyer present. Although the lawyer tried to call Zoe, the police don’t tell her. Zoe waives her Miranda rights and incriminates herself, leading to her being charged with assault with a deadly weapon. Zoe challenges the admission of her testimony on the basis that her Sixth Amendment rights were violated, since her lawyer wasn’t present during the interrogation. However, the Sixth Amendment right to counsel only attaches following the commencement of formal judicial proceedings, which didn’t occur until Zoe was formally charged. The police also didn’t have an obligation to tell Zoe that her lawyer was trying to reach her. Accordingly, Zoe’s Sixth Amendment rights weren’t violated.
Example (Seventh Amendment)
After a jury makes findings of fact at trial, an appeals court reverses the jury’s findings. Unless no reasonable jury could have made those findings of fact, the court violated the Seventh Amendment when it reversed the jury’s findings.
Example (Eighth Amendment)
After a two-year search, the police apprehend a serial killer. Outraged by the killer’s horrific crimes, police detectives take him to a nearby barn and beat the killer with a crowbar. This violates the Eighth Amendment; while the killer’s crimes are indeed evil, law enforcement isn’t permitted to torture people in their custody, no matter how appalling their crimes are. It’s the job of the courts to punish defendants only after they’ve been tried for their crimes.
Example (Ninth Amendment)
The 1965 decision Griswold v. Connecticut, the U.S. Supreme Court held that alongside other key amendments, the Ninth Amendment creates an implied right to privacy which protects a married couple’s right to use contraceptives. Furthermore, courts have stated, “[t]he Ninth Amendment is not an independent source of individual rights; rather, it provides a rule of construction that we apply in certain cases.” Jenkins v. Comm'r, 483 F.3d 90, 92 (2d Cir. 2007).
Example (Tenth Amendment)
Congress passes a law that requires state agencies to enforce a federal regulatory program. This is unconstitutional under the Tenth Amendment as it violates the anti-commandeering principle, which holds that the federal government may not commandeer state agencies to enforce federal policies.
Case Examples
- Applicability to Native American Tribes: Courts have found that “the Bill of Rights and the Fourteenth Amendment do not apply directly to Indian tribes.” See United States v. Bird, 287 F.3d 709 (8th Cir. 2002). This means that if a person is prosecuted by a Native American tribe on tribal lands, they are not automatically entitled to counsel or other due process protections under the Constitution. Instead, each tribe is governed by its own constitution.
- Applicability to state governments: The Supreme Court has long held that “the Fourteenth Amendment's Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States.” See Timbs v. Indiana, 586 U.S. 146, 150, 139 S. Ct. 682, 687, 203 L. Ed. 2d 11 (2019). A notable exception is the Fifth Amendment right of a suspect to be indicted by a grand jury in federal felony cases. As of this writing, the Supreme Court has not required state or local governments to guarantee this right in their own felony trials. Therefore, a state may still use other methods (such as a preliminary hearing before a judge) to determine whether there is probable cause for an indictment.
Key facts:
The Bill of Rights wasn’t originally part of the U.S. Constitution. It was only added later through constitutional amendments. Federalists, who supported the Constitution, didn’t see the need for a Bill of Rights; they thought the Constitution already protected Americans’ rights and liberties. Anti-Federalists, who opposed the Constitution, believed that a Bill of Rights was necessary to defend freedoms not specifically provided for in the Constitution. In order to convince Anti-Federalists to support the Constitution, Federalists promised to add a Bill of Rights after the Constitution was ratified. Based on these guarantees, the Constitution was ratified in 1788. After George Washington took office as the first president in 1789, Congressman James Madison, one of the Constitution’s key authors and defenders, led the charge to pass the Bill of Rights in Congress. The ten amendments that make up the Bill of Rights were ratified in 1791. Since 1791, seventeen additional amendments have been added to the Constitution. The last amendment to be ratified was the Twenty-Seventh, in 1992.
Further Reading
For more detailed information, see our related Constitutional Law terms:
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