Criminal Law and the United States Constitution
The Commerce Clause may invalidate some federal (not state) criminal statutes. For example, in 1995, the U.S. Supreme Court in United States v. Lopez struck down the Gun Free School Zone Act because it was regulating intrastate non-economic activity.
But in 2005, the U.S. Supreme Court, in that case, Gonzales v. Raich, held that cultivation and consumption of medical marijuana entirely within the confines of the state of California qualified as “commerce … among the several states” based on the claim that intrastate use of medical pot “substantially affects” the interstate underground market for marijuana.
The First Amendment of the United States Constitution: “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.”
The first amendment asserts each individual’s right to freedom of religion, and freedom of expression from government interference. It influences criminal law in several ways and contexts. For example, any criminal law that could affect a person’s speech or right to express themselves could be impacted or limited by the first amendment. Contexts can include art, theater, literature, pornography, political speech, religious speech, and political or religious assembly.
In addition, any criminal law that could affect a person’s religious freedom — freedom from a government supported religion and freedom to practice and express their own religion — could be impacted or limited by the first amendment. Contexts here can include criminalization of a religious practice such avoiding medical intervention when sick even for children, to criminalization of sacred plants like peyote in Native American religious practices.
The Second Amendment: “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.”
U.S. Supreme Court in a 2008 decision in D.C. v. Heller, made clear that the Second Amendment does secure an individual right to keep and bear arms, not only a collectivist right. A law infringing upon the purpose of the Second Amendment, self-defense, is unconstitutional. The complete ban on ownership of handguns was declared unconstitutional, and requirements that handguns be locked, unloaded, or disassembled were unconstitutional. A law substantially preventing an individual from using a handgun for a lawful purpose is unconstitutional. The individual’s right to bear arms is subject to reasonable regulation, for example storage laws, bans on firearm ownership by dangerous people (felons or mentally ill), conditions on gun sales (background checks and licensing), and limits on concealed weapons.
The Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”