An Amendment to the United States Constitution

The United States constitution of America is a system of basic laws as well as principles that describes the rights of American citizens and sets limitations on what government can do and cannot do. The constitution provides the framework for national (federal) government as well as establishes a federal system, whereby duties are divided between the national government, as well as the states’ governments.

One of the central doctrines on which the constitution is created is the separation of powers, which separates the power between three branches of the federal government. The legislative branch (Congress) which has the powers to make laws, the executive branch (which is represented by president, as well as his advisors,) of which has the power to apply the laws, and lastly the judiciary branch (i.e. the supreme as well as other federal courts) which has the power to reverse or dismiss laws that it decides are unconstitutional.

Need for a new Constitution
Immediately after America won independence from Great Britain with its victory in 1783, during the American Revolution, it became evident that the newly formed nation was in need of a strong central government to remain stable. In 1786, a lawyer as well as a politician from New York by the names of Alexander Hamilton called for a discussion on the matter of a constitutional convention. In February 1787, the legislative body of the confederation supported the idea and invited all the 13 states to have their delegates meet in Philadelphia. However, after the creation of the new constitution, it remained vague because that was the main intention of the constitution, so that with time the constitution would grow which in turn would solve many of United States’ current problems that the forefathers could not predict.

Bill of rights
The constitution’s first ten amendments are collectively referred to as the Bill of rights. The bill of rights ranks alongside the declaration of Independence as well as the constitution as one of America’s most treasured documents. The bill of rights was projected in order to appease the fears of the anti-federalists who opposed the constitutional approval.

The bill of rights was created specifically to guarantee the individual rights and freedoms of citizens under the constitution of which included the first 10 amendments. The bill of rights was also reserved for certain powers to the states as well as the public, and limited the governments authority in judicial and other proceedings. In addition, while the amendments were only initially applicable to the federal government, majority of their provisions had stretched to the states by means of the 14th amendment, a process referred to as incorporation. The drafters of the constitution felt it important to put in writing the constitution because they wanted the constitution to reflect their vision and define the most fundamental freedom rights of the people. The constitution they designed was a meant to endure, address specific challenges that would be faced by the nation, establish sustainable foundational principles that would guide the U.S nation into unclear futures.

James Madison pioneered the amendments to the initial United States congress as a succession of articles of legislation. The House of Representatives later on adopted the articles formally on 21 August 1789 and proposed by the joint resolution of congress on 25 September 1789 and became affected on 15 December 1791 as constitutional amendments through the method of approval by three-quarters of the states. Whereas 12 of the amendments were proposed through congress, 10 were only ratified originally by the states. Furthermore, of the two remaining amendments, one was adopted over 200 years later as the 27th amendment, while the other amendment technically remains unresolved before the states.

Originally, the bill of rights included the legal protection for white men owning land, and did not provide similar protection for African Americans and women. In addition, the bill of rights is very significant to the American law and government, and to this day remains a vital symbol of American freedoms.

Evolution of the 2 amendment over time
The second amendment guards the rights to have as well as carry arms. The right to possess arms precedes the bill of rights; the second amendment was established in part, on the right to possess arms within the English common law as well as influenced by the 1689 English bill of rights. The description of this right by Sir William Blackstone was as a supplementary right that supported the natural self-defense rights, oppression resistance, and the civic obligation to act within concert in state defenses. Academic inquest into the scope, purpose, as well as effect concerning the second amendment, has been contentious and has been subject to much analysis. In other words, the bill has not changed through the years since its ratification only the analysis.

The 2nd amendment impetus on social or political movements
The second amendment in other words can be referred to as politics of guns of which has been the impetus of social and political movements. The issue of gun politics in America politics is very controversial. For the last couple of decades, the discussion concerning the availability of firearms in the United States has been described by concerns over the right to have and carry arms of which is found in the second change of the constitution, and the duties of government in preventing crime, as well as death. Strict supporters of gun control cause that wide gun rights stop the government from fulfilling that duty. Supports of gun rights promote firearms for sporting activities, hunting and self-defense. An added motivation is tyranny defense.

Advocates for gun control claim that keeping guns away from the hands of criminals results in communities being safer, while advocates for gun rights claim ownership for firearm by law abiding citizens will reduce crime. Meanwhile, there is an ongoing unresolved debate concerning the relationship between violence and guns. For example, a study in 2003 by CDC (centers for disease control) called for more studies, reason being there was the lack of sufficient evidence to conclude the effectiveness of firearms laws or law combinations reviewed concerning violent results. In addition, with the movement uprising that was in America, of which some resorted to using firearms, the second amendment was in favor of some of the movement groups and hence the misuse and misinterpretation of the second amendment.

The 2nd amendment as a subject of litigation
Since the Supremes’ Court decision in Columbia District v Heller in 2008, the court declared that the second amendment gives an individual the right to have and carry firearms; several hundred cases of the second amendment have been litigated in the federal as well as state courts. The litigation pace has seemingly increased since the 2010 court decision in McDonald v. Chicago city. Despite all the court decisions made, the debate continues between gun control as well as gun rights movements and organizations that are related to it. Furthermore, some of the outcomes have left unanswered issues including whether the 2nd amendment restricts state regulations of firearms, as well as standard for evaluation of constitutionality of laws as well as regulations that impact the right of the second amendment. These issues are going to be subject of future litigation.

Below are several litigation cases

• Cruikshank v. U.S., 92 U.S. 542 (1875)

The first, second amendment court case to reach the Supreme Court was that of Cruishark. This particular case is on occasions misrepresented as showing that the second amendment fails protect a person’s right to have and carry arms. Archetypally, Cruishank is cited out of context by appealing the court held the second amendment is not a right the constitution grants.

• Presser v. IIIinois, 116 U.S. 252 (1886)

In the case, Herman Presser was found guilty of exhibiting armed men without permission from the Illinois state. The court’s ruling was that the states had the power to control as well as regulating military organs including parading activities, and the court further re-affirmed the application of the second amendment as limitation on only the national government.

• Texas v. Miller, 153 U.S. 535 (1894)

Franklin Miller on appeal was convicted of murder claiming that his second, as well as fourth amendment rights, were violated under the fourteenth amendment. Put differently, the court did not take into consideration whether Miller’s rights were violated under the fourteenth amendment, reason being he had not filed such a claim during his initial trial.

• Robertson v. Baldwin, 165 U.S. 275 (1897)

In this case, the court stated in dicta that the laws regulating masked arms had not interfered with the rights to have and carry arms and, therefore, were not in desecration of the second amendment.

• Eisentrager v. Johnson, 339 U.S. 763, 784 (1950)

In this case, the court announced that the fifth amendment due process rights were not an entitlement for enemy combatants because if it was so, then they would be entitled to freedoms of assembly, press, and speech as in the first, second, fourth, fifth, as well as sixth amendments.

• Heller v. Columbia District, 554U.S. 570 (2008)

In this case, the court announced that the second amendment defends a person’s right to have a firearm of which is unconnected with militia service. The citizen can use it in cases like self-protection within the home.

• McDonald v. Chicago, 561 U.S 3025 (2010)

In this case, the court announced that the amendment was incorporated, meaning that the amendment limits local as well as state governments to the same point that it restricts the federal government.

Current interpretation of the 2nd amendment
The second amendment has the distinct feature of being the only bill of rights amendment that has essentially gone unenforced. The Supreme Court has never put down any piece of legislation on grounds of second amendment, in part because justices have disagreed on the intentions of the amendment to protect the right to carry arms as an individual or as a part of the well-regulated militia. In other words, the second amendment has never affected the sitting of the Supreme Court.

2nd Amendment evolution in the modern era as anticipated by the framers
The United States’ constitution second amendment has not changed. It says the same thing today as it did in 1791 and therefore means the exact same thing. The only probable change is the peoples’ interpretation. This is not what the framers anticipated.

Does the second amendment still empower the people as the framers intended?
Yes it does because the second amendment was made to ensure the continuity and flourishing of state militias as a defense means as well as ensure individual rights to possessing firearms.

Freedom restrictions and balance between societal and individual rights
Question now is, does the amendment today have to be adhered to by both tenets. If the decision is made to put away the individual ownership aspect of the amendment, then reinterpreting the amendment will allow for highly restricted gun ownership which in turn will open up to drastic reinterpretation of other basic parts of the constitution. Then should nothing be done, and hence allow unrestricted ownership of guns, then we create a risk of having a gun society, of which is a risk too great to take. So can we have a constitutional freedom to carry arms and still permit restrictions, as well as regulations?

To create a balance, reasonable restrictions are the way forward, recognizing the amendment, but casting it, as has been done with most of the constitution. In any case, the United States has freedom of speech but a person is not able to freely say what they wish to say. One cannot incite violence with consequences. So why can’t gun ownership be the same, regulated without violating of the constitution.

The trick is finding a balance between restricted freedoms and reasonable regulation, as well as unreasonable unfettered ownership as well as unreasonable prior restraint.

Conflict vs. Consensus theory
In the case of the amendments, envisioned by the farmers as well as the evolution, it seems the framers were more bent towards the consensus theory because the social ideology centers on political or economic social systems and that if they were to be a change, it would occur within the social institutions provided of which was not the case because due to the evolution of the amendments, conflicts arose in the form of movement groups all across America. Therefore, it is in order to say that no particular theory paved way for the American people, but it can be said that both Consensus and Conflict theories were in play.

In summary, we can therefore say, we owe the challenges of the constitution a gratitude debt, for, without their criticisms, there would be no bill of rights, Thomas Jefferson wrote, “There is just enough opposition to enforcing the bill of rights adoption, but not enough force to drain the essential energy of the federal government.” George Washington concurred: ” They have given man the rights to the full as well as fair discussion, and gone on to explain them in a very clear as well as forcible manner that has made a lasting impression. “

That being said, the second amendment of the constitution was created in order to protect the rights of persons to have and carry arms. Fast forward to the 20th and the 21st century, the 20th century had considerable debate pertaining to whether the amendment protects individual rights or collective rights while the second amendment in the 21st century has been focus of renewed academic review as well as judicial interest.

In acknowledgment of the necessitate to arm the public as a militia is no longer a concern, but realizing that firearms are a part of the history as well as the culture of America, and Americans need firearms for both personal defense as well as sport. Ownership of guns is a right indeed – but it is also a huge obligation. With the obligation comes the interest of society to make certain that guns are used safely and are used by individuals who are properly trained and licensed. If a consensus is attained on this simple premise, it then will not be too difficult to iron out the details and to find an appropriate compromise.

Private International Law

Jurisdictional issues and applicability of the correct domestic law and conflict of legal remedies in Indian courts viz-a-viz foreign courts have assumed great PRIVATE INTERNATIONAL LAW importance in the recent past in view of the world becoming a global village.  The realm of Private International Law has assumed greater significance and dimensions with the spread of the Indian community across the globe in large numbers. Young and enterprising men and women desirous of career opportunities abroad, move on and relocate themselves for permanent settlement in foreign countries without any hesitation to satisfy their financial needs apart from enhancing their technical skills and intellectual content.  We, Indians are being appreciated across the globe for our adaptability to new language, community living and altogether new lifestyles.  While all these positives have come with the economic growth and the pursuit for excellence abroad in our younger generation, the most important aspects of our culture and value systems have received a true and genuine beating.  As a result in many cases pertaining to Indian spouses/couples settled abroad, we can notice incompatibility of temperament (not at an acceptable marginal level but at a very high level), intolerance to accept the changed life style of either of the partners and constant stress in the marital relationship of spouses/couples living abroad with or without children.  Constant stress and matrimonial discord, invariably leads one of the parties to seek redress within the legal system of the country which they have chosen to pursue their dreams.

In very many cases it is not uncommon to find either the husband or the wife or the live in partner or the spouse, to abscond from the foreign soil in order to escape from the legal clutches of the country where they chose to pursue their dreams.  While absconding from the foreign court’s jurisdiction in most cases we can observe that either one or more children of the couple are taken by the parent who absconds and a whole lot of proceedings are initiated in our country i.e. in India relying on the Guardian and Wards Act and other laws relating to family disputes in India.  The aggrieved person domiciled in the foreign country also resorts to getting remedies legally through such courts having jurisdiction to decide issues like custody, child care, protection of children etc. from the courts of the country of domicile.  Resultant outcome is passing of orders of different nature in both countries favoring either of them.  Most of the times both the spouses decide to remain ex-parte in the foreign jurisdiction and orders are being passed in the absence of either of them.

The following case laws from the Hon’ble Supreme Court and other High Courts has stressed the need to redirect the party approaching Indian courts to their respective country of domicile for pursuing legal remedies such as custody of minor children in the absence of any orders being passed by foreign courts.  However if orders have already been passed by foreign courts the party residing in India where the wife or the husband with or without children are directed to pursue, contest and bring to finality the orders regarding custody of children in the foreign court which is the court of the country where the parties had domiciled foregoing their Indian citizenship.

  • Isabell Singh V. Ram Sing and Anr, reported in AIR 1985 Raj 30, – “I am thus satisfied that it would be in the welfare of both Joanna and Lisa if their custody is restored to the petitioner and she is allowed to take them to the United States of America. I would accordingly direct that the Respondent Ram Singh shall handover the custody of both Joanna and Lisa to the petitioner forthwith. The petitioner is entitled and is hereby authorized to take the children to the United States of America.”
  • Elizabeth Dinsha -Vs- Arvand M. Dinshaw & Anr, reported in 1987 (1) SCC 42 – “As already observed by us, quite independently of this consideration, we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the United States of America and continue there as a ward of the concerned court having jurisdiction in the State of Michigan.”
  • V. Ravi Chandran –Vs- Union of India & Ors., (2010) 1 SCC 174 – “However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the Jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspect relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest if the child.”
  • Elizabeth Packiam & Another –Vs- State of Tamil Nadu,. CDJ 2013 MHC 3660, – “Finding the petitioners have approached this court with utmost promptitude, that the minors were ordinarily residents of Australia, that no elaborate enquiry into the merits of the rival contentions is called for and it would be appropriate to allow the Courts of the Country of the minors natural habitat to decide upon custody and related issues this court allows this petition.”

“…………as the minors were not ordinarily resident in India and that it would be best to leave issues relating to their custody to Courts in their country of habitat, Australia.”

Both the parents are found to use minor children either one of them or all of them to some practical advantage in order to settle personal scores.  While doing so either of the parents are often involved in character assassination of their counter parts.  Prejudicing the tender mind of the minor children courts could cause havoc in the psyche of the young kids who are in the company of a single parent either the mother or the father.  Children are taught the worst things about their father or mother living in separation due to forced circumstances to tarnish the image of their counterpart and to boost and show that the parent with whom the child is currently living is the best in the world. To satisfy their personal egos, to wreck vengeance on the other partner, unmindful of the agonizing effect that is being etched on the delicate mind of the young child such acts are consciously pursued by none other than the parents.  Winning legal battles and teaching a lesson to the life partner takes centre stage and priority and the spouses are not afraid of cleaning up their savings to achieve the said goal. Some single parents are seen working overtime to make money for budgeting the legal expenses likely to be incurred in prosecuting and defending proceedings. Children also take undue advantage and increase their demands and requirements knowing fully well that certain requirements of theirs will be met if the parent with whom they are residing is made happy even by accusing the other parent.  Lot of emotional undesirable changes affecting the character of the child in the long run gets registered, nurtured and projected unknowingly.  The words such as co-parenting, single mother, single father etc., have all gained significance due to the recent globalization and opening of career opportunities throughout the world. Courts have also started to consider foreign judgments as binding on parties and in all the above Supreme Court decisions, we find that due respect for a foreign decree is being canvassed and subscribed with the authority by the Apex Court of our country perhaps to curb malicious prosecution, self serving litigation etc.

Even though prescribed provision of Public International Law requires only signatory countries to the treaty to honour their counterpart judgments and decrees, the Supreme Court is still considering the nuances, and changes in the Private International Law has come to the aid of the spouse who had secured appropriate orders regarding custody of children from the competent court.  The Supreme Court would go on to add a phrase “comity of courts” to bring in a host of other countries who are not signatories to the treaty regarding execution of foreign decrees.

Writ of Habeas Corpus generally considered as a remedy for securing a detenu who is in illegal custody of either the law enforcement agency or individuals, is the writ i.e. being invoked by the aggrieved parent against whose wish and consent the minor child has been withdrawn from the country of their domicile to the country of birth of the other parent. Various guidelines have been framed by the Supreme Court and the High Courts as to when and how the writ jurisdiction can and cannot be invoked and courts have always come to the rescue of the aggrieved parent by directing the return of custody of children along with their passports with a direction to the other parent to participate in any proceedings relating to custody in a competent court in the country of their domicile.  The spheres of 2 courts, the applicability of laws regarding jurisdiction, the management of litigation and the urgent interim measures regarding visitation rights of either of the parents pending litigation and the temporary custody are all aspects for which proper and effective legal remedy can be availed by invoking article 226 of the Constitution of India or Article 32 of the Constitution of India either before the Hon’ble High Courts or before the Apex Court as the case may be.  The above mentioned case laws will give enough insight into the legal topic private international law – custody of children/visitation rights and enforcement of foreign decree.

Everything You Wanted to Know About Obtaining Asylum in the U. S. But Were Afraid to Ask

International norms for refugee protection were first outlined in the 1951 United Nations Convention for the Protection of Refugees and later reaffirmed in the 1967 Protocol Relating to the Status of Refugees. Under the Convention and the Protocol, the term “refugee” applies to:

Any person who… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular group, or political opinion, is outside his country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence… is unable or, owing to such fear is unwilling to return to it.

The original 1951 Convention only provided protection for World War II refugees. Future refugees the world over are included in the 1967 Protocol. The United States never signed on to the 1951 Convention but did accede to the Protocol in 1967 which includes all refugees. However, our Congress did not enact its own Refugee Act until 1980. Our government codified the 1967 Protocol into our Immigration and Nationality Act (INA) such that an applicant for asylum must have: (1) a “well-founded fear of persecution;” (2) the fear must be based on past persecution or the risk of future persecution; (3) the persecution must be “on account of race, religion, nationality, membership in a particular social group, or political opinion;” and (4) the persecutor must be the government or someone whom the government is unwilling or unable to control.

Eligibility for Asylum

The legal remedy of asylum is available to both noncitizens legally in the United States and to undocumented noncitizens who are seeking protection from persecution they faced or would face in their home country on account of one of the several specific protected grounds. Thus, not all immigrants are protected from persecution. Rather, the persecution must have a connection to the specific protected characteristics of race, religion, nationality, political opinion, or membership in a “particular social group.”

An asylum request is automatically considered as an application for an alternate claim of relief known as “withholding of removal.” Both forms of relief require the claimant to demonstrate a certain quantum of persecution that the individual suffered in his or her home country or would suffer if returned there, and both require a “nexus” between the persecution and one of the protected grounds. In 1996, an amendment to the INA mandated that a claim of asylum must be made within one year of arriving in the United States.

While the legal concepts of asylum and “withholding of removal” appear nearly identical, they have important differences. Asylum is subject to the “discretion” of the Secretary of the Department of Homeland Security or Attorney General of the United States. Whereas, withholding of removal, if proven, is a “mandatory” form of relief. A person granted asylum may be eligible for permanent residency. Most litigants prefer asylum. A grant of asylum will allow the applicant, after a one-year stay in the United States, to adjust his or her status to that of a legal permanent resident. Withholding of removal only guarantees that the person will not be forcibly returned to his or her country of origin and does not preclude the possibility of being removed to a third country. The applicable standard of proof is also higher in a withholding of removal than in an asylum grant. In order to obtain a withholding of removal, the claimant must show a clear probability of persecution. The showing for asylum is only a well-founded fear of persecution.
There are only two types of applications for asylum; which are termed either “affirmative” applications or “defensive” applications. Asylum applicants, applicants for withholding of removal, and applicants seeking relief under the Convention Against Torture who are not currently under immigration deportation proceedings, but have a fear of persecution if they return to their homeland, may file an “affirmative” application by mailing a Form I-589 to a regional United States Citizenship & Immigration Service (USCIS) center under the auspices of the Department of Homeland Security (DHS).

A specialized corps of full-time professional asylum officers receives the applications and interviews the applicants. Asylum officers grant asylum in meritorious cases, which initially ran between 15% and 39%, but in recent years have exceeded 40%. They do not deny the other cases; instead, asylum officers refer them to the immigration court, placing the cases in removal proceedings. Once in removal (deportation) proceedings, those applicants who did not receive a grant of asylum with respect to their “affirmative” application may now renew their application for asylum by renewing their request for asylum as a “defensive” application. The “affirmative” I-589 application becomes a part of the immigration court record. For those individuals placed in removal proceedings who never filed an “affirmative” application and who believe they may have a claim for asylum, withholding of removal, or a claim for relief under the Convention Against Torture, will be allowed to submit an application Form I-589 as a “defensive” application for relief.

Immigration Court Proceedings, Appeal and Review

Immigration judges (IJ’s) provide the initial evaluation of all “defensive” applications for asylum, withholding of removal, and provide a second review of “affirmative” applications referred by asylum officers. In the latter situation, the immigration judge receives the pre-existing I-589, with its attachments, from the asylum officer, along with copies of the “charging document.” Applicants are allowed to supplement their claim in immigration court and put on additional witnesses. This allows the case to be heard in the more formal setting of the immigration court where witnesses may be examined and cross-examined by the asylum seekers’ counsel and Department of Homeland Security (DHS) counsel. To be clear, if removal (deportation) proceedings are already underway, the applicants can apply for asylum or withholding of removal only by presenting “defensive” applications that are heard exclusively by the immigration judges.

At the hearing, the claimant must present evidence to avoid removal (deportation). The DHS will present evidence and argument in support of its decision to refuse asylum. Evidence presented must be relevant and conform to requirements of constitutional due process. The burden of proof is on the applicant to establish that the applicant is a refugee within the meaning of the statute and that they will be persecuted because of one of the five protected grounds. If the claimant persuades the immigration judge that she meets the statute’s asylum requirements, then the judge may grant asylum for an indefinite amount of time. In addition, the claimant’s immediate family members who are still abroad may join her in the United States.

However, if the immigration judge (IJ) denies the asylum request, the applicant may appeal his or her case to the Board of Immigration Appeals (BIA). The BIA reviews all appeals from immigration courts throughout the United States. The BIA is an administrative appeals tribunal that is part of the Executive Office for Immigration Review (EOIR) in the U.S. Department of Justice. The BIA has never been recognized by congressional statute; it is entirely a creature of the Attorney General’s regulations, and the Attorney General appoints its members. The BIA has several options with respect to the appeals: it may reject the claim on appeal, remand a case to the IJ with instructions to follow an appropriate course of action, or it may grant asylum directly. Although the BIA hands down a large volume of appellate decisions each year, only a small fraction are designated as precedential decisions each year for inclusions in official reports.

If the BIA rules against the claim, an applicant may appeal to the Federal Court of Appeals for the circuit in which the case originated. The circuit court may then remand the case to the BIA with instructions for a ruling consistent with the circuit court’s findings. Furthermore, if a circuit adopts a different rule than the BIA, the new rule will be applied within the circuit court in future cases. As a result, circuit splits have arisen because of inconsistent rulings among the circuit courts regarding the same legal issue.

Leonard Birdsong is a 3-time professor-of-the-year at Barry University School of Law and former U.S. State Department diplomat with assignments in Nigeria, Germany and the Bahamas. He worked as a federal prosecutor in Washington, D.C. and private practice in Washington, D.C. specializing in trial work in both criminal matters and asylum cases. He also provides legal commentary on Fox News, CNN, and MSNBC. He also appears as a legal commentator on CBS radio and Fox radio news.