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The Bill of Rights secures key liberties for U.S. citizens against the government's power.
As the election nears, voters are considering the two leading presidential candidates’ records on a wide range of issues, including civil liberties – a broad term used to describe the constitutionally protected freedoms that protect citizens from excessive government power. These key freedoms are contained in the Bill of Rights, the first 10 amendments to the U.S. Constitution. For example, the protection for free speech under the First Amendment and the right to bear arms under the Second Amendment define people’s abilities to criticize the government and own weapons for private use.
In turn, as a scholar of American politics, I have seen that Kamala Harris and Donald Trump have very different records on these crucial American rights.
First Amendment freedoms of speech and press
As California’s attorney general, Harris indirectly found herself in a battle with the First Amendment. For many years, state law required nonprofit organizations registered in California to report names and addresses of donors of amounts over US$5,000 in a single year. In 2010, the year before Harris became attorney general, her predecessor began actually enforcing that law, which Harris continued when she took office in 2011. In 2014, several conservative groups sued Harris, saying her office’s enforcement of the law was violating their First Amendment right to give money anonymously.
Part of Harris’ job was to oversee the defense of the law in court, arguing that soliciting donor names did not bar donor disclosure requirements like California’s. The case lasted beyond her term as California’s top law enforcement officer: The U.S. Supreme Court declared parts of the law unconstitutional in 2021, after Harris had become vice president.
While he was president, Trump’s First Amendment record was more about the media than free speech. He repeatedly declared the press “the enemy of the people.” He has suggested that media outlets who provide coverage he dislikes lose their broadcasting licenses and has pressed to change laws about libel in ways that would make it easier for public figures to file suit against unfavorable coverage.
Second Amendment right to bear arms
Dating back to her tenure as a district attorney in San Francisco and as California’s attorney general, Harris has been an advocate for stricter gun control laws. However, she is not seeking to take away Americans’ guns – and recently revealed that she herself is a gun owner.
When serving as district attorney in San Francisco, Harris worked with the city’s mayor at the time, Gavin Newsom, to develop some of the strictest local gun regulations in the country. In December 2004, Proposition H was placed on the ballot and passed by majority vote in November 2005. Proposition H banned possessing a handgun within San Francisco, with a few exceptions, and banned purchasing, possession, distribution and manufacturing of all firearms in the city. However, the proposition was overruled by the San Francisco Superior Court, which said gun ownership should be regulated at the state level.
And in 2008, as the U.S. Supreme Court was preparing to hear a key gun control case, Harris led 18 elected prosecutors who urged the justices that a broad right to gun ownership could endanger local and state firearm laws. In a 5-4 decision, the Supreme Court held that the Second Amendment guarantees an individual the right to possess firearms.
However, the Supreme Court’s ruling did not stop Harris in her continued fight for gun regulation. She pushed for additional funding to confiscate guns from thousands of people whom California law said were banned from having them. Later as a U.S. senator from 2017 to 2021, Harris continued to advocate for gun regulation by sponsoring bills that would have enacted universal background checks and ban assault rifles.
During Harris’ term as vice president, she oversaw the White House Office of Gun Violence Prevention, which seeks to focus government attention on a wide range of policies to reduce gun violence, including restrictions on firearms, increased mental health services and new powers for prosecutors to use against people who use firearms when committing a crime.
Trump’s record on firearms, meanwhile, has been mixed. As president, he signed legislation in 2017 that softened background check requirements for gun buyers with particular mental illness diagnoses. And during the COVID-19 pandemic, he objected to the fact that many local orders to close businesses to protect public health included shutting gun shops.
Yet in 2018, he also moved to ban bump stocks – a device attached to a semiautomatic firearm that enables it to fire more rapidly. His ban was overturned by the Supreme Court in June 2024.
Trump also supported and signed the Fix NICS Act, a bipartisan law that strengthened reporting to the federal gun background checks system by requiring federal agencies to submit semiannual certification reports to the attorney general on their compliance with recordkeeping and transmission requirements.
Eighth Amendment protections against ‘cruel and unusual punishments’
The Eighth Amendment’s protection against “cruel and unusual punishments” has often been used by the Supreme Court to evaluate uses of the death penalty.
Harris has consistently pledged to refuse to seek the death penalty in criminal cases, noting a multitude of systemic flaws that result in its disproportional application based on defendants’ race and income. She also noted the cost to taxpayers of keeping prisoners on death row. Harris’ position was tested just months into her service as district attorney when a police officer was shot and killed in the line of duty in 2004. Harris declined to seek the death penalty for the shooter, who was convicted of murder and is serving a life sentence without the possibility of parole.
While attorney general of California, however, she defended in court the state’s power to impose the death penalty. But when, in March 2024, the state’s governor – Newsom – declared a halt to executions, sparing all 737 people on California’s death row, Harris praised the action.
Trump’s record on capital punishment dates back long before his political career. In 1989, he took out full-page newspaper ads calling for the return of the death penalty in New York. He specifically wanted it to be applied to the Central Park Five, five young Black and Hispanic men who were wrongly accused of raping and beating a woman. They pleaded not guilty but served years in prison before being exonerated by DNA evidence and the actual criminal’s confession.
During his term as president, Trump resumed federal executions after a 17-year hiatus, executing 13 people in the last six months of his presidency, the last of which was just four days before his term ended.
All in all, as voters decide who to vote for in the upcoming election, analyzing both candidates’ record on civil liberties is a good step in making an informed decision.
Donovan A. Watts does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
Source: The Conversation
