The criminal prohibition against burning a draft card

The United States V. O’ Brien is a case from the year 1968, regarding the criminal prohibition against burning a draft card on Boston Court house as an expression for his opposing the war. The court of United States gave its decision that he did not violate the First amendment’s guarantee of Free speech. (Delfino and Mary, 2006). The court considered that though people are expressing their opposition by burning of flags and wearing armbands, it is still a way to invoke against the prohibition. First Circuit court of appeals vacated and remanded.

In 1966, on March 31, O’ Brien with his friends burnt draft cards in front of South Boston Court House. Just then, the FBI took him inside the courthouse and advised him of his rights. He then confessed and produced the remains of the certificate. However, he paid $462 and kept on trial by the District court of Massachusetts. Though he tried his best to defend himself by giving his reasons, such as his act to oppose the war so that people around will also think and reevaluate their positions with selective services, the armed forces.

Even then, he got conviction and imprisonment for a period of six years for violating the Youth Correction Act, submitted under the Custody of the Attorney General. Though the court gave its decision, the investigation continued to find out if the burning of draft card was in any way unconstitutional and whether the rule was unduly restrictive of the element about O’ Brien’s act of expressiveness. The court held that the first amendment did not permit to impose any kind of prohibition relating to those speakers who express their views.

It is a fact that the government does not prohibit anyone from expressing their views anymore than it may censor speech. However, if the government is not thinking in terms of censorship of ideas, then we need to reanalyze what can be the decision of any of those judges when conviction of O’ Brien took place. Therefore, whether it is Judge Warren or Harlan, they need to think in terms of an intermediate approach including both censorship in expressing an individual’s view and anti-censorship. The first amendment comes into picture when regulations are interfered with the context of right to speech.

Here in O’Brien’s case, he defended saying that he was just expressing his view in opposing just like wearing the black armband or something else. That is why; even the Judges who gave their decision and dissent Douglas in this case are not convinced about the first amendment violation relating to speech. The court has therefore decided to work from both the sides and observe how far any valid approach or gesture remains in this case. Now, the primary outline is whether the conduct involves any incidental impact or not intentional speech.

Further, if it involves in aiming a person in particular with the speech irrespective of the message. The court at that time 391 U. S. 367 (1968), on 24 January decided to convict O’ Brien under a federal statue for violating by knowing destruction or mutilation of certificates, when there is a rule that everyone must carry their draft cards. Even until today, people wonder about the sentence given for O’ Brien services justice or not. Firstly, to raise and offer support to an army, the statue involved was enough to do this and it included the broad and sweeping power of the constitution.

The government showed interest in this test when they saw the interaction between the local board and the registrant, the proof being the number of registrations and the selective service certificate that served the above purpose. All these above factors led to frustration from the court of justice and led to conviction of O’ Brien. However, when O’ Brien tried to defend himself, the federal attorney guard made it a point to argue that O’ Brien on purpose interfered with the legitimate system just to “influence others to adopt his anti-war beliefs” and thwart for war.

O’ Brien and his attorney expressed their opinion on symbolic speech. O’ Brien expressed his burning as an act of symbolic speech, which the court has no right to prohibit from the first amendment. His attorney pointed to the court’s opinion in Stromberg v. California (1931) based on the above rule. Though court did not convict for O’ Brien for the burning of draft, they charged him and sentenced him for not possessing the draft card. Both United States and O’ Brien submitted a petition for review to the Supreme Court. It was a challenge of two sections, one for conviction and another for non-possession.

It held as a challenge for the lower court’s validation for fining amount of $462(b) (3), that is (No. 232) and non-possession activity (No. 233). However, the court did not reach the issue of the first circuit court appeal, which O’ Brien opposed for neither convicting nor trying, just for sustaining unconstitutionally. Nevertheless, the court took decision by combining both the petitions and in a 7-1 decision, performed three acts. They involved re-sentencing of O’ Brien’s sentence, vacated the decision of First circuit and finally the fine of $462(b) (3) upheld constitutionally.

After six years of imprisonment on an average, another file opened in the year 1998. This involved the drug trafficking issue along with the attempted robbery and weapon related case. The federal district court of Massachusetts convicted O’ Brien and his friend Arthur Burgess for attempted robbery and making use of harmful weapons. The United States laid a petition on their behalf and Jeffrey L. Fisher is the advocate defending them. The court gave its decision that it is left for the jury to decide because it involved AK 47 assault rifle by the defendant. Under 18 U. S.

C Section 924(c), the first circuit court also appealed that decision should be decided by the jury as the element of crime is reflected depending on the nature of weapon used. (Delfino and Mary, 2006). Usually, a 30-year period of minimum sentence is the decision of the court for these types of cases. If any case involves firearm and proved to jury or because of the preponderance of evidence, if the judge finds out, the sentence mentioned above is applicable. The case involves in interpreting 18 U. S. C 924(c) (1) (B) (ii) as sentence enhancement because of using the machinegun.

The court is yet to decide and has left to jury for a thirty-year minimum sentence rather than five years for ordinary violation of Section 924(c). On June 16, in the year 2005, O’ Brien along with his two others friends Arthur Burgess and another person tried to rob an armored car. They had semi-automatic assault rifle in their hand, a pistol and another pistol to operate as an automatic weapon. Therefore, with the evidence, court convicted O’ Brien and Burgess and charged them for using firearm or even carrying them, which indicates furtherance of crime or violence.

The modified pistol came to be a part of the indictment list as both machine-gun and firearm. Minimum of five years of imprisonment is the usual verdict given and apart from that, if a machine-gun is used, then it serves thirty years in prison. The Government appealed that 30-year minimum sentence period is mandatory. However, the U. S court of Appeals for the first circuit led to affirmation from the district court. Any case involving machine-guns should be tried by the jury. However, Supreme Court did not find it relevant enough to change the provision of machine-gun from an element of crime to sentencing.

The American Journal of Criminal Law contributed to encourage and improve the administration of criminal justice for three decades and continued to do the same. This Journal gained a lot of reputation as one of the nation’s longest running and one of the best legal serial publications. It is a free and non-commercial service chartered in 1970. The Journal was dedicated to moralize public in terms of academic, professional front. First Circuit comprehended that the Supreme Court granted Certiorari involving the issue to justify whether the usage of machine-gun is the element of crime or a sentencing factor.

The case is all about whether the defendant must stay in prison for long tenure or is it for the jury to decide since they used automatic weapon. Sometimes, the judge gives decision based on the defendant’s possession of an automatic weapon or preponderance of evidence, which decides about the sentencing factor for a mandatory time of sentence. The United States expressed its own opinion that it is a way to capture efficiency without keeping the accurate results of a trial in vain because the evidence is clear-cut.

It also makes an arguing statement that consistency is the determining factor which can inflict great harm in the automatic weapons used and especially while committing crime. Further, it reduces the guilty nature of a respondent in front of the judge, if the judge determines the firearm usage as sentencing factor or not. The respondents have their opinion in fighting for the case rights. Arthur Burgess, at 35 says that it is not impossible for government to prove that we possessed automatic weapons or any other.

He also says that the court is deviated to more of the crime done which can lead to 30-year minimum sentence rather than the victims suffering from racial disparity problems while being sentenced. Mr. Fisher started talking about the importance of increase in sentence for usage of a machinegun and the dearth of evidence of Congress’s intent to make firearm type a sentencing factor. Mr. Fisher further focused on the traditional treatment of firearm type as an element, a tradition that Castillo supports.

The government defended saying that O’ Brien, his compliance’s argument is not satisfactory, and there will be no applying of facts to sixth amendment because federal government also relies on it. Finally, the court hearing is next year orally. This was decided last September when 3 judges decided that jury must give the decision in this case. There are certain previous revisions due to which the influence on this case is for 30-year tenure.


Michelangelo Delfino, Mary E. (2006) Day Death Penalty USA: 2005 – 2006. Florida: MoBeta Publishing