President-elect Donald Trump suggested Tuesday morning that people who burn the American flag out of protest should be punished for their actions, including possible jail time or removing their citizenship rights as a result.
Trump's suggestion that citizenship rights should be taken away is a new development to this debate. Imprisonment for flag burners has been suggested in the past, but it's unclear whether the stripping of citizenship rights has been proposed before.
The First Amendment and Supreme Court rulings
While some have said that burning the flag is disrespectful, others have pointed out throughout the modern era of the nation's history that it is a free expression of distaste for American policies, in accordance with the First Amendment to the U.S. Constitution.
The Supreme Court has upheld the right to burn the flag in the past. In Texas v. Johnson, the Court ruled that speech rights, even acts that offended a vast segment of society, couldn't be regulated, except in cases where a "clear and present danger" is instigated because of that speech (like falsely yelling "fire!" in a crowded theater).
Even the late conservative stalwart Antonin Scalia defended the practice. Scalia, who sided with the liberal bloc of justices during Texas v. Johnson, said, "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king."
Attempts to amend the Constitution
Attempts to ban flag desecration and burning have been proposed in the past, though they haven't had the necessary two-thirds vote in Congress to be submitted to the states.
Immediately following Texas v. Johnson, Congress passed a law called the Flag Protection Act of 1989, which made it a crime to burn the flag punishable by up to a year in prison. But that law, too, didn't pass Constitutional muster, and in 1990 the Supreme Court again ruled flag burning to be a protected free speech right.
Following that, Congress attempted to ban flag burning through Constitutional amendment. The proposal passed the House of Representatives by the required two-thirds vote, but fell shy in the Senate by just three votes in 1995.
There have been several attempts since then to ban flag burning as a protected speech right, all of which have failed.