Professor Hsieh’s Constitutional Law II Fall 2015 Semester Class
I. INDIVIDUAL RIGHTS
A. 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.”
1. The District of Columbia v. Heller, 544 U.S. 570 (2008)
a. Facts: District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Heller, respondent, applied for a registration certificate for a handgun that he wished to keep at home, but the District of Columbia refused.
b. Holding: The District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
2. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)
a. Facts: Law that restricts gun ownership/possession.
b. Petitioner request/view: hold that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States.” View that Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights. Slaughter house cases interpretation is flawed.
c. Analysis: Due process not P/I Clause (a deprivation of liberty, instead of a privilege or immunity of citizens of the United States). Deeply rooted in our history and tradition. Self-defense is a basic right. Substantive Due Process (Fundamental Rights Protection Clause) protects states from infringing on a fundamental liberty—here possession of guns for self-defense.
d. Thomas Concurrence: Nothing to do with “process”. It’s a privilege of American citizenship. Substantive Due Process is a judicial made distinction and is secondary to the plain meaning of the Constitution.
e. Stevens Dissent: Look at nature of right and whether that right is an aspect of “liberty.” Right to possess a gun has a tension because liberty to possess also provides opportunity to take human life (i.e. liberty). Gov. and States must balance tension, which is job for legislature, not Court.
f. Holding: Second Amendment right to bear arms applicable to the states; self-defense is a basic right and central component of the Second Amendment right; applies to hand-guns because most preferred firearm to keep and use for protection one’s home and family.
g. Compare Art. IV PI/C to 14th Amendment PI/C:
(1) Art. IV PI/C doesn’t apply to in-state residents, but out-of-state residents (also not applicable to the legislation of the states). Fourteenth Amendment affords PI to United States citizens (a national right). Particularly, this includes the rights to travel (exemptions from Saenz: States may differentiate in how much universities charge to in-state and out-of-state citizens, and differentiate in duration of its own citizens).
h. Valid: Slaughter-House Cases (1873) (Louisiana law of 1869 chartered a corporation—the Crescent City Live-Stock Landing and Slaughter-House Company—and granted to it a 25-year right “to maintain slaughterhouses, landings for cattle and stockyards” in an area that included the city of New Orleans; all competing facility required to close, but Corp. was required to permit independent butchers to slaughter cattle in its slaughterhouses at charges fixed by statute; butchers not included in the monopoly claimed that the law deprived them of their right “to exercise their trade” under Fourteenth Amendment) (Dissent: Recent Amendments protect the citizens of the United States against the deprivation of their common rights by State legislation)
i. Abandoning the Equal Protection/Fundamental Rights Methodology in favor of analysis under the Privileges and Immunities Clause (Rests on Structure of the Federal Union)
(1) Invalid: Saenz v. Roe (1999) (Roe moved to CA and was denied full welfare benefits under two laws, challenged that they violated the P/I Clause of Fourteenth Amendment by interfering with the rights of U.S. citizens
Ryan and Singleton, are for refusing a colored person a seat in the dress circle of Maguire’s theater in San Francisco and denying the full enjoyment of the accommodations of the theater known as the Grand Opera House in New York.
b. Rationale: 14th Am. prohibits state action of particular character. Individual invasion of individual rights is not the subject-matter of the amendment. Congress gets to pass legislation to correct state action, but it cannot prohibit discrimination by private entities. Civil Rights Act of 1875 is geared toward the domain of local jurisprudence, and lays down rules for the conduct of individuals in society toward each other. Nothing about state action in the Act. Hard to see where draw the line, so draw it at state action only.
c. Holdings: The Equal Protection Clause within the Fourteenth Amendment prohibits discrimination by the state and local government, but it does not give the federal government the power to prohibit discrimination by private individuals and organizations. The Court also held that the Thirteenth Amendment was meant to eliminate “the badge of slavery,” but not to prohibit racial discrimination in public accommodations.
d. Harlan Dissent: Need to give full effect of the intent behind why the amendments were passed. Clearly trying to prevent discrimination. Will of the people were behind the Act and we should not be so constrained by wordplay emphasizing a state actor over the deeper desire to etch out inalienable rights to be afforded to every citizen.
e. Exceptions to “State Action” doctrine (Gov. action, 50 states, and county subdivisions, feds, executive branch etc.):
(1) Public functions exception
(2) Entanglement exception
