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Constitutional Law I
University of Alabama School of Law
Fair, Bryan

Constitutional Law


Spring 2015


1. [LAW/POLICY] needs to be evaluated by considering…

2. Notes:

§ Make each side of the argument clear “opponent.”

The Second Amendment

3. Extension. In Heller, the Court extended the Second Amendment’s right to bear arms from militia service to individuals. McDonald clarified that the Heller opinion applies to both states and local governments and recognized the Second Amendment as a right through incorporation into the due process clause. The Court found absolute prohibition of handguns in the home to be unconstitutional.

4. Limitations. The Second Amendment is not absolute because Heller allowed “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller and McDonald protected the right to keep and bear handguns, which is a preferred weapon by ordinary Americans. The right does not extend to “dangerous and unusual weapons”. The Heller Court stressed the need for defense of self, family and property in the home and found a Second Amendment right to possess handguns because they are the most preferred firearm in the nation to keep and use for protection of one’s home and family.

5. Scrutiny. However, Heller did not address the level of scrutiny to be used for gun regulations. Courts have used the categorical approach and the heightened standard of judicial scrutiny approach when considering the regulations. The categorical approach upholds gun-control measures expressly mentioned in Heller. For other measures, courts analogize the restrictions to those restrictions that the Court deemed presumptively constitutional. Courts following the judicial scrutiny approach evaluate the law under an intermediate standard of review for regulations that do not directly affect the core right of citizens and strict scrutiny for those that affect the core right of citizens to possess firearms in the home for self-defense.

a. Prohibition Limits. Both Heller and McDonald addressed laws that in effect prohibited the right to keep and bear arms for the great majority of the public. Although the Heller majority stated that the Constitution leaves a variety of tools combating handgun violence, including regulation, the Court has not yet addressed, or established clear standards, for more limited regulations.

§ In McDonald, Chicago prohibited the registration of most handguns, which in effect banned handgun possession by almost all private citizens who reside in the city.

b. Militia. In Heller, the Stevens dissent argued that the Second Amendment right should be limited to militia service using the same historic sources as Scalia and reached this opposite conclusion because the initial draft included an exception for militia service. Given the close 5-4 Heller decision, the Court could readily flip their decision using the militia approach.

c. Shouldn’t Incorporate. Stevens stated several reasons why the Second Amendment should not be incorporated into the Fourteenth Amendment:

1. Firearms have a fundamentally ambivalent relationship to liberty. It can be used to defend against thugs, but also it can be used by thugs to murder innocent victims.

2. The right to possess a firearm is a different interest than one recognized in the Due Process Clause.

3. Other advanced democracies show that the right to keep and bear arms is not intrinsic to ordered liberty.

4. The Second Amendment was adopted for the States, not private persons.

5. States have a long and unbroken history of regulating firearms.

d. Against Objectives. Breyer argued that the Second Amendment works against constitutional objectives:

1. Incorporation of the right would amount to a significant incursion on a traditional and important area of state concern. Gun regulation is the exercise of a State’s police power.

2. Determining the constitutionality of a particular gun law requires finding answers that were better suited for legislatures.

3. The ability of States to reflect local preferences and conditions would be taken away. The nature of gun violence varies between rural communities and cities.

e. Reasonableness Test. Breyer’s dissent argued for a reasonableness test because gun-control may be warranted in light of gun violence. The decision should be deferred to legislatures because the kind of empirically based judgments are best suited for legislatures. Legislatures have better knowledge of local problems and have insight on the most appropriate local solution. By allowing a constitutional guarantee, the legislatures will be deprived of taking appropriate measures to ensure the safety of their citizens.

The First Amendment: The Religion Clauses

1. The First Amendment’s Religion Clauses prevent the establishment of religion and the restraint of free exercise of religion.

The Establishment Clause [Government Sponsors Activity]

1. Trigger: Private Religious Schools; Public money used for religion

1. Establishment Clause. Everson provided that the “Establishment Clause of the First Amendment means, at least this: Neither a state nor the Federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No persons can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support religious activities or institutions… to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. The clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”

2. Lemon Test. The Court ‘s principle test for determining the constitutionality of a statute was the Lemon test: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”

Neutral. The Establishment Clause requires the state to be neutral in its relations with groups of believers and non–believers. While the government cannot contribute tax-raised funds to support a church, it cannot hamper its citizens in the free exercise of religion. Consequently, it cannot exclude members from receiving the benefits of public welfare legislation because of their faith or lack of it.

3. Entanglement. Excessive government entanglement is determined by examining the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority.

4. Merged. Zelman only provides that the Establishment Clause prevents a State from enacting laws that have the 1. “purpose” or 2. “effect” of advancing or inhibiting religion. Thus, the third prong of Lemon may have been abandoned or merged. Should the prong have been abandoned, the entanglement analysis would not be a pivotal point o

ols will be on a way to becoming a bigger business with budgets enhanced by the tax-raised income.

• Religious Strife. In Zelman, Breyer argued that the development of constitutional doctrine reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity, but by drawing fairly clear lines of separation between church and state. Insisting religious schools to accept students of all religions does not treat fairly groups whose religion forbids them to do so. This causes impermissible entanglement between the church and state.

Not Religiously Hostile. In Locke, the Promise Scholarship Program was not unconstitutional because the interests of free exercise was insignificant relative to antiestablishment interests. It did not impose criminal or civil sanctions on any religious rite or service, deny ministers the right to participate in the political affairs of the community, or require students to choose between religious beliefs and government benefits. The State has merely chosen not to fund a distinct category of instruction.

Antiestablishment. The antiestablishment interests are great. Since the founding of our country, there have been population uprisings against procuring taxpayer funds to support church leaders. Most States that sought to avoid an establishment of religion around the time of the founding placed constitutional prohibitions against using tax funds to support the ministry.

No Religious Hostility. The Promise Scholarship Program did not evince hostility toward religion. The program permitted students to attend pervasively religious schools and students were still eligible to take devotional theology courses.

Unwarranted Exclusion. The minimum requirement of neutrality is that a law not discriminate on its face. The Framers’ hostility was to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. There are a number of ways that the state could respect both its unusually sensitive concern for the conscience of its taxpayers and the Free Exercise Clause. It could limit the scholarships to public universities, or only for select courses of study.

Federal RFRA. RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise clause claims. However, it was declared unconstitutional in Boerne because Congress is bound by the Enforcement Clause of the Fourteenth Amendment, which RFRA contradicts. However, Boerne does not address the constitutionality of the law as applied to the federal government. Should RFA be bound by the Federal Government, then the government cannot burden a person’s exercise of religion even if the burden results from a rule of general applicability unless the government demonstrates that the application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.