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


2nd Amendment

Points to Remember:

The 2nd Amend protects right to bear arms
2nd Amend applies to both federal and state
SCOTUS hasn’t defined scope of right to keep, but the right encompasses hand-guns in home for self-defense which extends to other weapons possessed by law-abiding citizens for lawful purposes.

Dangerous and unusual weapons are not protected (like machine guns)

Federal or State laws violating handguns in home violates 2nd Amendment. SCOTUS has not listed a standard of review. But they said it definitely is NOT Rational Basis
Lower courts apply heightened scrutiny to laws restricting possession of firearms, and use intermediate standard in assessing constitutionality of gun regulations. Will apply stricter standard the more closely laws impinge upon the core constitutional right of possession of a handgun in the home for self-defense

Trigger facts: any regulation on guns
Standard: heightened scrutiny (court doesn’t say which specifically, but says no RB)—burden on govt. to justify reg

court in Heller and McDonald does not give an absolute right of the 2nd—clear that there are limitations on guns

District of Columbia v. Heller (2008)

Constitutional Issues

Broad: What is the nature and scope of the Second Amendment?
Narrow: Do the DC handgun regulations violate the Second Amendment?

Does the Second Amendment only apply to starting and keeping a militia?
Two parts of the statute:

Not allowed to have handguns in the home whatsoever
In order to keep any gun in the house, it must be kept locked

*Must consider how SC is allowed to look at this case since it deals with State law. Must discuss “whether the DC handgun regulations violate 2nd as applied to the States under 14th Amend.” (McDonald)–in Heller not an issue b/c DC under federal law.

Rules of Law

Standards of Review:

Rational Basis Standard: there is a presumption that the regulation is valid; the burden is on the challenger to show that the law is arbitrary or irrational; the government is arguing this standard in Heller. They want the assumption that their standard is reasonable. Law arrives at the court with the presumption in its favor.
Strict Scrutiny: most rigorous review by court, presumption is flipped or reversed; the presumption is that the law comes to the court with a presumption against it. Burden of justification is on the govt to establish sufficient reasons for intruding on or burdening that individual right. (Dissent in Heller wants this) When this is applied, the govt almost always loses
Dissent criticizes majority for not listing a standard of review, but footnote states majority asking for more than just rational-basis scrutiny.

Majority Decision

new fundamental right–there is an individual right under 2nd, to possess a usable handgun in home (limits fed authority)

No Constitutional right is absolute, there are always exceptions

Exceptions to the Second Amendment that the majority addresses:

Regulating who can buy weapons (mentally impaired, felons, etc.)
Regulate where you can bring arms (schools, government buildings, etc.)
Regulating laws imposing conditions and qualifications on the commercial sale of arms
Limitation on “dangerous and unusual weapons”

“nothing in our opinion should be taken to cast doubt on 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 govt. buildings, or laws imposing conditions and qualifications on the commercial sale of arms”

“District’s ban on handgun possession in the home violates the 2nd Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense”
“the need for defense of self, family and property is most acute” in the home, right applies to handguns b/c they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” Thus, citizens must be permitted “to use handguns for the core lawful purpose of self-defense.” This right is “deeply rooted in this Nation’s history and tradition.”

Dissent Position

2nd Amend. does not vindicate individual rights and applies in the sense of beginning and maintaining a militia.

Even if did vindicate individual rights, the amend. is about an individual right in relation to military service

Breyer – Says strict scrutiny is impossible, and that there should be an issue-balancing inquiry as scrutiny where the sole obligation is to ensure that a legislature has drawn reasonable inferences based on substantial evidence

“Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

Stevens – Says the majority got it wrong and the real distinction between the Miller case was the distinction between military and nonmilitary use and possession of guns

“The Majority’s conclusion is wrong for two independent reasons. The first reason is that [the] Second Amendment protect militia-related, not self-defense-related, interests.” “The second independent reason is that the protection the Amendment provides is not absolute.”
“The majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.”

McDonald v. City of Chicago (2010)

McDonald wants to keep handguns in their homes for SD, but are forbidden to by municipal ordinance

McDonald Claims: 1. laws violate the right to keep and bear arms b/c right is a privilege and immunity of citizens of the US (14) 2. That 14th s DP clause incorporates the 2nd right to the states (DP Claim)

Court focused on DP claim—14th Amend. DP clause “incorporates” the 2nd amend. right to states

Chicago arg: right set out in the Bill of Rights applies to the States only if that right is recognized by all temperate and “civilized” legal govts., from a deep and universal sense of their justice.

B/c other civilized countries either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the 14th.

Standard for incorporation:

“Governing standard is not whether any ‘civilized system can be imagined that would not accord the particular protection.’ Instead, whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice…court abandoned notion that the 14th amend. applies to the states only as a watered down, subjective version of the individual guarantees of the Bill of Rights…instead the court decisively held that incorporated Bill of Rights protections are all to be enforced against the States under the 14th Amend. according to the same standards that protect those personal rights against federal encroachment.”

Holding: “hold that the DP clause of the 14th amend. incorporates the 2nd Amend. right recognized in Heller.”
Plurality Rationale:

Reject arg. that 2nd differs from the purpose (primarily to use firearms in SD) that is claimed to make the right implicit in the concept of ordered liberty—never suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value
Is fundamental to our scheme of ordered liberty and system of justice because we are trying to protect ourselves through self-defense which is needed to keep order as recognized by the 2nd Amend.
14th amendment DP not P&I (Privilege and Immunities) is how we incorporate rights to state and local.

Dissent: Breyer: 1. No popular consensus that the right is fundamental; 2. right does not protect minorities or persons neglected by those holding political power; 3. Incorporation would amount to a significant incursion on a traditional and important area of state concern; 4. Incorporation will force judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area which they lack expertise.

Thomas argued that the 2nd should be reviewed under P & I clause of 14th, says court makes an error in employing DP clause in these gun case rather than PI clause—does not want to read any broader substantive rights in DP clause
Stevens would just look to see if the right applies to states b/c of the 14th standing alone

The Religion Clauses

The Establishment Clause Cases

Establishment Clause: “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” à 14th Amendment incorporated it to the States

Factual triggers: financial aid, school prayer, public displays and, tax payer challenging
EC cases subject to Lemon test, as modified by Zhelman

Financial Aid

Everson v. Board of Education (1947)—Bus Vouchers

Acting pursuant to NJ statute, a local school board authorized the reimbursement to parents of money they expended for bus transportation for their children. Some reimbursements went to parents of children attending Catholic schools which gave regular instruction in tenets conforming to the Catholic faith
Claims: 1. Do reimbursements violate the Due Process Clause of the 14th Amend? (rejected this claim under rational-basis view—govt. always wins). 2. Do reimbursements violate the 1st Amend. EC, which the 14th makes applicable to the states?

The “Establishment” Clauses of the 1st Amendment means 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 to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions…to teach or practice religion. Neither a state nor the Federal govt. 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.”

Holding: The New Jersey statute does not violate the establishment clause (because general public benefit)
Rationale: RB standard of review, the program focused on transportation not on religion, money isn’t used to teach tenants of a certain faith.

NJ cannot consistently with the “establishment of religion” clause of the 1st amendment contribute tax-raised funds to the support of an institution which teaches tenets of faith of any church. On the other hand, the language of the amendment commands that NJ cannot hamper its citizens in the free exercise of their own religion. (mindful of both EC and FEC).

Cannot exclude individual Catholics, Lutherans, etc. from receiving the benefits of public welfare

The EC “requires the state to be neutral in its relations with groups of religious believers and non-believers, it does not require the state to be their adversary. State power is no more used so as to handicap religions, than it is to favor them.” (EC and FE).
“legislation does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.”

Appropriation is for a public, not a private purpose, namely the promotion of education


(Jackson): Court ignores the “essentially religious test” by which beneficiaries of this expenditure are selected
(Rutledge, Frankfurter, Jackson, and Burton): No public money can go to religious schools in any way (directly, through third parties, etc.)

First amendment’s purpose was not to strike merely at the official establishment of a single sect, creed or religion. It was to uproot all such relationships…it was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.
The realm of religious training and belief remains, as the amendment made it, the kingdom of the individual man and his God. It should be kept inviolately private, not confounded with what the legislatures legitimately may take over into the public domain. WE have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion. That policy necessarily entails hardship upon persons who forgo the right to education advantages the state can supply in order to secure others it is precluded from giving…but it does not make the state un-neutral to withhold what the Constitution forbids it to give.”

Lemon v. Kurtzman (1971)—Financial Aid

RI stat authorized state officials to supplement salaries of teachers of secular subjects (all teachers who applied for benefits under the Act were employed by Catholic schools). PA stat authorized direct payments to nonpublic schools for expenditures for salaries, textbooks, and instructional materials (statute prohibited reimbursement for any course teaching religion).
Legal standard—Lemon Test:

First, the statute must have a secular legislative purpose (purpose); second, its principal or primary effect must be one that neither advances nor inhabits religion (effect); finally, the statute must not foster ‘an excessive government entanglement with religion. (entanglement)


Frist Prong: Statutes state they are intended to enhance the quality of secular education in all schools covered by compulsory attendance laws. A state always has a legitimate concern for maintaining minimum standards in schools
Second prong: Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable…the line of separation, far from being a “wall” is blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.
Third Prong: In order to determine whether the government entanglement with religion is excessive, we must examine (1) the character and purposes of the institutions that are benefitted, (2) the nature of the aid the State provides, and (3) the resulting relationship between the government and the religious authority.

Lemon Test: only need to fail one prong, can pass the others but fail one (If fails, strike down statute)
Holding: Struck down both statutes b/c failed the third prong of the Lemon test (excessive entanglement)

CHALLENGERS WIN–GOVT LOSES: Lemon majority good for strict separationists approach to EC

Rationale: both statutes foster excessive entanglement:

Problem with the type of monitoring that would be required in order to keep the teachers from teaching anything religious or including their religious opinions in the teaching of secular subjects. Not fair to the teachers and too much entanglement by the State. Political fragmentation and divisiveness on religious lines are thus likely to be intensified too
The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions or private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.

Concurrence: “If the government closed its eyes to the manner in which these grants are actually used it would be allowing public funds to promote sectarian education. If it did not close its eyes but undertook the surveillance needed, it would intermeddle in parochial affairs in a way that would breed only rancor and dissension.”

Zelman v. Simmons-Harris (2002)—School Vouchers

OH allowed schools districts meeting certain requirements to offer scholarships to students. Only the schools in Cleveland met the requirements so the students and parents were allowed to use the scholarship at any school they wanted, public or private schools, even private religious schools. The money was given to the parents who then paid the school of their choice. 96% of children were being sent to religious private schools

Issue: “when can government have certain kinds of funding for religious programs, if ever?”

Legal standard: “the Establishment Clause of the 1st Amend. as applied to the states through the 14th prevents a state from enacting laws that have the ‘purpose’ or ‘effect’ of advancing or inhibiting religion.”

Lemon test? prong 1—legislative purpose (improve education); prong 2-neutraility: law neither advances or prohibits religio

ith tradition (exercise). It is not the business of the government to sponsor religious activities in the school context. The principle directed and controlled the substance of the speech, and the potential for divisiveness was high. No real choice for students not to attend the graduation so school was forcing and prescribing the invocation and benediction.

“to say a teenage student has a real choice not to attend her high school graduation is formalistic. In our society and in our culture high school graduation is one of life’s most significant occasions…prayers are an essential part of these ceremonies b/c for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence.”

Concurring (Blackmun, Stevens, and O’Connor): when govt. “composes the prayer,” selects the member of the clergy to deliver the prayer, has the prayer delivered at a public school event that is planned, supervised and given by the school officials, and pressures students to attend and participate in the prayer, there can be no doubt that the govt. is advancing religion…it is not enough that govt. restrain from compelling religious practice: it must not engage in them either.”
Concurring (Souter, Stevens, and O’Connor): Just because the Framers participated in religious addresses only proves that either the Framers did not share a common understanding of the EC, or consciously turned their backs on constitutional ideals. Graduation addresses are made specifically to one group who does not have the option of not paying attention.
Dissent (Scalia, Chief Justice, White, and Thomas): Nation has a history of government sponsored prayer and invocations; there was no coercion in this case because we should teach people to be respectful of other religions. No one was forced to prayer or take part and there were no reprimands for not participating

“the long standing American tradition of prayer at official ceremonies displays w/ unmistakable clarity that the EC does not forbid the govt. to accommodate it.”

Santa Fe Independent School District v. Doe (2000)—School Prayer at Football Game

Prayer and football games, the school had a vote with the student body to see if they wanted the prayer to be said, and a vote to determine who should say the prayer. 6-3 decision
Holding: Does violate the Establishment Clause.
Standard: “At a minimum, the Constitution guarantees that govt. may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.”—Lee v. Wiseman
Rationale: The relevant question is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools. Voluntary prayer is protected by the constitution, but this is NOT a case of voluntary prayer. This is not a “private speech” case. Court relies on the Lee v. Weisman precedent. No secular purpose, “invocation” listed as the example which is obviously religiously affiliated

Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, SF’s student election system ensures that only those messages deemed “appropriate” under the District’s policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.
school sponsorship of a religious message is impermissible because it sends a message to those who are not of that religious faith that they are outsiders and those that are members of the religion that they are favored members of the community. (Insiders v. Outsiders Arg)–effect not neutral

Dissent(Rehnquist, Scalia, and Thomas): The policy has plausible secular purposes, and “where a governmental body expresses a plausible secular purpose for an enactment, courts should generally deter to that stated intent”

Town of Greece (2014) Monthly town board meeting began with prayer. Town selected prayer givers by inviting ministers listed in the local directory until one accepted. Majority were Christians. Prayers were “explicitly Christian.” Do the prayers violate the Establishment Clause?
Holding: Does NOT violate. They fell within the accepted practice of legislative prayer
Standard: EC allows legislative prayer. It is constitutional considering “our history and tradition have shown that prayer in this limited context could coexist with the principles of disestablishment and religious freedom.”

“Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”

Rationale: Absent a showing of a pattern of denigration, proselytizing, or a betrayal of “an impermissible government purpose,” it is not the courts role to decide cases based on the content of the legislative prayers.

To do so would “”involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”

Marsh Rule: Look to history of world, if history says we can have prayer, we can pray. Considering our history and tradition, showing prayer in our context… absent pattern of prayer overtime that denigrate…or betray government purpose… prayer will not violate constitution.
Dissent: The dissent argues that this case does not fall into the Establishment Clause’s accepted practice of legislative prayer for three reasons

The governmental proceeding at which the prayers occur differ significantly in nature and purpose,
The audiences to whom the prayers are directed are different, and
The prayers themselves differ in their content and character.

As such, the prayers do not meet the neutrality requirements of the EC

Public Displays – No Clear Standard of Review

When determining whether a public display violates EC, look to the nature of the monument and the nation’s history when balancing (Van Orden)
Van Orden v. Perry (2005)

TX Fraternal Order of the Eagles created and donated a monument depicting the Ten Commandments along w/ other religious imagery to the TX State Capital grounds where other monuments had been donated. The State selected the location for the monument, but the Eagles paid for and created the monolith.
Holding: Texas display of this monument does not violate the EC.

Court found that the nature of the setting and the array of other 17 other monuments over 22 acres suggested no endorsement of religion.