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Constitutional Law I
University of California, Hastings School of Law
Little, Rory K.

Originalists: believe plain language of the text should control, it is the intention of the framer’s that should control
Other camp: justice brennan, liberalism, constitution evolves over time, also consider themselves originalist, that the framer’s intended the meaning to evolve over time

District of Columbia v. Heller: held that the 2nd amendment protects an individual’s right to possess a firearm for private use in federal enclaves. The decision did not address the question of whether the 2nd amendment extends beyond federal enclaves to the states. First case in US history to decide whether the 2nd amendment protects an individual right to keep and bear arms for self defense. Found DC regulation was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock”
The Court based its reasoning on the grounds:
– that the operative clause of the Second Amendment—”the right of the people to keep and bear Arms, shall not be infringed”—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of “the people” elsewhere in the Constitution, and historical materials on the clause’s original public meaning;
– that the prefatory clause, which announces a purpose of a “well regulated Militia, being necessary to the security of a free State”, comports with, but does not detract from, the meaning of the operative clause and refers to a well-trained citizen militia, which “comprised all males physically capable of acting in concert for the common defense”, as being necessary to the security of a free polity;
– that historical materials support this interpretation, including “analogous arms-bearing rights in state constitutions” at the time, the drafting history of the Second Amendment, and interpretation of the Second Amendment “by scholars, courts, and legislators” through the late nineteenth century;
– that none of the Supreme Court’s precedents forecloses the Court’s interpretation, specifically United States v. Cruikshank (1875), Presser v. Illinois (1886), nor United States v. Miller (1939).
However, “[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court’s opinion, although refraining from an exhaustive analysis of the full scope of the right, “should not 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 government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Therefore, the District of Columbia’s handgun ban is unconstitutional, as it “amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense”. Similarly, the requirement that any firearm in the home be disassembled or bound by a trigger lock is unconstitutional, as it “makes it impossible for citizens to use arms for the core lawful purpose of self-defense”.

Dissent: In a dissenting opinion, Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”.[48] Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which was present in the Declarations of Rights of Pennsylvania and Vermont.[48] The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the “militia” preamble and exact phrase “to keep and bear arms” demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts’ later “collective-right” reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons…. I could not possibly conclude that the Framers made such a choice.”
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia’s handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that “guns were ‘responsible for 69 deaths in this country each day.'”
With these two supports, the Breyer dissent goes on to conclude, “there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.” It proposes that firearms laws be reviewed by balancing the interests (i.e., “‘interest-balancing’ approach”) of Second Amendment protections against the government’s compelling interest of preventing crime.
The Breyer dissent also objected to the “common use” distinction used by the majority to distinguish handguns from machineguns: “But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun…There is no basis for believing that the Framers intended such circular reasoning.”[49] (Other commentators have agreed with Breyer’s criticism, but argued that the Court therefore erred in not overturning current machinegun restrictions.[50][51])

Structure of the Constitution –
– Article I: Legislative Branch
– Article II: Executive Branch
– Article III: Judiciary Branch
– Article IV: States (federal govt duplicative of what States do, Kennedy argue that it is this contribution of federalism that is the constitutions most significant contribution)
– Article V: Amendments
o Supermajority (Madison (should be rare) v. Jefferson (should be easier))
o Article also says that issue of slavery may not be addressed by amendment in the constitution for another 20 yrs
o All states have equal suffrage in the senate is intended an immutable part of the constitution
– Article VI: Misc
o Debts from prior US under Articles of Confederation important to maintain credit standing with out trading partners
o Cl. 2: laws that are repugnant to the constitution are void and all treaties made are supreme law of the land, state judges are bound by the laws of the constitution, laws made by congress or treaties. Anything in the state constitution that contradicted the US constitution was at the time of ratification void
o Cl. 3L: oath for federal representatives, or state representative and swear to support the US constitution and no religious test to qualify
– Article VII: Ratification

Chapter 1 – Role of the Supreme Court in the Constitutional Order
The Basic Framework
Marbury v. Madison –
– Marshall:
o transformed the British idea of the court (each have their own opinion) to the American institution of the judiciary branch who agree on one opinion
o outlived many of the framers, was an actual delegate in VA, could say with authority what the intent of the const. was at the time of its construction
– History of the case:
o GW to be first president, sends Jefferson to be minister of France during constitutional convention. Alex Hamilton becomes GW’s right hand and when Jefferson returns quits because of tension with Hamilton.
o 1796, GW says won’t serve another term after two, his VP, John Adams runs
o John Adams runs against Jefferson, wins, serves one term
o Election of 1800 between Jefferson and Adams essentially a tie and thrown into the house of reps to decide, eventually Jefferson is elected and represent the new “republic party” – a populist party
o Close of election lots of bad blood with federalists à federalists have lame duck authority until inauguration in March decide they are going to pack the judiciary because they’re losing the executive and the legislature
o Enact a number of laws:
§ Make judges of the S Ct. ride circuit on horses
§ Judge packing bill – estb 46 newly created positions of justices of the peace in DC
§ One of the 46 they decide to appoint is Marbury
§ Marshall serving as sec of state under Adams is appointed as Chief Justice and continues to serve as Sec of State
§ Commissions need to be delivered to the judge before Jefferson becomes president. The commissions do not get delivered.
§ Raging dispute about the federal judiciary act à Congress makes law that S Ct won’t meet until 1803
§ Marbury and former AG under Adams ask S. Ct. to perform a “writ of mandamus” à not at all known whether you can order another branch to do something
– The case:
o No cause has been shown for why the commission could not be delivered
o Jefferson and the AG completely ignored the lawsuit
o 3 questions posed by the court:
§ has the applicant a righ

s of the meaning of the Consitution.

The Sources of Judicial Decisions: Text, “Representation-Reinforcement” and Natural Law
McCullough v. MD (1819):
– Alex Hamilton felt it was important to have the federal bank to regulate currency..
– Very controversial, the populist were very suspicious of the idea of a national bank (Jefferson and his agrarian backers oppose the bank)
– This case involves the 2nd national bank à war of 1812, Enlish come and invade and burn down the White House country virtually almost collapsed again and the economy went into the tank and the national bank was viewed as a good mechanism for getting us out of the economic down turn.
– MD decides if they can’t block it they will tax it
– McCullough (D) cashier of the Balitmore brand of the US Bank, issued bank notes in violation of a Maryland (P) statute providing that no bank without authority from the state, could issue bank notes except on stamped paper issued by the state
MD argues that Art. I Sec. 8 the power to incorporate a bank is not enumerated. Additionally argues the 10th amendment, that powers not delegated to the US by the constitution nor prohibited by it to the states, then is reserved for the states.

1) Does congress have the power to incorporate a bank?
2) Does a state have the power to impose fees on the operation of an institution created by Congress pursuant to its constitutional powers?
– 1) certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the necessary and proper clause
– 2) the federal constitution and the law made pursuant to it are supreme and control the Constitutions and laws of the states
Holding and Decision:
1) Yes. Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the necessary and proper clause. The Constitution does not exclude incidental or implied powers, does not require that everything be expressly and minutely described. To do so would make the constitution like a legal code.
a. Marshalls use of the Necessary and Proper clause:
i. Common usuage, “convenient, useful, or essential”
ii. Structural usage in the Constitution
iii. Not a specific term, framers wrote in generalities
iv. View today is that the necessary and proper clause only gives power to Congress to enact laws that are necessary and proper to those delegated already in the Const. but Marshall attempts to argue that the clause grants additional power
v. Once the court decides that the law is necessary, the degree of convinience or usefulness is then determined by Congress not the courts
2) No. The federal Constitution and laws made pursuant to it are supreme and control the Constitutions and the laws of the states. Federal government derives its power form the people not the states. Maryland’s statute in effect taxes the operation of the US Bank, properly created in Congress’ power. The power to tax involves the power to destroy, in opposition to the congressional power. That states have no power, by taxation or otherwise, to impede, burden or in any manner control the operation of constitutional laws enacted by Congress. That statute is therefore unconstitutional and void.

Comstock – issue whether the federal government has the power to civilly commit sexual offenders. à Necessary and proper case.

Calder v. Bull (1798): Connecticut legislature ordered in a new trial in a will contest, setting aside a judicial decree. The court unanimously held that the legislature’s action was not “ex post facto law” forbidden to the State by Art. I Sec. 10 à Role of natural law in constitutional law debated
Chase: there is an unwritten Constitution consisting of principles of natural law, which is enforceable as against the states even though it cannot be found in the Constitutionà in the end however legislature’s action upheld