Constitutional Law II Outline
Seamon
Fall 2016
The Right to Keep and Bear Arms
“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.” 2nd Amendment.
Collective Rights
Secures to states the right to continue to organize and maintain an armed militia of citizens, which could be mobilized into a military force for the defense of the nation in time of need.
Individual Rights
Ensures the individual’s rights to possess firearms or any number of reasons.
District of Columbia v. Heller
The second amendment extends to all instruments that constitute bearable arms, even those that were not in a military capacity.
This right is exercised individually and belongs to all Americans.
Not a right granted by the Constitution, nor is it in any manner dependent upon that instrument for its existence.
A right to carry arms in defense of his property or person, and to use them if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either. (Natural right of self-defense)
Not an absolute power, can be regulated.
Courts will consider
The extent of the restriction
Government interest in the restriction
Extent the restriction furthers the government’s interest
“sensitive place”
A public school can ban students from bringing tasers to school because it is a sensitive place.
Due Process
No person shall be deprived of “life, liberty or property without due process of law.”
This applies to both federal government (4th Amend.) and the States (14th Amend.).
Procedural Due Process
2-Step analysis
Does the law or other government action trigger a person’s right to due process?
If so, what process is due?
This asks whether additional or different procedures from existing ones will improve accuracy – i.e., reduce risk of erroneous deprivations.
What interests are due?
Property
Traditional forms (land, chattels, $)
New Property – existence depends on a legitimate claim of entitlement (government benefits, etc.)
Continuing government benefits
Disability
Food stamps
Non at-will gov. employee
Licenses
Cleveland Board of Education v. Loudermill, pg. 458
Minimum procedural requirements must be proper
Court rejects “bitter with the sweet”
Legitimate does not equal “wholly discretionary
Liberty
Traditional conception of liberty for PDP purposes – freedom from physical restraint on coercion.
Process that is due
Private interest
Risk of erroneous deprivation
The government interest
Rules of the Road
Pg. 470, Note 3 – generally a requirement of notice
Notice and hearing seldom needs to be as elaborate as a trial, only need an adequate opportunity for post-deprivation remedy.
HYPO
Student is expelled from law school for allegedly cheating
Is there a protected interest?
Property (legitimate claim to continued education)
A liberty interest may exist (this is more difficult)
What process is due?
Notice and opportunity to be heard
Consider the interest in both the person and the school.
Matthews & Eldridge analysis
The private interest that will be affected by the official action
The risk of an erroneous deprivation of such interest through the procedures used, the probable value, if any, of additional or
egitimate state interest.
Incorporation of Bill of Rights guarantees into the due process clause of the Fourteenth Amendment is another form of substantive due process.
Griswold v. Connecticut
Connecticut made it a crime to use any drug, medicinal article or instrument for the purpose of preventing conception.
This law operates directly on the intimate relationship of husband and wife.
While association is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.
In forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.
Roe v. Wade
This right of privacy, whether it be founded in the Fourteenth Amendment’s conception of personal liberty, as we feel it is, or in the Ninth Amendment, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
Where certain fundamental rights are involved, the Court has held that regulation limiting these rights may be justified only by a compelling state interest, and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.
Decided not to address the question of when life begins.
Pre-viability vs. Post-viability
Black letter law
