THE DOCUMENT AND THE DOCTRINE
Constitution (ratified in 1789): 7 articles, 27 amendments (1-10 = Bill of Rights)
1, 2, 3 – apply to branches of fed. gov’t.
4 – relationship among the states
5 – how to change/amend
6 & 7 – wrap-up provisions (6: how to get this up & running after Philadelphia Convention)
District of Columbia v. Heller (2008, Scalia, 5-4)
D.C. code prohibits possession of handguns if unregistered
Also cannot register, need a license
Heller’s problem: 2 impediments to self defense
Provisions of D.C. law prohibiting possession of handgun in home violate the:
Right to 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.
Court addresses the disagreement between the prefatory and operative clauses
Prefatory Clause: “Well regulated militia, security of free state:
Operative Clause: “Keep and Bear Arms”
Heller wants the gun in his house on the basis of self-defense
1791 militia men: well defined at that time
Heller is not claiming that he has a right to the handgun in a militia sense
Heller prevails because the majority says it is an individual right
The operative clause guarantees the individual right to possess and carry weapons in case of confrontation
Majority: The prefatory clause, in relation to the operative clause (the right to keep and bear arms) is not one of limitation
The prefatory clause gives a reason for protecting that right, but the right is individual (vs. Stevens’ dissent = saying prefatory clause (militia) limits operative clause (right to bear arms)
Scalia concerned w/ORIGINAL PUBLIC MEANING of what text actually meant at the time (looks at variety of historical sources such as state constitutions)
Why is it an individual right?
The court contrasts militia with the people
Use of the people in 1st and 9th amendment shows how people have been interpreted since the Constitution
Everyone agreed before and after the Constitution that the individual right
The most likely reading of all four of these pre-second Amendment state constitutional provisions is to secure an individual right to bear arms for a defensive purposes
What is protected by the individual right is the right to possess a handgun because they’re the weapons of choice today
District’s ban on handgun possession violates the 2nd Amendment
The district must permit Heller to register his handgun and must issue him a license to carry it in the home.
Decisive: not claiming right to possess in connection to militia
Wanted to keep at home for self-defense
Textual analysis of the 2nd Amendment
The 2nd Amendment protects the individual right disconnected from the militia
There is a relationship between the prefatory and operative clauses, but not one of constraint
The prefatory clauses announces a reason for including this right in the Constitution
Protecting new nation from governmental tyranny
Individual right is not tied to the militia
Does this opinion mean that the individual right that has now been stated by the Supreme Court is unlimited? Are there limits? Are grenades protected, etc? What are the limits? Where do they come from?
P. 23- Sensitive place, schools, government building, felons, mentally ill are all LIMITS
Practice problem: So what about when Samantha wants to bring her rifle to the grocery store?
Nothing in the decision indicates that your individual right to self defense ends when you leave the home
If the concern is self defense, inevitably you must have some ability to take it with you outside the home
Scalia’s notion of why the handgun is protected by the second amendment is because it is the weapon of choice for self defense
So as far as this rifle, you’d have to prove how/why this weapon should be allowed for self defense as well
Fear: weapons like grenades become “common” and then who can stop those from being the next “handgun?” Weapons protected are those in common use at the time.
AN EARLY CASE STUDY: THE BANK OF THE UNITED STATES
Note on the First Bank
James Madison’s Speech on the Bank (Representative)
Madison (against bank)
Fearless of strict reading of what powers are
Nothing about a bank in there, so they can’t do it
Opinions of Edmund Randolph (Attorney General), Thomas Jefferson (Secretary of State) and Alexander Hamilton (Secretary of Treasury) on the First Bank
Randolph (against bank)
To imply bank would give government too much power
“Proper” limits power of Congress
“Necessary” should be read narrowly
Concerned that if the power to make a federal bank is stretched out of the current Constitution, any and all clauses will be stretched
Jefferson (against bank)
Proposal at Philadelphia Convention rejected it so it can’t be read into the powers given
Strict reading of necessary and proper clause as limiting powers
There is a difference between necessary and convenient
Hamilton (for bank)
Federal government has sovereign authority
Has rights to means (bank) to end (tax)
Necessary and proper- necessary means useful
If it’s useful in pursuit of other enumerated powers, it’s ok
Sees “necessary and proper” clause as one giving a liberal latitude to the exercise of specified powers
The relation between the measure and the end, between the nature of the mean employed towards the execution of a power and the object of that power must be the criterion of constitutionality, not the more or less of necessity or utility
Ultimately finds the power in the necessary and proper clause
Washington signs bill into law.
Note on the Second Bank
Congress votes to establish the Second Bank of the US in response to economic trouble during and after War of 1812
Madison as President, signs bill for Second BankMcCulloch v. Maryland (1819, Marshall, 7-0)
Two questions in opinion:
Does Congress have the power to incorporate a bank? YES
Can the State of Maryland tax this federal entity? NO
Whenever Congress acts it must be able to point to a power in the Constitution.
Does Congress have power to do this?
Federal government is a government of limited/enumerated powers
10th amendment- powers reserved to states
If power is not delegated to the national government, it belongs to the states
Article 1 Section 8
A list of things Congress is allowed to do
Why does Congress need a bank?
Want a uniform system in various states
Reliance upon current banks costly and inefficient
Necessary and proper for carrying into execution the foregoing powers
Which foregoing powers give rise to argument that bank is necessary and proper?
Article 1, Section 8, Clause 1:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States
Article 1, Section 8, Clause 2:
To borrow money on the credit of the United States.
Article 1, Section 8, Clause 12:
To raise and support Armies, but no Appropriation of Money to that Use shal
itutional (quoting: “Congress have constituional authority to establish from time to time such inferior tribunals as they may think proper…”) Const. only requires a Supreme Court.
Marbury v. Madison
Only recently that this case is known for establishing judicial review
Marbury: appointed to be justice of peace
Supreme Court, please issue an order to Madison to explain why a mandamus should not issue (why this court should not order you to deliver the commission)
Madison does not respond, never shows up in court
Now Marbury wants the court to issue an order that Madison has to deliver the commission
§13 Judiciary Act of 1789- Sets out details of Supreme Court, gives Supreme Court power to issue writ of mandamus
Why is it unconstitutional?
Violates Article 3, Section 2, Clause 2
Jurisdiction of Supreme Court
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make.
Issuing this writ is inherently original jurisdiction, he started in the Supreme Court, the Constitution limits the scope of cases to start in the Supreme Court to the list in Article 3, issuing writ of mandamus is not on this list
Congress is seeking under §13 to expand the Supreme Court’s original jurisdiction and it cannot do that (judicial review)
Why does Marbury need the commission?
Legally he is already Justice of the Peace without the document
But he wants to show others
When he goes out to make use of his powers he has as Justice of Peace, he has to show it to demonstrate the legitimacy of his office
Marshall: we can’t help you because of unconstitutionality of §13 of Judiciary Act of 1789
Why is it the job of the Supreme Court to decide on the constitutionality and refuse to enforce something?
This is a deeply offensive idea to Congress
Constitution is a superior act to any ordinary act of the Legislature
Marshall: Constitution, based on the Supremacy Clause is the Supreme Law of the Land
In the list in the supremacy clause, the Constitution comes first
Courts AND the legislature are bound by the Constitution
Article 6, Section 1, Clause 3
Oaths of Office
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the U.S. and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the U.S.
The oath of office was imposed by the legislature: Congress created this oath
If you’re a member of Congress you take the same oath to uphold the Constitution