Constitutional Law I Outline

CONSTITUTIONAL LAW
Mazzone
Spring 2017
 
THE DOCUMENT AND THE DOCTRINE
Constitution (ratified in 1789): 7 articles, 27 amendments (1-10 = Bill of Rights)
Articles:
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
Constitutional Claim:
Provisions of D.C. law prohibiting possession of handgun in home violate the:
2nd amendment
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
Holding:
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.
 
Take aways:
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
 
Questions/ Problems:
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
Marshall’s rationale:
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
(Taxation)
Article 1, Section 8, Clause 2:
To borrow money on the credit of the United States.
(Borrow $)
Article 1, Section 8, Clause 12:
To raise and support Armies, but no Appropriation of Money to that Use shal