CONSTITUTIONAL LAW JOHNSTONE FALL 2012
INTRODUCTION
I. “We the People … do ordain and establish this Constitution,” Preamble.
LAW
· PREAMBLE: “We the People … do ordain and establish this Constitution for the United States of America.”
· ART. VII: “The Ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution …”
A. Judicial Review and Democracy (1.1:12-13)
1. Bickel, The Least Dangerous Branch (1962)
When the S.C. declares a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now. It exercises control against the will of the prevailing majority. Judges need not be responsible for democratic theory.
The policies they make are or should be interstitial or technical only and are reversible by legislative majorities.
2. Choper, The Supreme Court and the Political Branches (1974)
When Supreme Court finds legislative acts unconstitutional it holds invalid only those enactments that have survived the many hurdles fixed b/t incipient proposals and standing law.
3. Friedman, The Will of the People (2009)
The judiciary’s capacity to give the Constitution meaning to protect minority rights always has been limited by popular support for those decisions. Judge Learned Hand insisted,” Liberty lies in the hearts of men and women; when it dies there, no constitution, no laws, no courts can even do much to help it.”
What matters is the how the public reacts to the decisions of the Supreme Court.
INTRODUCTION
II. “[T]he right of the people to keep and bear Arms,” Amend. II.
LAW
· PREAMBLE: “We the People … do ordain and establish this Constitution for the United States of America.”
· ART. VII: “The Ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution …”
· Amend. II: “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.”
· Amend. XIV: “No State shall …”
GENERAL IDEAS:
· Second Amendment
A. The Right to Keep and Bear Arms (6.3:292-304)
1. District of Columbia v. Heller (2008)
Facts: Heller couldn’t possess handgun due to D.C. statutes prohibiting ownership. Holding: Statute is unconstl b/c it inhibits the right to Keep and Bear arms (Scalia). Constl originalist interpretation.
ARGUMENT
Opinion (Scalia) – Pro Right to Bear Arms
TEXT
Clear and unequivocal in meaning to protect all rights to “keep arms” and “bear arms” even those not in existence at time of writing.
STRUCTURE
2nd A: broken into two clauses Prefatory and operative clause (no link req.):
Prefatory clause: “A well-regulated Militia, being necessary to the security of a free State…”
The Prefatory clause concerns militias, and cannot negate the operative clause, limit it but rather announces a purpose.
U.S. v. Miller (1939): Militia defined: “the Militia comprised all males physically capable of acting in concert for the common defense.”
Operative Clause: “Right of the People” i.e. “Right to bear arms”
As mentioned in the 1st, 4th Amends., and similar language in the 9th Amendments, theses unambiguously refer to individual rights, not “collective” rights.
The Operative Clause guarantees the individual right to possess and carry weapons in case of confrontations.
HISTORY
English Right: a person has the right to bear arms for protection
PRECEDENT/
PRACTICE
Historically interpreted to protect the right to have guns for a reasonable purpose (U.S. v. Miller).
PRINCIPLE
The District's requirement that firearms in the home be rendered and kept inoperable at all times makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.
POLICY
Protects a right to have guns for personal safety, especially in the home.
OTHER THINGS
Two years later in McDonald v. City of Chicago, (another 5-4 margin case); the Court held that the Second Amendment is incorporated into the Fourteenth Amendment and does extend to state and local governments.
DISSENT
J. Argument:
J.Stephens:
Framers didn’t intend to enshrine the common-law right of self-defense in Constitution.
· History: 2nd A adopted to protect the right of the States to maintain military
· Text: No support for a limit to regulate private civilian uses of firearms
· Precedent: Miller, protected military use, not own personal ownership of guns.
J. Breyers:
B/C of handgun violence in the United States, a reasonableness test should be used; the deference should be given to the legislatures, not the courts, where the legislature has particular knowledge of the local problems that exist in their states
STRUCTURE
· prefatory and operative clause must be linked
PRECEDENT/
PRACTICE
Drafting language of the Framers rejected proposals that would have broadened its coverage to include such uses.
The Framers did not intend for the Second Amendment to incorporate the common-law right of self-defense in the Constitution.
No evidence that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons.
PRINCIPLE
All past Court decisions have read the Second Amendment to protect only a right to have guns for the purpose of militia service.
2. McDonald v. City of Chicago (2010)
McDonald v. City of Chicago (2010):
Facts: Four plaintiffs including McDonald were Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago's firearms laws. A city ordinance provides that “no person shall possess any firearm unless such a person is the holder of a valid registration certificate for such firearm,” the code then prohibits registration of most handguns, effectively banning handgun possession by private citizens. (P) argues that Chicago laws violate the right to keep and bear arms for two reasons;
1. The right is among the “privileges or immunities of citizens of the U.S.; and
2. The Fourteenth Amendment's Due Process Clause “incorporates” the Second Amendment right.
Issue: Does “No state shall” guarantee incorporation of 2nd A rights?
Held: The Court took a Due Process analysis, and determined that the right to bear arms is within our liberty because it is:
1. Fundamental to scheme of ordered liberty; and
2. Deeply rooted in our country’s tradition.
ARGUMENT
Opinion (Alito)
HISTORY
Self-defense is a basic right, deeply rooted in our culture and tradition.
· Heller
· Blackstone
· States adopted right to bear arms statutes.
PRECEDENT/PRACTICE
· Most of the Bill of Rights apply full force to both fed gov’t and States.
· Analysis of 14th A. rights is under DP cl and not “privileges and immunities.”
· Can still limit type of weapon kept and use of weapon under 2d A.
HISTORY
Concurrence: (Scalia) (Thomas)
(Scalia) Majority approach is rooted in history and the 2d A.
(Thomas) Framers saw privileges and immunities as synonyms for rights.
· Right to bear arms should be part of “privileges and immunities”, not DP.
DISSENT
Dissent: (Stevens) (Breyer, Ginsburg, Sotomayor)
BGS: No textual support for 2d Amend. incorporation in 14th Amend.
BGS: When history provides no clear answer, look at other factors to determine whether a right is fundamental, including:
· Extent to which incorporation will further other const’l aim;
· Extent to which incorporation will advance or hinder Const’s structural aims.
BGS: Heller self-defense right is not fundamental.
· Right to keep a firearm infringes on right to safety.
· Balance of liberty interests.
· Cts decision invites and avalanche of litigation.
“American perspective” (discounting foreign allies’ experiences) = weakness.
3. Posner, In Defense of Looseness (2008)
Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction. And loose construction is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.
LEGISLATIVE POWERS
LAW
· ART. I, § 1: “All legislative Powers herein granted shall be vested in a Congress…”
· ART. I, § 8: “The Congress shall have Power … To lay and collect Taxes… to pay the Debts and provide for the common Defense and general Welfare of the United States … And To make all Laws which shall be necessary and proper … for carrying into Execution … Powers vested by this Constitution in the Government of the United States.”
· ART. I, § 8: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and
private entities or actors.
· Legislation that reaches beyond the scope of Section 1’s guarantees of due process and equal protection must exhibit “congruency and proportionality” between the injury to be prevented or remedied and the means adopted by Congress to that end. See City of Boerne
· Rule: There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
o Path: § 5 is about remedial action: free exercise of religion (located in the first amendment) is found within “Liberty” this is a Substantive Due process. Give power to enforce the Fourth Amendment.
o Art. I: Free exercise (of religion) à Amendment XIV: substantive due process (§ 1) à Amendment. XIV: “enforce with appropriate legislation (§ 5).
Test Analysis: See Boerne
Current burdens must be justified by current needs
Question: Is the Law based on the enforcement power of the Fourteenth and Fifteenth Amendments? If so, the law must be not only be:
1. Remedial—remedying state discrimination; and
2. Congruent and proportional to the remedy allotted.
a. Congruent: something about the “fit” – where the problem is; where the solution is. It’s a balancing test.
i. Is it Geographic / Location Specific?
b. Proportional:
i. What is the scope of the constitutional right in issue?
1. Helps Court determine whether Section 1 places any limitations upon the States’ treatment of the class of people claiming a constitutional violation.
ii. What is the conduct that Congress considers unconstitutional?
1. Congress must do due diligence and provide a legislative record that affirmatively identifies irrational discrimination by the States towards the class.
a. Ex. In the Voting Rights cases, the unconstitutional conduct was flagrant, pervasive, and widespread and subject to correction based on the actual guarantees of Section 1.
2. Does the law meet scrutiny?
a. RFRA prohibited “government from substantially burdening a person's exercise of religion even if the burden resulted from a rule of general applicability unless the government could demonstrate that burden to (1) further a compelling government interest; and (2) as the least restrictive means of furthering that compelling government interest.
3. If Test Not Met: Private individuals may recover money damages against the States.
Criticize: The court says that they are suspicious of the courts deciding rules. We are suspicious of Congress when they go back on what the court says. Congress has no business saying what the constitution means. They can remedy it, but they can’t change substance
A. NP Clause: Sources and Nature of Congressional Powers (2.1:30-37)
1. McCulloch v. Maryland (1819)
Fact: Maryland enacted a statute to tax the national bank. Important case defining scope of federal legislat ive power and relationship governing state authority.
Issue: Does Maryland have power to collect tax from Bank of U.S.?
Rule: Yes, In order to determine whether the “Necessary and Proper Clause” grants Congress the legislative authority to enact a particular federal statute, the Courts look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”
App: the power given to Congress through the Constitution was done so in a manner that allows Congress to exercise discretion with respect to the means by which the power it confers are to be carried into execution.
