 and the interpretation most faithful to the history of its adoption.
· Dissent (Breyer): 2nd Amend protects militia-related interests, not self-defense-related interests. It permits gov’t to regulate the interests that it serves. Colonial history important examples of the kinds of gun regulation that citizens would then have thought compatible with the right to keep and bear arms – substantial regulation of firearms in urban areas, and regulations that imposed limitations on the use of firearms for the protection of the home. True strict scrutiny standard for evaluating gun control regulations is impossible – adopt an interest-balancing inquiry. In applying this kind of standard the Ct normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and institutional fact-finding capacity.
BLR: The DC Code’s (1) general bar against the registration of handguns, (2) prohibition against carrying a pistol without a license and (3) requirement that all lawful firearms to be kept unloaded and either disassembled or trigger locked violate rights of individuals under the U.S. Constitution’s 2nd A, which permits individuals to keep handguns and other firearms for private use in their homes, even though they are not affiliated with any state-regulated militia. This is a landmark case since it is the first SCOTUS case ever to deal directly with whether the right to keep and bear arms is a right of individuals, in addition to being a collective right that applies only to state-regulated militias. 6 original πs, and all but Heller were found to not have standing by the C of A, Heller was the only π who had been denied a permit for a handgun.
DC v. Heller (more)
Source/Modality
Majority
Stevens Dissent
Text – Present Day Meaning
The 3 other provisions of the Const Amends protect even felons.
History – Original Meaning
Contemporary dictionaries: Weapons used for defense, not just military purpose.
Historical context, purpose: “During the 1788 ratification debates, the fear that the fed gov’t would disarm the people in order to impose rule through a standing army or select militia was pervasive in Anti-federalist rhetoric…” Amend: “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. In any case, what JUSTICE STEVENS would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights.”
Oxford Dictionary (1989): Bear arms means for military purposes.
During the ratification of the 2nd A states were worried about tyranny from federal gov’t so it was state’s right to protect themselves through militia.
“Madison’s initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amend. It confirms intent to describe a duty as well as a right, and it unequivocally identifies the military character of both.”
“Neither the text of the Amend nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amend intended to enshrine the common-law right of self-defense in the Constitution.”
Structure
(combined with history)
“There are many reasons why the militia was thought to be ‘necessary to the security of a free state’” one of which is to enable the people “to resist tyranny.” But “if petitioners are correct, the Second Amend p
they can violate it – it is binding until it is changed
· The idea that the Supreme Court would have authority to invalidate actions by other gov’tal actors that contravened limits the Constitution established was hardly unknown to the framers and ratifiers in 1789
· Theory – Not good for Congress to make law and decide if law is constitutional
Marbury v. Madison – Established authority for judiciary to review constitutionality of executive and legislative acts
· Constitution is silent as to whether fed courts have this authority but the power has since existed
· Look a Judiciary Act of 1789
· Facts: 1 wk before end of Pres Adam’s term, Congress adopted act which authorized Pres. to appoint 42 justices of the peace. Adams announced his nomination day before Jefferson’s inauguration. Secretary of State and Chief Justice John Marshall signed commissions for the individuals and dispatched James Marshall to deliver them. Marbury’s commission was not delivered before inauguration and Pres. Jefferson instructed his secretary of state to withhold undelivered commissions. Marbury filed suit in SC seeking writ of mandamus to compel Madison to deliver commission
· Mandamus is appropriate remedy BUT Supreme Court has original jurisdiction in this case according to the Constitution. In order to issue mandamus, it must be an exercise of appellate jurisdiction. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Art 3.
· Held: Could not const’lly hear the case as a matter of original jurisdiction
· Analysis:
o Does Marbury have a right to the commission he demands? YES
§ Ct first determined whether he has been appointed to the office in order to determine whether he is entitled to the commission. Ct decides that when a commission has been signed by the president and a US Seal has been affixed, the appointment is made – Ct held delivery was not required
o If so, and that right has been violated, is there a remedy for Marbury?
§ “where there is a legal right, there is also a legal remedy”
§ Appointment of officers is a power exercised by the President. Unless the officer is removable at the will of the President, his acquired rights are protected by the law à Ct finds that Marbury has a right to the commission and a refusal to deliver is a violation of that right which affords him a remedy
o Is the issue justiciable? Is it an issue for the court to decide? YES (bc it involves the delivery of the apt – simply an administerial act BUT THEN you have to look at § of Judiciary Art
o BLR: SCOTUS has the power, implied from Art. VI § 2 of the Constitution, to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.
2.2: Cases and Controversies
Judicial Sovereignty – The idea that a law may be held unconstitutional if the Court thinks it is, even though the case is not plain, and that the Court’s opinion to this effect is binding on other branches of gov’t
Limits on Judicial Sovereignty
1. Judges may be impeached for treason, bribery, or other high crimes and misdemeanors under Art 2 § 4
2. Art 3 limitation of judicial authority to “cases and controversies”
3. Doctrine of nonjusticiable political questions”
Marbury – Courts may only decide actual disputes between real parties, not simply weigh in with advice on great questions of the day.
Correspondence of the Justices (1793)
· General Rule against “advisory opinions”
o Opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law
· Justices cannot answer Jefferson’s questions
o Request from President is NOT a case
Case or Controversy (Article 3 Sec 2)
· Case does not exist unless P has standing to sue
· P must have a personal stake in the litigation in order to bring suit
Elements of Standing (the right to bring the suit to determine that cause of action exists)
· Injury
· Causation/Traceability
· RedressabilityRenoir Shirt Summer ’18
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We visited two factories: Kangso Mineral Water Factory near Pyongyang and a food preserves factory near Pyongsong. While the former, a small factory, was working quite dynamically, we found the