The Courts and the Constitution

1. The Courts and the Constitution The D.C. Gun Case District of Columbia v. Heller (2008) © 2009 The Florida Law Related Education Association, Inc. Graphics from http://passtheammo.com/wp-content/uploads/high-court-guns.jpg

2. The Role of the 3 Branches of Government Enforces the law Interprets the law Makes the law

3. It is the responsibility of judges to interpret the law. Interpret: To give or provide the meaning of something, whether it be a statement, a word, a phrase, or even an entire law or amendment.

4. There are parts of the Constitution that do not need interpreting.What are some examples? “No person shall be a Senator who shall not have attained the age of thirty years…” “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

5. But, there are also parts of the Constitution that do need interpreting.What are some examples? “unreasonable searches and seizures” “freedom of speech” “right to bear arms”

6. The Decision Making Process • Judges should make decisions based on the law, which makes them different from other elected government officials, such as legislators. • Legislators make decisions based on the desires of constituents and voters and their personal preferences. • Judges must follow the law and should not be influenced by politics or the public’s feelings, or substitute their own personal feelings for the law.

7. How should judges interpret the Constitution?

8. Most Important Interpretive Device Precedent Previous court decisions in which legal issues are decided

9. Other Interpretive Devices • Literal or plain meaning of words • Intention of the Framers of the Constitution • Basic constitutional values and principles (natural rights, limited government, representative government, etc.) • Contemporary social values and needs

10. Let’s take a look at this rule for example: Once you enter the school, you are not allowed to leave the Campus.

11. Once you enter the school, you are not allowed to leave the Campus. • Precedent • Literal meaning • Intention of the creators of the rule • Basic school values and principles • Contemporary social values and needs

12. Now that we have interpreted a rule, let us try to interpret the Second Amendment of the Constitution.

13. Second Amendment A well regulated militia, being necessary for the security of a free state,the right of the people to keep and bear arms, shall not be infringed.

14. The Second Amendment Creates Four Interpretation Issues • Definition of certain words. • The prefatory and operative clauses. • The phrase “right of the people.” • The concept of an inherent right.

15. Issue 1:Definitions Militia: A part of the organized armed forces of a country liable to call only in emergency; body of citizens organized for military purposes Infringed: To encroach upon in a way that violates law or the rights of another Could the words have different meanings today than they did over two hundred years ago? Definitions from: http://www.mirriam-webster.com/dictionary

16. Second Amendment A well regulated militia, being necessary for the security of a free state,the right of the people to keep and bear arms, shall not be infringed.

17. 2nd Amendment Issue 2: Clauses 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.

18. In cause and effect terms… CAUSE / PURPOSE A well regulated militia, being necessary for the security of a free state,the right of the people to keep and bear arms, shall not be infringed. EFFECT / ACTION

19. In other words…Is the militia the only purpose for having the right to bear arms, or is this only one of the purposes for having the right to bear arms?Do you think the right to bear arms still exists separately from the need for a militia for security?

20. What if it had been written a little differently…..

21. What do you think….

22. What does this really mean? Prefatory Clause Operative Clause 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.

23. Issue 3 “right of the people” First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress or wrongs.” Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

24. Second Amendment:A well regulated Militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.

25. In previous cases involving the First, Fourth, and Ninth Amendments, the words, “right of the people,” have been interpreted to mean an individual right. Individual Right: Specific rights that belong to each person, such as those listed in the Bill of Rights

26. Do you think this means that the Second Amendment should be interpreted as an individual right, since it also contains the words “right of the people”?

27. Issue 4 Inherent Right: Those rights with which you are born and are not necessarily expressly stated. Would self-defense be an inherent right? If so, would an individual right to bear arms be necessary for the inherent right of self-defense?

28. With all these issues in mind, how would you interpret the Second Amendment? To interpret is to give or provide the meaning of the amendment

29. Is it a right to have arms only while in the military or in the police? Is it an individual right of the people to have arms? OR

30. How has the Second Amendment previously been interpreted?

31. United States v. Miller, 307 U.S. 174 (1939) • Miller was arrested for transporting a double-barrel shotgun with a barrel shorter than 18 inches because • the shotgun was unregistered, and • Miller did not possess a stamp indicating that a tax for the firearm had been paid.

32. United States v. Miller • Miller contended that the federal statute which implemented these requirements violated the Second Amendment. • The federal district court agreed with Miller and quashed (set aside) the charges that had been filed against him.

33. United States v. Miller • The United States Supreme Court reversed the District Court. • The Court noted that the purpose of the Second Amendment was to assure the continuation and effectiveness of the militia. Therefore, the Second Amendment must be interpreted with this goal in mind. • No evidence had been offered to demonstrate that a short-barreled shotgun bore a reasonable relationship to the preservation or efficiency of a well-regulated militia.

34. United States v. Miller • The Court noted that this kind of weapon is not part of the traditional military equipment, nor would the use of such a weapon contribute to the “common defense.” • For this reason, the Second Amendment does not guarantee the right to bear “such an instrument.”

35. How is the federal court system structured today?There are three basic levels of federal courts:- The District Courts (trial courts) - The Circuit Courts (courts of appeals) - The Supreme Court (highest court in the nation)- Review by this Court is for the most part discretionary

36. After the Supreme Court’s decision in Miller, most federal appellate courts concluded that an individual right did not exist under the Second Amendment—rather, the right to bear and keep arms was directly tied to a well-regulated militia.

37. U. S. v. Oakes, 564 F.2d 384 (10th Cir. 1977) • Ted Oakes was convicted of knowing possession of an unregistered machine gun. • Oakes contended on appeal that his prosecution violated the Second Amendment because every citizen has an absolute right to keep arms and, even if the right to bear arms applies only to an organized militia, he was technically a member of the Kansas militia.

38. U. S. v. Oakes, 564 F.2d 384 (10th Cir. 1977) • The circuit court noted that purpose of the Second Amendment is to preserve the effectiveness and assure the continuance of the state militia (relying upon Miller). • Oakes did not demonstrate that an unregistered machine gun had any connection to the militia. • Therefore, the prosecution of Oakes did not violate the Second Amendment, and his conviction was affirmed.

39. Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995) • April Love completed an application to purchase a handgun. The state police denied her application due to her prior arrest record. Love sued, and the state trial court ordered the police to approve her application. • Love then filed a civil rights action in federal court alleging that the state police infringed up her Second Amendment individual right to keep and bear a handgun. The state police filed a motion to dismiss the case, and the district court granted the motion.

40. Love v. Pepersack, 47 F.3d 384 (4th Cir. 1995) • Love appealed the dismissal, and the circuit court affirmed on the following bases: - The Second Amendment does not apply to the states, only the federal government. - The Second Amendment preserves a collective right which must bear a reasonable relationship to the preservation or efficacy of a well-regulated militia. Since Love did not identify how her possession of a handgun served these purposes, she was not entitled to relief on her claim.

41. U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997) • Donald Wright was arrested for possession of machine guns and unregistered destructive devices, including pipe bombs. • Wright filed a motion to dismiss the charges, contending that the statute under which he was charged violated the Second Amendment.

42. U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997) • The district court denied Wright’s motion to dismiss. Wright pled guilty to the charges while reserving his right to appeal. • On appeal, Wright alleged the that relevant statutes violated the Second Amendment. The circuit court rejected Wright’s claim. • “[The Second] Amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states.”

43. U.S. v. Wright, 117 F.3d 1265 (11th Cir. 1997) • Since Wright could not establish a reasonable relationship between the machine guns or the pipe bombs that he possessed and the preservation and efficacy of the Georgia militia, he was not entitled to protection under the Second Amendment.

44. U.S. v. Pfeifer, 371 F.3d 430 (8th Cir. 2004) • Robert Pfeifer pled guilty to the charge of possession of a rifle after being convicted of a misdemeanor crime of domestic violence. Pfeifer appealed his conviction and contended that the federal statute under which he was convicted was unconstitutional because it interfered with his right to bear arms.

45. U.S. v. Pfeifer, 371 F.3d 430 (8th Cir. 2004) • The circuit court affirmed Pfeifer’s conviction, stating, “We have held that the Second Amendment does not guarantee the right to possess a firearm unless the firearm has some reasonable relationship to the maintenance of a militia.” • Since Pfeifer did not assert that such a relationship existed, the circuit court rejected his challenge.

46. So, did all federal appellate courts agree with regard to the interpretation of the Second Amendment?Answer: NO

47. U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) • During divorce proceedings, the trial court issued a temporary injunction that prohibited Timothy Emerson from threatening his wife or his children with, or causing them, bodily harm.

48. U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) • While the order was in effect, Emerson purchased a handgun. Emerson was subsequently arrested for violating a federal statute which provides that a person who is subject to a restraining order that prohibits the use or threatened use of bodily harm against a partner or child may not possess a firearm which has been transported across state lines.

49. U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) • The district court dismissed the charges on the basis that the statute violated the Second Amendment. • The circuit court reversed the dismissal. Unlike the other federal circuit courts, the Fifth Circuit held that United States citizens have an individual right under the Second Amendment to keep and bear arms.

50. U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) • The Fifth Circuit concluded that the United State’s Supreme Court’s decision in Miller was limited to its facts. The Supreme Court there merely held that a sawed-off shotgun is not the type of weapon that the Second Amendment prohibits infringement of the right of citizens to keep and bear. • Handguns, on the other hand, are suitable as personal, individual weapons, and thus do not fall into the category of weapons that are excluded from Second Amendment protection under Miller.