Agenda for 12th Class

1. Agenda for 12th Class • Handouts • Slides • Readings: “Gun Rights after Heller” • 2nd Writing Assignment • Name plates • Review of Last Class • Gun Rights in the 20th Century (continued) • Heller

2. Assignment for Next Class • Review any questions from today’s assignment that we don’t discuss in class • Read “Gun Rights after Heller” packet • Questions to think about / Short papers • Everyone should be prepared to discuss all the questions on the last 2 pages of the “Gun Rights after Heller” handout • Mandatory writing • Group 5. Qs 1 & 5 • Group 6. Qs 2 & 6 • Group 7. Qs 3 & 7 • Group 8. Qs 4 & 8 • Optional writing -- All questions that are not mandatory • 2nd Writing Assignment • Due Thursday, 2/28 at 5PM • No Blackboard Questions

3. Gun Rights in the 20th Century • US v Miller • Govt can heavily regulate short-barreled rifles, because they are not “ordinary military equipment” • US v Tot and US v Waring • Collective right rather than individual right • Reasonable regulations ok • Structure of Constitutional Rights • US Constitution is “Supreme Law of the Land” • State or federal statue contrary to constitution is void • Supreme Court can declare statute unconstitutional in ordinary litigation • Government prosecutes individual for violating National Firearms Act of 1934 • Individual can argue that National Firearms Act of 1934 violates 2nd Amendment • If Supreme Court is convinced, then • Declares statue unconstitutional (and therefore void) • Prosecution is unlawful and therefore null • Individuals can challenge parts of law • And courts can declare parts unconstitutional

4. Structure of Constitutional Rights • Most rights are not absolute • If government shows good enough reason, then right can be restricted • Free Speech (1st Amendment) • Government can prosecute people for • Yelling “fire in crowded theater” • Publishing child pornography • Asking fraudulent statements or false advertisements • Defaming individuals including politicians • Publishing military secrets • Speaking in a way that disrupts courts or public meetings, etc. • Equal protection (14th Amendment) • Government can • Draft only men (not women) • Hire only whites to infiltrate the Sicilian mafia • Segregate men and women’s bathrooms • Discriminate against minors by denying drivers licenses to persons under 16 or 17

5. Structure of Constitutional Rights • Level of scrutiny • How good a reason does the government have to have to limit a constitutional right? • How good a “fit” does there have to be between the reason and the law • Strict scrutiny (e.g. race discrimination) • Government needs a compelling reason, and there needs to be a near perfect fit • Must find least restrictive/infringing way of reaching governmental objective • Government could not hire only whites in the FBI because it needs whites to infiltrate the Sicilian Mafia • But could hire whites only for the specific jobs that involve infiltrating the Sicilian mafia • Rational basis scrutiny (e.g. age discrimination) • Government just needs to have a reason, and the fit can be loose • Age cutoff for driver’s license • Fit is not very good • Many 15 year olds would be very good drivers • Many 17 year olds are terrible drivers • But ok, because tight fit is not required under rational basis • Intermediate scrutiny (e.g. discrimination against women)

6. Questions on Gun Rights in 20th Century (continued) • 5. How is the reasoning in U.S. v Tot different from that in U.S. v Miller? Why do you think the opinion in U.S. v Tot does not simply state: United States v. Miller was a prosecution under the National Firearms Act of 1934, and the weapon, the possession of which had occasioned the prosecution of the accused, was a shotgun of less than 18 inch barrel. The Court said that in the absence of evidence tending to show that possession of such a gun at the time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it could not be said that the Second Amendment guarantees the right to keep such a weapon. Frank Tot has similarly failed to show a relationship between the .32 caliber Colt Automatic pistol he possessed and the preservation or efficiency of a well-regulated militia. Therefore, the statute under which he was convicted is constitutional, and his conviction is affirmed.

7. Questions • 6. Several of the sources in this packet compare or contrast the Second Amendment to the First Amendment. What are the similarities and differences they mention? Consider counter-arguments to the similarities and differences mentioned in the opinions. What do you think are the most important similarities and differences? The First Amendment states: 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 peaceably to assemble, and to petition the Government for a redress of grievances. The Second Amendment States: 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.

8. Questions • 7. Were you surprised by the decision in U.S. v. Warin? Why or why not? Is it consistent with U.S. v. Miller? Is it consistent with the text of the Second Amendment? • 8. The court in U.S. v Warin stated: Within a few years after Miller v. United States was announced the First Circuit dealt with arguments similar to those made by Warin in the present case. In Cases v. United States, … [the] court of appeals noted the development of new weaponry during the early years of World War II and concluded that it was not the intention of the Supreme Court to hold that the Second Amendment prohibits Congress from regulating any weapons except antiques ‘such as a flintlock musket or a matchlock harquebus.’ If the logical extension of the defendant’s argument for the holding of Miller was inconceivable in 1942, it is completely irrational in this time of nuclear weapons. • What is the court’s argument here? Do you find it persuasive? Under the court’s logic, what regulations would regulations would be constitutional? What regulations would be unconstitutional?

9. District of Columbia v Heller • District of Columbia • Barred possession of handguns • Did not allow operable long guns in home • Allowed long guns only if registered, unloaded, and disassembled or bound by a trigger lock, unless in place of business or used for lawful recreational activities • Heller brought suit challenging law as violation of 2nd Amendment • Scalia + 4 • Individual right to possess guns for self-defense • Did not decide level of scrutiny • DC cannot • ban handguns in home • Require long-guns to be inoperable in the home • Stevens + 3 • Agrees that 2nd Amendment rights are individual • But no right to guns for self-defense • Breyer + 3 - reasonable regulations ok, courts must balance interests

10. Questions • 1. What do you think were Justice Scalia’s strongest arguments? • 2. What do you think were Justice Scalia’s weakest arguments? • 3. What do you think were Justice Stevens’s strongest arguments? • 4. What do you think were Justice Stevens’s weakest arguments? • 5. How did Scalia and Stevens interpret U.S. v Miller? Which had the better interpretation? • 6. Heller is often described as an originalist opinion, because so much of both Scalia’s and Stevens’s opinions discuss historical evidence. Another approach to constitutional adjudication treats the constitution as a “living” document that should be interpreted in light of modern concerns and conditions. As David Strauss put it, this approach “looks to the future, not the past [and] tries to bring laws up to date, rather than deferring to tradition.” How would a justice who believes that the constitution should be interpreted as a “living” document to be “updated” decide the issues in U.S. v. Heller?

11. Questions • 7. Can you argue that Scalia’s and/or Stevens’s opinion in Heller was (or were) not, in fact, originalist, but that one or both was (or were) really arguing in “living constitutionalist” fashion to “update” the amendment to accommodate modern conditions? • 8. What sort of restrictions on gun ownership and use are allowed by Heller? Why are they allowed?