Introduction to Fundamental Rights and Constitutional Interpretation
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The document discusses American constitutional law topics related to interpretation and incorporation through the Second Amendment. It covers the source of rights, the scope of protections under the state action doctrine, methods of interpreting the constitution, the incorporation doctrine, and amending the constitution. Examples used include discussions of the Second Amendment in Heller and McDonald cases, which found it protects an individual right to gun ownership and incorporated that right against states.
![14
District of Columbia v. Heller (2008)
Question 1
District of Columbia v. Heller (2008)
Question 1
●
Facts: Washington D.C.
prohibits the possession of
handguns & requires
residents to keep their
lawfully owned firearms,
“unloaded and dissembled
or bound by a trigger lock or
similar device” unless being
used for lawful recreational
activities.
●
Justice Scalia (majority
opinion):
– In interpreting this text, we are
guided by the principle that “[t]he
Constitution was written to be
understood by the voters; its
words and phrases were used in
their normal and ordinary as
distinguished from technical
meaning….” Normal meaning…
known to ordinary citizens in the
founding generation.](https://image.slidesharecdn.com/interpretation2ndamendmentexercisesprachenschein-190731070755/85/Introduction-to-Fundamental-Rights-and-Constitutional-Interpretation-14-320.jpg)
![21
Incorporation Example: 2nd
AmendmentIncorporation Example: 2nd
Amendment
●
In District of Columbia v.
Heller, Court said 2nd
Amendment contains
individual right to have
guns.
●
The case involved a
challenge to a Washington
D.C. handgun restriction.
– D.C. is NOT a state!
●
Test:
– whether a particular Bill of Rights
guarantee is fundamental to our
scheme of ordered liberty and
system of justice.
●
McDonald v. Chicago (2010):
– Right to have gun is fundamental
to our scheme of ordered liberty
and system of justice because
“[s]elf-defense is a basic
right...the central component of
the Second Amendment right.”](https://image.slidesharecdn.com/interpretation2ndamendmentexercisesprachenschein-190731070755/85/Introduction-to-Fundamental-Rights-and-Constitutional-Interpretation-21-320.jpg)
Introduction to Fundamental Rights and Constitutional Interpretation
- 1. 1 American Constitutional LawAmerican Constitutional Law Learning about Interpretation & Incorporation through the 2nd Amendment Note – throughout these notes there are links (in bluein blue) to the Interactive ConstitutionInteractive Constitution containing background information on the topics discussed in the slides.
- 2. 2 Lecture StructureLecture Structure I. Source of rights II. Scope of protections: state action doctrine III. Interpreting the constitution IV. The incorporation doctrine V. Amending the Constitution
- 3. 3 Source of RightsSource of Rights ● Constitution ● Bill of Rights ● Federal Law ● State Constitution ● State Law ● Local Law
- 4. 4 What Federal Law AddsWhat Federal Law Adds ● Constitution only protects people from the government. – federal law can regulate rights between private individuals. ● Court may read constitutional right narrowly
- 5. 5 Criminal ProcedureCriminal Procedure Rights we will not be covering in class: ● 4th Amendment4th Amendment – privacy ● 5th Amendment5th Amendment – Due Process, self-incrimination ● 6th Amendment6th Amendment – right to counsel & jury; double jeopardy ● 8th Amendment8th Amendment – cruel and unusual punishment
- 6. 6 Limits on PowerLimits on Power ● Structural Limits – Separation of powers – Checks and balances – federalism ● Civil Liberties – a.k.a. fundamental rights – Rights given to individuals to check the power of government.
- 7. 7 State ActionState Action ● Constitutional rights only limit government actions. – Private conduct generally does not have to comply with the Constitution. ● Constitution applies to government at all levels (for reasons we will soon discuss) – Federal, State, Local – and to actions of its officers This But not this
- 8. 8 When Does the Constitution Limit Private Actions? When Does the Constitution Limit Private Actions? ● 13th Amendment – bans slavery – only provision that specifically regulates private conduct. – Prohibition was another - 18th Amendment ● Public Functions Exceptions – private entity exercises power traditionally exclusively reserved for government. ● Entanglement Exceptions – Gov't encourages private action
- 9. 9 Public Function ExceptionPublic Function Exception ● Becomes an issue when a private entity is carrying out a function that was traditionally and exclusively carried out be the government. ● Traditional public functions include: – Elections – Company towns ● But not: – Schools – Shopping malls – Utility companies Roebling, New Jersey: A town that helped build some of America’s most famous bridges
- 10. 10 Entanglement ExceptionEntanglement Exception ● The Constitution applies if the government affirmatively authorizes, encourages, or facilitates private conduct that violates the Constitution. – government somehow enables the constitutional violation by private actors. – Example – Shelly v. KramerShelly v. Kramer ● Race based restrictions in private sales contracts for houses that would be enforced by courts deemed to be state action because the courts and the private actions were entangled.
- 11. 11 Interpreting the ConstitutionInterpreting the Constitution ● Various Approaches – Textualism – Original Meaning – Precedent – Pragmatism – Moral Reasoning – National Identity – Structuralism – Historical Practices ● See StudIP/ Learnweb for handout ● Source: Modes of Constitutional Interpretation, Congressional Research Service (2018)
- 12. 12 2nd Amendment2nd Amendment ● “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.” ● What does this mean? Does it apply to individuals or militias? ● Before revolution, British tried to take guns away from groups of armed citizens (militias). ● Remembering this, 2nd Amendment outlawed forceful disarming of the people in the future.
- 13. 13 U.S. v. Miller (1939)U.S. v. Miller (1939) ● Facts: federal law required certain types of guns to be registered with the federal government. ● Defendants were charged with violating the law when they transported a sawed- off double-barrel 12-gauge shotgun across state lines without a registration. ● Holding: “we cannot say that the Second Amendment guarantees the right to keep and bear such (a gun)…. With obvious purpose to assure the continuation and render possible the effectiveness of such forces (militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”
- 14. 14 District of Columbia v. Heller (2008) Question 1 District of Columbia v. Heller (2008) Question 1 ● Facts: Washington D.C. prohibits the possession of handguns & requires residents to keep their lawfully owned firearms, “unloaded and dissembled or bound by a trigger lock or similar device” unless being used for lawful recreational activities. ● Justice Scalia (majority opinion): – In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning….” Normal meaning… known to ordinary citizens in the founding generation.
- 15. 15 District of Columbia v. Heller Question 2 District of Columbia v. Heller Question 2 ● “we find that they (the words of the 2nd Amendment) guarantee the individual right to possess and carry weapons in case of confrontation.” ● “we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”
- 16. 16 District of Columbia v. Heller Questions 3 & 4 District of Columbia v. Heller Questions 3 & 4 ● “the inherent right of self- defense has been central to the Second Amendment right.” ● “banning from the home the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” violates the constitution.
- 17. 17 District of Columbia v. Heller (Dissent) Question 5 District of Columbia v. Heller (Dissent) Question 5 ● Stevens (dissenting): – A conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. ● Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.
- 18. 18 Trump’s Space ForceTrump’s Space Force ● The President has asked Congress to create a 4th branch of the military: a space force. ● Does Congress have this power? ● Congress has the express power to: – raise and support Armies – provide and maintain a Navy ● How should this be interpreted? – Does a space force fit?
- 19. 19 Congress Shall Make No LawCongress Shall Make No Law ● Look at the first line of the 1st Amendment. – “Congress shall make no law . . . .” ● The rights found in the Bill of Rights protect people from... – Only Congress? – Prior to the passage of the 14th Amendment, the answer was yes, only Congress and other federal actions were restricted by the fundamental rights found in the Constitution. ● Remember, each state has their own constitution granting rights to its citizens
- 20. 20 Incorporation DoctrineIncorporation DoctrineIncorporation DoctrineIncorporation Doctrine ● States cannot infringe on the liberty of individuals. – What is liberty? – Up to the Supreme Court to decide which rights in U.S. Constitution amount to “liberty rights”. – When right is deemed “liberty”, it is imposed on state and local actors. “No State shall make or enforce any law (that) . . . deprive(s) any person of life, liberty, or property, without due process of law.” – 14th Amendment
- 21. 21 Incorporation Example: 2nd AmendmentIncorporation Example: 2nd Amendment ● In District of Columbia v. Heller, Court said 2nd Amendment contains individual right to have guns. ● The case involved a challenge to a Washington D.C. handgun restriction. – D.C. is NOT a state! ● Test: – whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. ● McDonald v. Chicago (2010): – Right to have gun is fundamental to our scheme of ordered liberty and system of justice because “[s]elf-defense is a basic right...the central component of the Second Amendment right.”
- 22. 22 Amending the ConstitutionAmending the Constitution ● Two ways to start the process ● Two ways to finish the process. ● Has only happened 27 times in 230+ years.