Assignments for Week Three (February 2-4)

 Cedar Point decision ;Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)
Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw; just focus on the majority opinion's discussion of the Takings issue--ignore the Contracts Clause issue).

Talking Poletown: A Short Film

 

Kelo and the Great Debate

 Pay careful attention to the difference between Justice Stevens' majority opinion in Kelo and Justice Thomas' dissent. It is a perfect example of the difference between the common law "Living Constitution" and original meaning originalism. 

Do you see this? If the written Constitution is law, which approach seems more faithful to the rule of law?

One of You Comments on the Bruen oral argument

 Max Beal, who can't be in class on Wednesday, wrote me this comment about the oral argument in Bruen:

The passage I found most interesting in the oral arguments from the Bruen case came from Chief Justice Roberts on page 65 of the transcript (approximately 1 hour and 31 minutes in). 

"You don't have to say when you're looking for a permit to speak on a street corner or whatever that, you know, your speech is particularly important. So why do you have to show in this case, convince somebody, that you're entitled to exercise your Second Amendment right?"

I thought this passage was particularly thought provoking because Justice Roberts is using an analogy to the 1^st Amendment's Freedom of Speech guarantee to illustrate a point for the 2^nd Amendment's Right to Bear Arms. Some of the oral arguments leading up to Justice Roberts' comments seemed focus on how the 2^nd Amendment (like 1^st Amendment) is not totally absolute and unrestricted and therefore the right to bear arms should not be without some sensible restrictions either. But Justice Roberts seemed to take a step back and say from a more fundamental standpoint that restrictions on how freedoms are exercised are quite different from restrictions (and barriers) on being allowed to exercise those freedoms altogether. In my opinion, this was really the heart of the argument because fighting over subsequent restrictions on where a citizen is allowed to carry a firearm and fighting over the citizen's initial right to carry a firearm altogether are really two fundamentally different arguments.

 

Thoughts?

New York State Rifle & Pistol Association, Inc v. Bruen

 From Oyez:

Facts of the case

The state of New York requires a person to show a special need for self-protection to receive an unrestricted license to carry a concealed firearm outside the home. Robert Nash and Brandon Koch challenged the law after New York rejected their concealed-carry applications based on failure to show “proper cause.” A district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed.

Question

Does New York's law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the Second Amendment?

Next Week's Assignments

 Wednesday January 26: 

New York State Rifle & Pistol Association Inc. v. Bruen: Oral Argument I would like each of you to identify one or two passages from the oral argument (cited to the relevant page on the oral argument transcript) that you believe are particularly interesting. I will ask many of you to share your passage with the class for discussion.

 

Thursday January 27

Read Prof. Linder's Introduction to Takings Clause (link);Casebook p. 791-807:  Public Use Requirement

 

Friday January 28  and Wednesday February 2

U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto);Cedar Point decision

Meat Loaf: R.I.P.

 

 

"I was a varsity tackle and a hell of a block

When I played my guitar, I made the canyons rock"

Original Public Meaning of the Civil War Amendments and Segregation

 The Slaugjhter-House Cases (83 U.S. 36 (1872)) was the first Supreme Court decision to interpret the equal protection clause of the 14th Amendment. Here is the language from the Court's opinion about the "one pervading purpose" of the Civil War amendments that I quoted yesterday when we were discussing whether Brown v. Board is an originalist decision:

 Justice Miller said that the Civil War Amendments must be interpreted in light of their “one pervading purpose”—“the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

If you apply that pervading purpose to laws mandating racial segregation and apartheid, do you uphold those laws or strike them down? 

Of course, when the Constitution is ratified to require a major change in society, there will always be resistance to that change. It can take many years for the original meaning of a constitutional provision to accomplish its one pervading purpose. But most originalists believe that Brown v. Board finally fulfilled the original public meaning of the 14th Amendment.

 

Class Recordings

 More than a few of you are unable to attend class due to Covid precautions. Obviously, that is an excused absence. 

I am not opening Zoom up for live participation via zoom. Instead, I am recording the classes and you will be available to access the recordings shortly after class on Canvas. Stay up with the readings, watch the video lectures I assign for certain classes, and view the recorded class sessions. 

And, as I told the class today, please don't hesitate to call me if you have questions or wish to discuss an issue from class. I enjoy interruptions; I like to speak with students. So, text me first, and I will either call you immediately or suggest for a phone conversation.

Rick Duncan

Heller Holding

 1. The Court makes clear that it is interpreting the Constitution based upon its original public meaning and not upon what the Court believes the Constitution ought to mean (p.1): “ The Second Amendment provides: “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.” 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 may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

2. P. 3-4: “Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed....”

     There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not. Thus, 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. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause."

3. page 4: ”Relationship between Prefatory Clause and Operative Clause

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

    The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.... It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

    It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution....

 

4. page 6: Right Not Unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose….Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

    We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

5. page 8: Judgment: “ In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”

Originalism and the Right to Bear Arms--Antique Muskets Only?

 

                                    Davey Crockett with "Old Betsey"

The edited case omits an important part of the Heller decision, the one in which the Court says:
"the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

Is this a rejection of original understanding by a Court purporting to apply originalism? Consider the quote in context:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communication, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

In other words, originalism discerns the principle that defines the liberty, which then must be applied to modern threats against that liberty.

Does that make more sense? Does it demonstrate how the original understanding of constitutional liberties can be applied in modern cases?

By the way, here is how the Court described its search for original meaning:

The Second Amendment provides: “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.” 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 may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

Here are some other important passages from Heller:

1. The Prefatory Clause

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

Logic demands that there be a link between the stated purpose and the command.... But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. “It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.” Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

Race and the Right to Keep and Bear Arms

                                        

                                              Justice Thomas at Nebraska Law

 Justice Thomas has argued persuasively that one of the purposes of the 14th Amendment was to  provide the protections of the Second Amendment--and the right to possess arms for self-defense--to the newly freed former slaves. This was necessary because, following the end of the Civil war, southern states moved "systematically [to] disarm African American citizens." As Prof. George Mocsary has said, Justice Thomas "knows what it's like to be poor and black in the Jim Crow South." He is an incredible man. When he visited my Property class a few years ago, he insisted on staying after class to take a picture with any student who wanted one. Imagine being a first year lawyer and having a picture on the wall with you and Justice Thomas!

Consider this brief excerpt from an article by historian Professor David Schenk:

Freedmen with Firearms: White Terrorism and
Black Disarmament During Reconstruction

David H. Schenk

Common American History 101 narratives of
post-Civil War Reconstruction have generally included
docile and helpless former slaves, who quietly adjusted to
the oppressive governance and terror of white Southern
peoples for nearly a century. This established narrative,
however, obscures another possible reason why organized
Freedmen gave up their fight for suffrage and basic civil
rights. Congressional records describe the early years of
Reconstruction with armed Freedmen communities
successfully defending their rights against white Southern
authorities and terrorist organizations. At the same time
these records also reveal efforts by these same white
Southern entities to systematically disarm African
American citizens.
African Americans fought hard for their political
and civil rights as new United States citizens, during a time
when they were reasonably well-armed and could
organize a viable resistance. In what could be described as
the disarmament period, these firearms were confiscated
through various means of violence and coercion. As a
result, the political agency of Freedmen was greatly
diminished, and the consequences are clearly represented
by reduced Freedmen poll numbers during the later years
of Reconstruction. Freedmen were largely willing to fight
and die for their rights as new U. S. citizens as long as
defiance remained a course of rational action. Disarmed
and overpowered by the weaponry of their oppressors,
African Americans grudgingly resigned themselves to the
politics of basic survival.

 

Now consider this excerpt from Justice Thomas' concurrence in McDonald (citations omitted):

 

After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “ ‘[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble?'"...

As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. Some States formally prohibited blacks from possessing firearms. Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. Additionally, “[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.”

As the Court makes crystal clear, if the Fourteenth Amendment “had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African–Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers.” In the years following the Civil War, a law banning firearm possession outright “would have been nondiscriminatory only in the formal sense,” for it would have “left firearms in the hands of the militia and local peace officers.” Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified.

 

Justice Thomas concluded that the 14th Amendment was designed (and should be understood) to protect the Second Amendment right to keep and bear arms for self-defense as a fundamental privilege or immunity of citizenship applicable to the states via the 14th Amendment.

Here is a WaPo column on McDonald, Justice Thomas, Race, and guns

What are your thoughts?