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
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 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?