The time has come in my Constitutional Law class to discuss Heller. For you guys who love to argue the points, I thought I'd post the discussion questions for our next class and let you guys argue/ponder away. These aren't homework questions or anything, just some things he wants us to think about in the reading so don't feel like you'll be doing my work for me (plus I've already read the opinion in full instead of the 40 page edited opinion we'll be reading in class and have good answers for nearly all of the questions.) Don't even post answers if you don't want to. Just some stuff to think about. Enjoy...
Oh, and by the way, ignore page numbers, those refer to a textbook not the actual opinion.
1. Do you agree that “a prefatory clause does not limit or expand the scope of the operative clause”? (CB Supp. 4.) If A says to B, “since you need to check your e-mail, you may use my computer,” does that give B the right to use A’s computer for any purpose?
2. What significance, if any, should be attached to the fact that the Second Amendment is the only amendment in the Bill of Rights with a prefatory clause?
3. Under the majority’s approach, why was the Second Amendment included in the Bill of Rights? What effect did it have with respect to what the majority describes as a “pre-existing right” to keep and bear arms?
4. Under the majority’s approach, would a state have a right to shut down the militia? Would individuals have a right to form one on their own if a state did so?
5. Why was the Second Amendment adopted under Justice Stevens’ approach? What individual rights, if any, would it have created?
6. If you were writing an express provision to be included in the constitution that would provide for states of emergency roughly along the lines of the provisions in the South African constitution (Supp. 43-45), would you include the Second Amendment as a “non-derogable” right (see Section 37(5), Supp. 44)? Why or why not?
7. How should the impact of technological change be incorporated into constitutional interpretation? Consider that the set of those weapons that individuals would normally carry no longer overlaps to any great degree with the set of weapons that would be needed for an effective militia (as they did in the late 18th century). Is it possible for the Second Amendment to serve the same purpose today that the majority says it served when the Second Amendment was adopted? Would treating the Second Amendment as having fallen into desuetude because of technological change endanger protections under the Fourth Amendment? Is there any significance to the Third Amendment today?
8. How should the impact of sociological change be incorporated into constitutional interpretation? How persuasive do you find Justice Breyer’s argument that the framers would not have anticipated the problem modern urban-crime related dangers (CB Supp. 37)? If he is correct, of what significance is that for interpretation of the Second Amendment? What is the significance of the absence in the majority opinion of any discussion of the reasons for the handgun ban in the District of Columbia?
9. The majority concludes that “modern developments have limited the degree of fit between the prefatory clause and protected right,” (CB Supp. 15) and goes on to say, but that that development “cannot change our interpretation of the right” Why should it not?
10. Do citizens have the right under the majority’s reading of the Second Amendment to stockpile large caches of weapons in anticipation of the need someday to fight an oppressive government?
11. Is it possible for there to be “no doubt” about the framers’ intent (CB Supp. 8) on anything? Is such a level of certainty necessary in constitutional interpretation? Are you persuaded, in light of both the majority’s and Justice Stevens’ opinions that the original meaning of the Second Amendment is clear one way or the other?
12. Are you persuaded by Justice Stevens’ assertion of the irrelevance of the evidence that the majority marshals concerning the interpretation in the 19th century of the Second Amendment as protecting an individual right? Why or why not? Might it be a “historical gloss” on the text? A sign of an evolving constitution?
13. What should we make of the fact that throughout most of the 20th century, the predominant understanding of the Second Amendment was that it did not protect individual rights? Of what relevance should it be that in the last quarter of the 20th century opposition to gun control became a much bigger political issue and scholarly commentary began to turn more to an individual rights interpretation?
14. Who has the more persuasive treatment of prior precedent (particularly Cruikshank, Presser, and Miller, in your view -- the majority or Justice Stevens?
15. The majority says that the “inherent right of self-defense has been central to the Second Amendment right.” (CB Supp. 15) What is the scope of the right of self-defense protected by the Second Amendment? Does it cover self-defense outside the home?
16. Is the right recognized by the majority limited to “law-abiding, responsible citizens” (CB Supp. 17), as Justice Stevens asserts (CB Supp. 20)? If it is, does this mean that other rights in the Bill of Rights may be similarly limited?
17. What is the significance of the majority’s reference to an “individual right to possess and carry weaspons in case of confrontation” (CB Supp. 7) (emphasis added)? What sort of confrontations does the majority have in mind?
18. Would adoption of an “interest-balancing” approach to scrutinizing gun-related regulations, as Justice Breyer proposes, imply adoption of a similar approach to regulations that impinge on, say, First Amendment rights? What factor makes Justice Breyer think that scrutiny of regulations that impinge on the Second Amendment right recognized by the majority inevitably must be different from the kind of scrutiny the Court uses in analyzing regulations that impinge on other individual rights? See CB Supp. 30-31.
19. What reasons does Justice Breyer give for judicial deference to legislative judgment in gun regulation?
20. What kinds of weapons are protected by the Second Amendment, according to the majority? What kinds are not protected? Does it depend on how use they would be in a militia today? Why do Americans who chose to have guns at home typically not keep machine guns?
21. The majority states that “handguns are the most popular weapon chosen by Americans for self-defense in the home” (CB Supp. 16), so a complete ban on their possession (at least at home) is invalid. Does this mean that the interpretation of this aspect of the Constitution -- the types of weapons that are protected by the Second Amendment -- should turn on what is popular? If so, why shouldn’t other aspects of the interpretation -- like the degree to which the federal or state governments are permitted to limit the possession of firearms -- also be subject to democratic control and change?
22. Assuming that the Second Amendment protects an individual right to bear arms, that right is not absolute. What test should be applied according to the majority to determine whether a particular restriction violates the right according to Justice Breyer? What criticisms does the majority make of his proposal? Why does the majority not offer a standard? Is its answer consistent with its listing at CB Supp. 14 of types of restrictions that are permissible?
23. Does Heller mark an amendment to the Constitution? If not, did (for example) Cruikshank or Miller?
Oh, and by the way, ignore page numbers, those refer to a textbook not the actual opinion.
1. Do you agree that “a prefatory clause does not limit or expand the scope of the operative clause”? (CB Supp. 4.) If A says to B, “since you need to check your e-mail, you may use my computer,” does that give B the right to use A’s computer for any purpose?
2. What significance, if any, should be attached to the fact that the Second Amendment is the only amendment in the Bill of Rights with a prefatory clause?
3. Under the majority’s approach, why was the Second Amendment included in the Bill of Rights? What effect did it have with respect to what the majority describes as a “pre-existing right” to keep and bear arms?
4. Under the majority’s approach, would a state have a right to shut down the militia? Would individuals have a right to form one on their own if a state did so?
5. Why was the Second Amendment adopted under Justice Stevens’ approach? What individual rights, if any, would it have created?
6. If you were writing an express provision to be included in the constitution that would provide for states of emergency roughly along the lines of the provisions in the South African constitution (Supp. 43-45), would you include the Second Amendment as a “non-derogable” right (see Section 37(5), Supp. 44)? Why or why not?
7. How should the impact of technological change be incorporated into constitutional interpretation? Consider that the set of those weapons that individuals would normally carry no longer overlaps to any great degree with the set of weapons that would be needed for an effective militia (as they did in the late 18th century). Is it possible for the Second Amendment to serve the same purpose today that the majority says it served when the Second Amendment was adopted? Would treating the Second Amendment as having fallen into desuetude because of technological change endanger protections under the Fourth Amendment? Is there any significance to the Third Amendment today?
8. How should the impact of sociological change be incorporated into constitutional interpretation? How persuasive do you find Justice Breyer’s argument that the framers would not have anticipated the problem modern urban-crime related dangers (CB Supp. 37)? If he is correct, of what significance is that for interpretation of the Second Amendment? What is the significance of the absence in the majority opinion of any discussion of the reasons for the handgun ban in the District of Columbia?
9. The majority concludes that “modern developments have limited the degree of fit between the prefatory clause and protected right,” (CB Supp. 15) and goes on to say, but that that development “cannot change our interpretation of the right” Why should it not?
10. Do citizens have the right under the majority’s reading of the Second Amendment to stockpile large caches of weapons in anticipation of the need someday to fight an oppressive government?
11. Is it possible for there to be “no doubt” about the framers’ intent (CB Supp. 8) on anything? Is such a level of certainty necessary in constitutional interpretation? Are you persuaded, in light of both the majority’s and Justice Stevens’ opinions that the original meaning of the Second Amendment is clear one way or the other?
12. Are you persuaded by Justice Stevens’ assertion of the irrelevance of the evidence that the majority marshals concerning the interpretation in the 19th century of the Second Amendment as protecting an individual right? Why or why not? Might it be a “historical gloss” on the text? A sign of an evolving constitution?
13. What should we make of the fact that throughout most of the 20th century, the predominant understanding of the Second Amendment was that it did not protect individual rights? Of what relevance should it be that in the last quarter of the 20th century opposition to gun control became a much bigger political issue and scholarly commentary began to turn more to an individual rights interpretation?
14. Who has the more persuasive treatment of prior precedent (particularly Cruikshank, Presser, and Miller, in your view -- the majority or Justice Stevens?
15. The majority says that the “inherent right of self-defense has been central to the Second Amendment right.” (CB Supp. 15) What is the scope of the right of self-defense protected by the Second Amendment? Does it cover self-defense outside the home?
16. Is the right recognized by the majority limited to “law-abiding, responsible citizens” (CB Supp. 17), as Justice Stevens asserts (CB Supp. 20)? If it is, does this mean that other rights in the Bill of Rights may be similarly limited?
17. What is the significance of the majority’s reference to an “individual right to possess and carry weaspons in case of confrontation” (CB Supp. 7) (emphasis added)? What sort of confrontations does the majority have in mind?
18. Would adoption of an “interest-balancing” approach to scrutinizing gun-related regulations, as Justice Breyer proposes, imply adoption of a similar approach to regulations that impinge on, say, First Amendment rights? What factor makes Justice Breyer think that scrutiny of regulations that impinge on the Second Amendment right recognized by the majority inevitably must be different from the kind of scrutiny the Court uses in analyzing regulations that impinge on other individual rights? See CB Supp. 30-31.
19. What reasons does Justice Breyer give for judicial deference to legislative judgment in gun regulation?
20. What kinds of weapons are protected by the Second Amendment, according to the majority? What kinds are not protected? Does it depend on how use they would be in a militia today? Why do Americans who chose to have guns at home typically not keep machine guns?
21. The majority states that “handguns are the most popular weapon chosen by Americans for self-defense in the home” (CB Supp. 16), so a complete ban on their possession (at least at home) is invalid. Does this mean that the interpretation of this aspect of the Constitution -- the types of weapons that are protected by the Second Amendment -- should turn on what is popular? If so, why shouldn’t other aspects of the interpretation -- like the degree to which the federal or state governments are permitted to limit the possession of firearms -- also be subject to democratic control and change?
22. Assuming that the Second Amendment protects an individual right to bear arms, that right is not absolute. What test should be applied according to the majority to determine whether a particular restriction violates the right according to Justice Breyer? What criticisms does the majority make of his proposal? Why does the majority not offer a standard? Is its answer consistent with its listing at CB Supp. 14 of types of restrictions that are permissible?
23. Does Heller mark an amendment to the Constitution? If not, did (for example) Cruikshank or Miller?
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