Law class-Supreme Court case

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Nov 12, 2007
Southwest Florida
Hi Folks,

I'm taking a law class this fall, and our end of term assignment is a research paper on a Supreme Court case. Generally, it has to be on an environmental or safety disaster, but we're allowed other topics subject to professor approval. He's already indicated he has a fairly liberal acceptance policy providing it was a major US Supreme Court decision that had a major impact on the nation.

Being something of a gun nut, I'd like to do the project on guns.

So, my question to you is this: What cases would you recommend? Of course, DC vs Heller jumps out into my head, because it's a very recent one. However, that's of some concern to me, since the fallout from that one may not be as broad as I'd like for ease of research.

What others are out there that would be good? I'd really enjoy something regarding the Gun Control Acts of 1968 or 1934, but I'm very open. What would you folks suggest? If there's interest, I'd be happy to post the results of my research paper on the forum after I write it and it's been graded.

Thanks folks!

One of the most important SCOTUS cases ever was the Slaughter House Cases of 1873. In that decision the Supreme Court rendered an incorrect interpretation of the Privileges or Immunities clause of the 14th amendment. That decision made Jim Crow possible because the blacks in the South could not afterward seek the protection of the Federal Courts when the States of the Old Confederacy deprived them of almost all their Constitutional rights.
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US v. Miller (1939). A very dubious decision with broad-reaching consequences which continue to expand to this very day.

Wickard v. Filburn (1942) is another very dubious decision which drastically increased the de facto power of the federal government to regulate anything arbitrarily.

Notice both of these decisions were made by an FDR-packed Supreme Court.
The lawyers on the board ought to weigh in, but for now you stuck with a layman bun buff :)

Before Heller 2008, there was Miller 1939 that touched on the 1934 NFA to the dissatisfaction of both gun control and gun rights sides and is still controversial, although quoted by both sides.

I don't think there was a challenge to 1968 GCA ever brought to the Supreme Court. Heller 2008 and McDonald 2010 were about bans in the federal DC and city.

Before Miller 1939, there was Cruikshank 1873 that limited protections under the Bill of Rights to protection against Congress, which meant states and private parties like the KKK could violate voting, peacable assembly, RKBA rights without federal interference.
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The 2A, for as controversial as it is, has surprisingly little case law... almost thankfully. I'm willing to bet that most of the gun crimes that could have gone to the SCOTUS would have been from unsympathetic defendants (drug smugglers, gangbangers, etc.). The results may not have been favorable. We lucked out with Miller, which was not very decisive. We also lucked out with Heller and McDonald, both sympathetic defendants.
Baron v. Baltimore, 1833.... IMO the absolute worst USSC decision ever. It allowed state legislatures to thumb their noses at the Bill of Rights... completely undoing what the original founders intended.
Wickard or perhaps Raich. These are the big commerce clause cases that pretty much have given the feds near carte blanche to regulate things. The interpretation from Wickard and progeny is the reason the Feds can pass laws about guns which really is more of a police power that ought to rest with the states.

Also the first real subsequent check on the commerce clause was Lopez a case that dealt with the gun free school zone law.

Baron v. Baltimore, 1833.... IMO the absolute worst USSC decision ever. It allowed state legislatures to thumb their noses at the Bill of Rights... completely undoing what the original founders intended

Save for the fact that as a textual matter it is very clear the bill of rights was only intended to be applied against the federal govt. You may not like the substantive outcome but it is a hard sale to say that it went against the founders intent IMHO (and that of many constitutional scholars who have forgotten more than I know about con law).
Hey, how about the 1954 case of Brown v. Kansas Board of Education?
Talk about upsetting the apple cart, this one did. It overturned Plessy v. Fergueson which held that "separate but equal" was constitutional. There, the decision ignored the doctrine of "stare decisis."
It also changed the original intent of the 14th Amen. as during the senate debates the specific question was asked "Will this mean that white children will have to sit next to colored children in schools?" The overwhelming response was "No." As such, the Court's 1954 decision ignored the original intent of the framers of the amendment to the Constitution, and the public sentiment which voted for its ratification. (As they did so under the belief that the senatorial debates raised & answered the relevant questions)
Again, so much for "original intent" and "stare decisis."
And also, do note, that in 1954, the majority of the voters were not in favor of integrating the public schools.
So here, in the Brown cases (check out Brown II also, its part of it), we have a SCOTUS that totally ignores the original intent of the Framers of the Constitution (albeit by an amendment), prior settled law/stare decisis (Plessy), and the popular will of the people, all in one fell swoop. And they did it 9-0.
How could this be? No one today seriously challenges it today, even those who scream about the "original intent" of the Constitution. The Warren Court was an activist court, to be sure, but outside of a Klan meeting, no one disputes the correctness of the Brown decision, so far as it was "the right thing to do."
I only disputed it on the method used, not the outcome, but that was back when I subscribed to the doctrine of "original intent" interpretation of the Const. I still like the school of constitutional interpretation, but I have come to understand that it has faults, as elegantly demonstrated in Brown.
The "Living Constitution" school of const. interpretation also has faults, namely, continuity of the law/stare decisis.
The approach I would use, to reconcile the Brown decision and the Constituion would be the "Strict Constructionist" view. This view, while close to the "originalist" perspective, differs as it has the understanding that the Const. ought to be interpreted in light of what the actual words written/agreed upon (in their contemporaneous usage) meant. This view presumes the Framers knew what words meant (chose them wisely) and leaves room for deciding future cases not in contravention of the Framers'/voters general sentiment in the ratification of the Amendement. Wiggle-room, if you will.

Or, pick an easy subject. But another that represents a sea-change in our jurisprudence.

When I was in law school I researched the 2nd Amen. (pre-Heller days), purely for my own edification. Try it when you have time (sorry, just had to joke. Time? a 1L?) But anywho, you'll be big surprised if/when you research the 2nd.
Talk about a sea-change, Heller & McDonald did so. But these cases did so with scattered ideolgies, not with a single opinion by the majority. The Brown cases are much clearer.

To be sure, the cases of Wickard, Barron (not Baron), and the Slaughter House cases will make for a good paper, but everybody & their uncle will also be doing those cases. And your paper will be compared to their papers.
Also, the word "that" can usually be pared with no loss of meaning. The trouble with writing a paper for law school is not a lack of verbiage, it is getting it down to size.
Complte, clear, and concise wins. This is not an IRAC format.
Save for the fact that as a textual matter it is very clear the bill of rights was only intended to be applied against the federal govt.
I keep reading this, yet no one ever explains how the supremacy clause DOESN'T apply to the amendments. The way I see it, at the least, the Constitution was ratified with the first 10 amendments already in place, thereby making them PART of the USC. So how does the supremacy clause NOT apply them to the states.

Or is this the old, "Congress shall pass no law..." beginning of the 1A that was really a preamble to the entire BoR?
Miller is the only meaningful 2A case before Heller. As another poster mentioned, it was only argued by one side and is not particularly important post-Heller except its narrow holding ; i.e., the federal government can regulate short barreled shotguns and, presumably fully automatic weapons since they were both covered under the same act.

That leaves you with either Heller which recognized the 2A as an individual right or McDonald which incorporated the right and made it applicable to the states via the 14th Amendment. One interesting twist is that the fifth vote to incorporate it (Justice Thomas) was done via the Privileges and Immunities Clause of the 14th Amendment rather than the Due Process Clause of the 14th Amendment. Since the P&I clause is applicable only to citizens, then it is an open issue as to whether the right applies to non-citizens, whether in the country legally or not.

As to environmental/safety cases, I'm no expert. However, it seems to me that Sierra Club v. Morton, 405 U.S. 727 (1972), is a case that flies under the radar of non-lawyers but is critical because it involves the issue of legal standing to bring suit. The concepts and standards set out in that case have helped fuel a great deal of environmental and non-environmental lawsuits. For an introduction and brief introduction, look at
The Bill of Rights (first 10 amendments) were certainly not part of the original Constitution, they came about only after the Constitution was adopted. It was the first order of business for the first Congress, and we have 11 of the 12 then proposed. (The 11th one is our 27th. That one took a while.)

The Bill of Rights originally was not intended to apply to the states at all, only the fedral gov. It was only (well) after the 14th Amen. was ratified that the B.O.R. started to be applied to the states. (The incorporation controversy.) See the clause in it stating "No state shall..." The 13th, 14th & 15th Amens. were passed by the "Radical Republicans" during Reconstruction with little to no input from the Democrats. In some cases the ratification of the these amendments were a precondition of some southern states to rejoin the Union, coercion, if you will.

And it would be kinda hard to apply the 10th to the states with the way it was written.
Perpich v. Department of Defense, 496 U. S. 334 (1990).

Interesting for a number of reasons. Gives a detailed description of the federal authority over the National Guard and explainns why the availability of a State Guard option not subject to the dual enlistment provisions of the NG eliminates the constitutional shortcomings of the NG. Also interesting because the decision is authored by Stevens for a unanimous Court and directly contradicts some of the most crucial elements of his dissent in Heller. Specifically, Scalia pointed out that the feds have plenary control over the composition of the militia and that the interpretation of the 2nd by the dissent would result in an illusory right which can be wholly defeated by federal regulation of the composition and arming of the militia. Stevens countered with a suggestion that the states could establish their own militia free of any federal control or oversight, which is something The Perpich decision rejects.
Haynes vs. US. This case - from 1968, if I remember correctly - established that the 5th Amendment protections against self incrimination prevent prosecution of a felon for a gun registration violation. (Prosecuting a felon - or other prohibited person - for failing to register what he's prohibited from possessing is the same as requiring him to incriminate himself.)

Wickard vs. Filburn established that the Interstate Commerce Clause can be used to regulate and limit activities that don't involve actual interstate commerce. It's been used as a precedent for regulating everything from guns to marijuana.
I don’t think the 1939 Miller 1939 had much of a effect on the Nation, and generally only gun people like us are interested in it.

As stated above, Cruikshank 1873 had a much more effect, the last until today. And the facts of the case are unbelievable, the type of nightmare situation many of want to be prepared against. The topper is, the murders got off scott free.

Ironically Cruikshank is used by proponents of gun control laws as a precedent against the 2cd amendment.
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Yes, Wickard v. Filburn would be good as it will be the basis for holding the Montana manufacture law unconstitutional. It shows how far the Interstate Commerce Clause has been stretched so as to permit the federal gov. to get involved in anything it wants.
I'm taking a law class this fall, and our end of term assignment is a research paper on a Supreme Court case.

Assuming you are an undergrad and want to write about guns:

U.S. v. Miller is an interesting case, and there has been quite a bit written about it recently, see e.g. and David Kopel's articles, most are linked over on Volokh and they are probably available on SSRN for download.

I think a great idea for an undergrad paper would be: Covering the peculiar procedural history of Miller, then describing the formation of the "2a only covers Militias" theory which took root from McReynold's opinion and its acceptance by lower courts - in cases with horrible facts. Kopel did a great article on this in the 10th cir. in Denver Law Review, I think. Then cover the theories rejection in Heller.

If you have a liberal prof, or want an easier topic check out the fight between Gura and the NRA in Heller/Parker & Seegars. Check out Gura's webpage for dime tour, then sign up for Pacer to download the case documents from the court's website.
Those who point out that there isn't much US Supreme Court 2nd amendment case law are correct. It's a topic they have avoided until very recently. And given the fact that it's still very much in flux, it's difficult to do an over-arching paper about the impact. We simply don't know yet how much real world impact these decisions will have.

One of my favorites is the Daubert/Kumho Tire line of cases on court control of expert witnesses. The holdings probably seem arcane to a lay person, but they have had a pretty profound impact on the way tort cases are brought in federal courts. Particularly large case cases against drug companies and the so-called "toxic torts." Suits against BP, for example, will have to be backed by expert testimony which can pass Daubert muster. This is why they were buying up as many biologists as possible and getting them on the payroll.
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