1. The Courts and the Constitution
Photo:
© 2009 The Florida Law Related Education Association, Inc.
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2. The Role of the 3 Branches of Government
Enforces the law
Interprets the law
Makes the law

3. Articles of the US Constitution
Federal Government – Three Branches
Article I Article II Article III
Legislative Executive Judicial
Article III
Section I: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish….”
Checks and Balances/Separation of Powers.

4. It is the responsibility of judges to interpret the Constitution
To give or provide the meaning of something, whether it be a statement, a word, a phrase, or even an entire amendment

5. The Judicial Branch
It is emphatically the province and duty of the judicial department to say what the law is If two laws conflict with each other, the courts must decide on the operation of each This is of the very essence of judicial duty.
Chief Justice John Marshall
Source: Marbury v. Madison, 1803

6. There are parts of the Constitution that do not need interpreting
There are parts of the Constitution that do not need interpreting. What are some examples?
“No person shall be a Senator who shall not have attained the age of thirty years…”
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

7. But, there are also parts of the Constitution that do need interpreting. What are some examples?
“unreasonable searches and seizures”
“freedom of speech”
“right to bear arms”

8. The Decision Making Process
Judges make decisions based on the law, which makes them different from other elected government officials, like legislatures.
Legislators make decisions based on their constituents’ feelings.
Judges must follow the law and should not be influenced by politics, the public’s feelings, or their own feelings.

9. Checks on judges CONSTITUTION STATUTES (SENTENCING)
PRIOR CASE LAW (PRECEDENT)
RULES (PROCEDURAL; JUDICIAL CONDUCT)
APPELLATE REVIEW
DISCIPLINARY PROCESS (JQC) Florida
ELECTION AND RETENTION (state court judges)
IMPEACHMENT

10. How do you think judges should interpret the Constitution?

11. There are generally five interpretive devices or methods that can be used by judges to interpret the Constitution or the law.

12. Most Important Interpretive Device
Precedent
Previous court decisions upon which legal issues are decided

13. Other Interpretive Devices
Literal or plain meaning of words
Intention of the Framers of the Constitution
Basic constitutional values and principles (natural rights, limited government, representative government, etc.)
Contemporary social values and needs

14. Let’s take a look at this rule for example:
Once you enter the school, you are not allowed to leave the Campus.

15. Once you enter the school, you are not allowed to leave the Campus.
Precedent
Literal meaning
Intention of the creators of the rule
Basic school values and principles
Contemporary social values and needs

16. Now that we know how to interpret, let us take a look at the 2nd Amendment of the Constitution.

17. 2nd Amendment
A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

18. OR Is it a right granted to only the military and the police?
Is it an individual right of the people? OR

19. The 2nd Amendment Creates Four Interpretation Issues
Definition of certain words.
The prefatory and operative clause.
The words “right of the people.”
The concept of an inherent right.

20. Issue 1
Militia:
A part of the organized armed forces of a country liable to call only in emergency; body of citizens organized for military purposes
Individual Right:
Rights regarded as belonging fundamentally to each individual
Infringed:
To encroach upon in a way that violates law or the rights of another
Could the words have different meanings today than they did over two hundred years ago?
Definitions from:

21. the right of the people to keep and bear arms shall not be infringed.
Issue 2
2nd Amendment
Prefatory Clause
Operative Clause
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.

22. What does this really mean?
Prefatory Clause
Operative Clause
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.
Is this the only purpose for having the right to bear arms, or is this only one of the purposes for having the right to bear arms?
Do you think the right to bear arms still exists separately from the need for a militia for security?

23. In other words… Does the prefatory clause limit the operative clause
In other words… Does the prefatory clause limit the operative clause? Does the necessity of a militia for security limit the right to bear arms to people in the militia?

24. Issue 3 “right of the people”
First Amendment: “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 to peaceably assemble, and to petition the Government for a redress or wrongs.”
Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

25. Second Amendment: A well regulated Militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.

26. In previous cases involving the 1st, 4th, and 9th Amendments, the words, “right of the people,” have been interpreted to mean an individual right.
Individual Right:
Specific rights that belong to each person, such as those listed in the Bill of Rights

27. Do you think this means that the Second Amendment should be interpreted as an individual right, since it also contains the words “right of the people”?

28. Those rights that you are born with and are not necessarily stated.
Issue 4
Inherent Right:
Those rights that you are born with and are not necessarily stated.
Would self-defense be an inherent right?
If so, would an individual right to bear arms be necessary for the inherent right of self-defense?

29. With all these issues in mind, how would you interpret the 2nd Amendment?
To interpret is to give or provide the meaning of the amendment

30. OR Is it a right granted to only the military and the police?
Is it an individual right of the people? OR

31. Let’s see how the Supreme Court interpreted the 2nd Amendment in the recent case of District of Columbia v. Heller

32. The Case

33. Firearms Control Regulations Act of 1975
Banned handguns for most private use
Mandated permits but only police or security could obtain for the most part
Firearms that were allowed in the home had to be kept “unloaded, disassembled, or trigger locked.”

34. From the D.C. Code…
(a)(4): Registration of Certain Firearms Prohibited
A registration certificate shall not be issued for a:
Pistol not validly registered to the current registrant in the District prior to September 23, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licenses to carry a firearm and that arms the employee with a firearm during the employee’s duty hours or to a police officer who has retired from the Metropolitan police department.

35. From the D.C. Code… (Continued)
(a): Carrying concealed weapons; possession of weapons during commission of crime of violence; penalty.
No person shall carry within the District of Columbia either openly or concealed on their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.

36. From the D.C. Code… (Continued)
: Firearms required to be unloaded and disassembled or locked.
Except for law enforcement personnel described in (b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.

37. US District Court for D.C.
A group of private gun owners filed a claim in the US District Court for D.C.
Claimed the mentioned provisions of the D.C. law violated the 2nd Amendment
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38. Decision of the US District Court in D.C.
Ruled that the 2nd amendment does not allow an individual right to bear arms except when part of a militia (ex. National Guard). Second Amendment does not apply to private gun ownership.

39. What is an Appeal? What is an Appeal? US District Court US District
US Court
of Appeals
United States
Supreme
Court
Appeal
Appeal

40. US Court of Appeals
The case was appealed to the US Court of Appeal in D.C. as Parker v. District of Columbia
As before, the claim was that the mentioned provisions of the D.C. law violated the 2nd Amendment.
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41. Precedent US v. Miller (1939) US Supreme Court case
Interpreted the Second Amendment to apply only to the Militia.
The Second Amendment did not provide for an individual right to bear arms/private gun ownership.
US v. Emerson (2001) Not a US Supreme Court case
United States Court of Appeals for the Fifth Circuit
Interpreted the Second Amendment as granting an individual right to bear arms

42. US Court of Appeals for the District of Columbia Circuit
Held 2-1 that..
The only person with standing for purposes of this case was Mr. Heller since he had applied for a handgun permit and was denied.
The 2nd Amendment does protect private, individual gun ownership, so the D.C. law was unconstitutional.

43. What happens next? US District Court US Court of Appeals United States
Supreme
Court
Appeal
Appeal

44. The US Supreme Court decided to hear the case
Roberts
Stevens
Scalia
Kennedy
Souter
Thomas
Ginsburg
Breyer
Alito

45. Question before the Court
Does the Second Amendment protect an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self- defense within the home?

46. Do you think the D.C. law violates the second amendment?
Should individuals have a private right to own guns even when they are not in the militia?

47. Individually answer the question – Yes or No based on
the facts of the case
the Constitution
Precedent (other cases)
Give 3 reasons in writing.

48. You may use more than one!
Which of the five methods of interpretation would you use in this case?
Precedent
Literal meaning
Framers’ intentions
Constitutional values and principles
Contemporary social values and needs
You may use more than one!

49. You are deciding for Mr. Heller and the private gun owners.
If you answer YES…
You are deciding for Mr. Heller and the private gun owners.
If you answer NO…
You are deciding for District of Columbia (D.C.).
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50. Divide into groups of 5
Choose a Chief Justice
Chief Justice Maintains Order
Poll the Justices. How did each one answer the question and why?
Try to come to a unanimous decision.
You have 10 minutes to discuss then take a final poll.

51. After each Court decides:
Bring the Chief Justices to the front of the room to report on the decision of each group
Tally results and announce

52. What did the real Court decide?

53. The Court’s Decision
2nd amendment protects an individual right to possess a firearm, even if that person is not in a militia
The firearm may be used for traditionally lawful purposes, like self defense

54. Opinion of the Court Dissenters
Roberts
Scalia
Stevens
Souter
Kennedy
Ginsburg
Breyer
Alito
Thomas

55. Why is this case so controversial?
The Supreme Court has not ruled on the meaning of the Second Amendment in 70 years.
First time the Court interpreted the Second Amendment to mean that an individual has a right to possess firearms for private lawful use.

56. The Basis of the Decision
Second Amendment – operative clause was not limited by the prefatory clause
1st, 4th, and 9th Amendments – use the phrase “right of the people” (which exists in the 2nd amendment) to refer to individual rights
Self-defense was an “inherent” right of the people, and therefore guns should be guaranteed for private self-defense

57. What do you think about the Court’s decision?