Con Law Outline
Con Law Outline
I. Intro to Individual Rights under the Constitution
A. Theories on Constitutional Interpretation
1. Originalism
a. The Ct is justified in protecting constitutional rights only if they are clearly stated in the text or intended by the framers.
b. Desire to limit unelected judges in a democratic society.
c. If the Const is silent, it is up to the leg., not the cts to decide the law. Const can only evolve by amendments.
2. Non-Originalists
a. Ct should have substantial discretion in determining the meaning of the Const.
b. The Const. evolves by interpretation and not only by amendments to meet the needs of a society that is advancing technologically and morally.
3. Second Amendment Example
a. U.S. v. Emerson (N.D. Texas 1999)
1. In Texas when a restraining order was granted in automatically included a ban on bearing arms. Emerson claimed that this interfered w/ his 2nd Amend rights.
2. Does the 2nd Amend cover an individual right to bear arms apart from a well regulated militia.
3. Textual Analysis: supports the individual right b/c the Amend’s independent clause (“the right of the people to keep and bear Arms, shall not be infringed”) is not qualified by the subordinate clause (“a well regulated Militia, being necessary to the security of a free State”).
4. Historical Analysis: England and the colonies supported an individual right to bear arms as a potential check against tyranny. However, only white men who were allowed in the militia had arms.
5. Structural Analysis: 2nd Amend placement w/in the Bill of Rights supports individual right concept.
6. A law-abiding citizen’s rights can’t be abridged by a boilerplate state ct divorce order.
7. Social Policy/ Consequential/ Prudential Argument: what are the consequences of this Amend? High death rates from guns.
b. U.S. v. Miller (U.S. 1939): The Ct did not specifically answer if the right to bear arms is a collective or individual right, however it did state that it can be regulated.
c. Ethos- who we are and how we make decisions (often contradictory: majoritarian v. individual dignity).
4. Majority and splinter opinions
a. 5+ = “the opinion of the Ct.”
b. ................
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