Provided to students at the University of Münster and Unversity of Osnabrück.

1. 1
American Constitutional LawAmerican Constitutional Law
Learning about Interpretation & Incorporation
through the
2nd
Amendment
Note – throughout these notes there are links (in bluein blue) to the
Interactive ConstitutionInteractive Constitution containing background information on the topics
discussed in the slides.

2. 2
Lecture StructureLecture Structure
I. Source of rights
II. Scope of protections: state action doctrine
III. Interpreting the constitution
IV. The incorporation doctrine
V. Amending the Constitution

3. 3
Source of RightsSource of Rights
●
Constitution
●
Bill of Rights
●
Federal Law
●
State Constitution
●
State Law
●
Local Law

4. 4
What Federal Law AddsWhat Federal Law Adds
●
Constitution only protects
people from the
government.
– federal law can regulate
rights between private
individuals.
●
Court may read
constitutional right narrowly

5. 5
Criminal ProcedureCriminal Procedure
Rights we will not be covering
in class:
●
4th Amendment4th Amendment – privacy
●
5th Amendment5th Amendment – Due
Process, self-incrimination
●
6th Amendment6th Amendment – right to
counsel & jury; double
jeopardy
●
8th Amendment8th Amendment – cruel
and unusual punishment

6. 6
Limits on PowerLimits on Power
●
Structural Limits
– Separation of powers
– Checks and balances
– federalism
●
Civil Liberties
– a.k.a. fundamental rights
– Rights given to individuals to
check the power of
government.

7. 7
State ActionState Action
●
Constitutional rights only limit
government actions.
– Private conduct generally does
not have to comply with the
Constitution.
●
Constitution applies to
government at all levels (for
reasons we will soon discuss)
– Federal, State, Local
– and to actions of its officers
This
But not this

8. 8
When Does the Constitution
Limit Private Actions?
When Does the Constitution
Limit Private Actions?
●
13th
Amendment – bans slavery
– only provision that specifically regulates private conduct.
– Prohibition was another - 18th
Amendment
●
Public Functions Exceptions
– private entity exercises power traditionally exclusively reserved for
government.
●
Entanglement Exceptions
– Gov't encourages private action

9. 9
Public Function ExceptionPublic Function Exception
●
Becomes an issue when a
private entity is carrying out
a function that was
traditionally and exclusively
carried out be the
government.
●
Traditional public functions
include:
– Elections
– Company towns
●
But not:
– Schools
– Shopping malls
– Utility companies
Roebling, New Jersey: A town that helped build
some of America’s most famous bridges

10. 10
Entanglement ExceptionEntanglement Exception
●
The Constitution applies if the
government affirmatively authorizes,
encourages, or facilitates private
conduct that violates the Constitution.
– government somehow enables the
constitutional violation by private actors.
– Example – Shelly v. KramerShelly v. Kramer
●
Race based restrictions in private sales
contracts for houses that would be
enforced by courts deemed to be state
action because the courts and the private
actions were entangled.

11. 11
Interpreting the ConstitutionInterpreting the Constitution
●
Various Approaches
– Textualism
– Original Meaning
– Precedent
– Pragmatism
– Moral Reasoning
– National Identity
– Structuralism
– Historical Practices
●
See StudIP/ Learnweb for handout
●
Source: Modes of Constitutional Interpretation, Congressional
Research Service (2018)

12. 12
2nd
Amendment2nd
Amendment
●
“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.”
●
What does this mean? Does it apply to individuals or militias?
●
Before revolution, British tried
to take guns away from groups
of armed citizens (militias).
●
Remembering this, 2nd
Amendment outlawed forceful
disarming of the people in the
future.

13. 13
U.S. v. Miller (1939)U.S. v. Miller (1939)
●
Facts: federal law required
certain types of guns to be
registered with the federal
government.
●
Defendants were charged
with violating the law when
they transported a sawed-
off double-barrel 12-gauge
shotgun across state lines
without a registration.
●
Holding: “we cannot say that
the Second Amendment
guarantees the right to keep
and bear such (a gun)…. With
obvious purpose to assure the
continuation and render
possible the effectiveness of
such forces (militias), the
declaration and guarantee of
the Second Amendment were
made. It must be interpreted
and applied with that end in
view.”

14. 14
District of Columbia v. Heller (2008)
Question 1
District of Columbia v. Heller (2008)
Question 1
●
Facts: Washington D.C.
prohibits the possession of
handguns & requires
residents to keep their
lawfully owned firearms,
“unloaded and dissembled
or bound by a trigger lock or
similar device” unless being
used for lawful recreational
activities.
●
Justice Scalia (majority
opinion):
– In interpreting this text, we are
guided by the principle that “[t]he
Constitution was written to be
understood by the voters; its
words and phrases were used in
their normal and ordinary as
distinguished from technical
meaning….” Normal meaning…
known to ordinary citizens in the
founding generation.

15. 15
District of Columbia v. Heller
Question 2
District of Columbia v. Heller
Question 2
●
“we find that they (the words
of the 2nd Amendment)
guarantee the individual right
to possess and carry
weapons in case of
confrontation.”
●
“we do not read the Second
Amendment to protect the
right of citizens to carry
arms for any sort of
confrontation, just as we do
not read the First
Amendment to protect the
right of citizens to speak for
any purpose.”

16. 16
District of Columbia v. Heller
Questions 3 & 4
District of Columbia v. Heller
Questions 3 & 4
●
“the inherent right of self-
defense has been central to
the Second Amendment
right.”
●
“banning from the home the
most preferred firearm in
the nation to ‘keep’ and use
for protection of one’s home
and family,” violates the
constitution.

17. 17
District of Columbia v. Heller (Dissent)
Question 5
District of Columbia v. Heller (Dissent)
Question 5
●
Stevens (dissenting):
– A conclusion that the
Second Amendment
protects an individual right
does not tell us anything
about the scope of that right.
●
Whether it also protects the
right to possess and use
guns for nonmilitary
purposes like hunting and
personal self-defense is the
question presented by this
case. The text of the
Amendment, its history, and
our decision in United
States v. Miller, 307 U. S.
174 (1939), provide a clear
answer to that question.

18. 18
Trump’s Space ForceTrump’s Space Force
●
The President has asked
Congress to create a 4th
branch of
the military: a space force.
●
Does Congress have this power?
●
Congress has the
express power to:
– raise and support
Armies
– provide and maintain a
Navy
●
How should this be
interpreted?
– Does a space force fit?

19. 19
Congress Shall Make No LawCongress Shall Make No Law
●
Look at the first line of the 1st
Amendment.
– “Congress shall make no law . . . .”
●
The rights found in the Bill of Rights protect people from...
– Only Congress?
– Prior to the passage of the 14th
Amendment, the answer was yes,
only Congress and other federal actions were restricted by the
fundamental rights found in the Constitution.
●
Remember, each state has their own constitution granting
rights to its citizens

20. 20
Incorporation DoctrineIncorporation DoctrineIncorporation DoctrineIncorporation Doctrine
●
States cannot infringe on the
liberty of individuals.
– What is liberty?
– Up to the Supreme Court to
decide which rights in U.S.
Constitution amount to “liberty
rights”.
– When right is deemed “liberty”,
it is imposed on state and local
actors.
“No State shall make or enforce any
law (that) . . . deprive(s) any person of
life, liberty, or property, without due
process of law.”
– 14th Amendment

21. 21
Incorporation Example: 2nd
AmendmentIncorporation Example: 2nd
Amendment
●
In District of Columbia v.
Heller, Court said 2nd
Amendment contains
individual right to have
guns.
●
The case involved a
challenge to a Washington
D.C. handgun restriction.
– D.C. is NOT a state!
●
Test:
– whether a particular Bill of Rights
guarantee is fundamental to our
scheme of ordered liberty and
system of justice.
●
McDonald v. Chicago (2010):
– Right to have gun is fundamental
to our scheme of ordered liberty
and system of justice because
“[s]elf-defense is a basic
right...the central component of
the Second Amendment right.”

22. 22
Amending the ConstitutionAmending the Constitution
●
Two ways to
start the
process
●
Two ways to
finish the
process.
●
Has only
happened 27
times in 230+
years.