Agenda for 13th Class

1. Agenda for 13th Class • Handouts • Slides • Readings: “Common Law I” • Name plates • Lunch sign up • Wednesday, 1-2PM • Dean’s Conference Room (Law School, 4th floor, Rm. 431) • Review of Last Class • Heller (continued) • Gun rights after Heller • Introduction to Common Law

2. Assignment for Next Class • Review any questions from today’s assignment that we don’t discuss in class • Read “Common Law I” packet • 7 Blackboard questions on “Common Law” • Questions to think about / Short papers • Everyone should be prepared to discuss all the questions on the last page of the “Common Law I” handout • Mandatory writing • Group 1. Qs 1 & 5 • Group 2. Qs 2 & 6 • Group 3. Qs 3 & 7 • Group 4. Qs 4 & 8 • Optional writing -- All questions that are not mandatory • 2nd Writing Assignment • Due Thursday, 2/28 at 5PM

3. District of Columbia v Heller • District of Columbia • Barred possession of handguns • Did not allow operable long guns in home • Allowed long guns only if registered, unloaded, and disassembled or bound by a trigger lock, unless in place of business or used for lawful recreational activities • Heller brought suit challenging law as violation of 2nd Amendment • Scalia + 4 • Individual right to possess guns for self-defense • Did not decide level of scrutiny • DC cannot • ban handguns in home • Require long-guns to be inoperable in the home • Stevens + 3 • Agrees that 2nd Amendment rights are individual • But no right to guns for self-defense • Breyer + 3 - reasonable regulations ok, courts must balance interests

4. Questions • 5. How did Scalia and Stevens interpret U.S. v Miller? Which had the better interpretation? • 6. Heller is often described as an originalist opinion, because so much of both Scalia’s and Stevens’s opinions discuss historical evidence. Another approach to constitutional adjudication treats the constitution as a “living” document that should be interpreted in light of modern concerns and conditions. As David Strauss put it, this approach “looks to the future, not the past [and] tries to bring laws up to date, rather than deferring to tradition.” How would a justice who believes that the constitution should be interpreted as a “living” document to be “updated” decide the issues in U.S. v. Heller? • 7. Can you argue that Scalia’s and/or Stevens’s opinion in Heller was (or were) not, in fact, originalist, but that one or both was (or were) really arguing in “living constitutionalist” fashion to “update” the amendment to accommodate modern conditions? • 8. What sort of restrictions on gun ownership and use are allowed by Heller? Why are they allowed?

5. Gun Rights after Heller • US v Marzzarella (3rd Circuit 2010) • Intermediate scrutiny for issues involving 2nd Amendment rights • Government must have “important” interest • There must be a “reasonable fit” • Law banning possession of gun with obliterated serial number does not violate 2nd Amendment • Government has important law enforcement interest in tracing guns to their owners after a crime • Serial numbers are only bothersome to criminals • Moore v Madigan (7th Circuit 2012) (Posner) • Illinois law makes it illegal to carry a loaded gun outside the home • Except in business or place owner allows it • Illinois law is unconstitutional • Self-defense is as important on the streets as in the home • Evidence mixed on whether concealed weapons increase or decrease crime • No other state bans weapons outside the home as broadly as Illinois

6. Questions • 1) What were Posner’s strongest arguments in Moore v. Madigan? What were Williams’s strongest arguments in her dissent in Moore v. Madigan? Overall, which did you find more persuasive, the majority or dissent in Moore v. Madigan? • 2) Did Posner’s or the Williams’s opinions in Moore v. Madigan apply “intermediate scrutiny”? If you think they did, quote language from the opinion supporting your view. If you think they did not, how would their reasoning or conclusions be different if they did? • In answering 3-8, assume that the court applies intermediate scrutiny and consider Part III (pp. 88-90) of the Supreme Court’s opinion in Heller as well as the historical and non-historical materials about gun rights distributed in class. • 3) Are the following laws constitutional: (a) laws banning ordinary persons (e.g. not the police or federal law enforcement) from possessing guns in the post office, (b) laws banning ordinary persons from possessing guns in public schools, (c) laws banning convicted felons from possessing guns, (d) laws banning the mentally ill from possession guns, and (e) laws banning ordinary persons from possessing machine guns.

7. Questions • 4) Would a law that banned a magazine capable of storing more than 10 bullets or capable of being quickly replaced be constitutional? A magazine is an ammunition storage and feeding device. So a magazine with 10 bullets would enable the shooter to fire 10 bullets consecutively without having to reload the weapon. If a magazine is easily replaced, a shooter could quickly replace a spent magazine (the one with no remaining bullets) with a loaded magazine. Without such a magazine, the shooter would have to reload bullets into the magazine one at a time, which is very time consuming. • 5) Washington D.C. requires all gun owners to register their guns. To register, the gun owner must supply his or her name, address, and information about the gun. The gun owner must also submit to being fingerprinted and photographed, must attend a firearms training course, and must submit to a background check every six months. Is the law constitutional? Does it matter that registration of handguns (pistols and revolvers) was common in the U.S. for over a century, but that it was rare for long guns (e.g. rifles) to be subject to registration requirements? Does it matter that registration of handguns was common, but that the fingerprinting, photographing, and course requirements are novel?

8. Questions • 6) Would a law that required a five-day waiting period before buying a gun be constitutional? Such a law would require the purchaser to first go to a store to express an interest in buying a gun and then require the purchaser to go back to the store five or more days later to actually purchase it and take possession of it. • 7) A federal statute, 18 USC 922(g)(3) makes it unlawful for “any person …. who is an unlawful user of … any controlled substance … to … possess … any firearm or ammunition.” Is 18 USC 922(g)(3) constitutional? Note that under federal law, marijuana is a “controlled substance.”

9. Questions • 8) A New York City law severely limits the ability of residents to possess guns outside their homes unless they have a special and difficult to get permit. Those without the special permit may possess or transport guns outside their homes only if they are taking their guns to one of seven licensed shooting ranges in New York City. New Yorkers may not transport guns to second homes, to hunting grounds, or to shooting ranges outside the city. New York City argues that the ban on transportation to places other than licensed shooting ranges is justified because the seven licensed shooting ranges must keep rigorous records. If the law did not ban transportation to other places, people caught transporting guns could just claim they were transporting them to a shooting range or other location outside the city that did not keep records.

10. Common Law Interpretation I • Common law means many things • Body of law established by judicial decisions • Not based on statute or Constitution • Most of US contract, tort, and property law • “Judge made law” • Opposite of civil law • Common law is legal system derived from England and used in US, Canada, Australia and other former English colonies • Civil law is legal system derived from France, Germany, or other continental Europeans systems in used in their colonies as well as in Japan, China, and other countries which voluntarily adopted such legal systems • Opposite of equity • Any judicial interpretations, even if of statute or the US Constitution • “common law” of Sherman antitrust law • In this course, especially in this section, focus is on first meaning of common law

11. Common Law Interpretation II • Common law built up case by case by judges trying to do what seems both consistent with precedent and just • Prior cases inevitably leave undecided questions, which judges must try to resolve • Language of prior decisions not as important as language of statutes • No one is a textualist when it comes to common law interpretation • Policy, what seems just, is more important • Although judges are not always explicit about policy or vision of justice which justifies their decisions

12. Common Law Interpretation III • Holdings • Rule of law is not always stated in case itself • Even if rule of law is stated in case itself • Later judges not bound by that statement of holding • Later judges are free to interpret case in different way • Free to construct different holding, as long as consistent with • Facts and ruling in prior case • Convincing policy argument • Example • Case 1. Facts: Loaded MAC-10 traded for drugs • Decision . Violation of 924(c)(1) • Rule stated in case: “trading gun for drugs violates 924(c)(1), because guns increase the danger of violence in drug transactions” • Case 2. Facts. Unloaded Beretta 93R traded for drugs • Could say holding of Case 1 was “trading loaded gun for drugs violated 924(c)(1),” because trading an unloaded gun does not make the drug transaction any more dangerous • Implausible to say holding of Case 1 was “trading MAC-10 for drugs violated 924(c)(1),” because no policy-relevant difference between MAC-10 and Beretta 93R