Controversial Supreme Court Decisions How Justices Interpret the Constitution Controversial Supreme Court Decisions There are, of course, many cases to choose from, but we will limit our discussion to several cases, beginning with the 1965 case of Griswold v. Connecticut. This case directly challenged two Connecticut Statutes, one criminalizing dispensing birth control devices and the other for providing information about birth control. Griswold is an example of Judicial Activism, which found a right of marital privacy in the penumbra of six Amendments of the Bill of Rights.
Griswold is cited in one of the most controversial cases, Roe v. Wade, decided by the Court in 1973. Griswold v. Connecticut, 381 US 479 (1965) This 1965 case is important to feminism because it emphasizes privacy, control over ones personal life and freedom from government intrusion in relationships. The anti-birth control statute in Connecticut dated from the late 1800s but was rarely enforced. Estelle Griswold was the executive director of Planned Parenthood of Connecticut. She opened a birth control clinic in New Haven, Connecticut, with Dr. C. Lee Buxton, a licensed physician and
professor at Yales medical school, who was the Medical Director of the Planned Parenthood New Haven center. They operated the clinic from November 1, 1961 until they were arrested on November 10, 1961. They were subsequently convicted. Griswold v. Connecticut, 381 US 479 (1965) Connecticut law prohibited the use of birth control devices (General Statutes of Connecticut, Section 53-32, 1958 revised): Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be
both fined and imprisoned. Another provision also punished the disseminations of birth control information. "Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender." (Section 54-196). Griswold v. Connecticut, 381 US 479 (1965)
Supreme Court Justice William O. Douglas authored the Griswold v. Connecticut opinion which by a vote of 7 2 struck down the Connecticut law. Justice Douglas emphasized right away that this Connecticut statute prohibited the use of birth control between married persons. Therefore, the law dealt with a relationship within the zone of privacy guaranteed by Constitutional freedoms. The opinion went on to say, would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. Griswold v. Connecticut,
381 US 479 (1965) Justice Douglas famously wrote about penumbras of the rights of privacy guaranteed under the Constitution. Specific guarantees in the Bill of Rights have penumbras, he wrote, formed by emanations from those guarantees that give them life and substance. (Griswold, 484). Penumbra is not a legal term and is generally defined as the partially shaded outer region of a shadow rather than the very dark central region. Griswold v. Connecticut, 381 US 479 (1965) To find this right of marital privacy Justice Douglas cited the
First Amendment right to assemble as having the penumbra of privacy in ones associations. Likewise, freedom of religion protected the privacy of personal religious belief and practice. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Griswold v. Connecticut, 381 US 479 (1965)
Justice Douglas continued, the Fifth Amendment, in its SelfIncrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And finally, the Due Process clause of the Fourteenth Amendment. The present case, then, concerns a relationship lying within the zone of marital privacy emanating from the penumbras of several fundamental constitutional guarantees. Notice, however, no single Amendment specifically mentions the term Marital Privacy or even privacy. Douglas has been criticized for the cutting and pasting of various
Griswold v. Connecticut, 381 US 479 (1965) The Dissent by Justice Potter Stewart joined by Mr. Justice Black In the course of its opinion, the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. [p528] But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law. What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
Griswold v. Connecticut, 381 US 479 (1965) The Dissent by Justice Potter Stewart joined by Mr. Justice Black As Justice Stewart pointed out, at the oral argument in this case, we were told that the Connecticut law does not conform to current community standards. But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases agreeable to the Constitution and laws of the United States. In other word, the majority opinion
substituted its own personal views of what legislation is wise and what is not. Griswold v. Connecticut, 381 US 479 (1965) The Dissent by Justice Potter Stewart joined by Mr. Justice Black If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to
repeal it. That is the constitutional way to take this law off the books. Using inductive reasoning, the Court concluded that the right to privacy was found in the penumbras and emanations of the Constitution and that it protected a right to marital privacy that unquestionably made the decision to use or forego contraception a private one. Griswold v Connecticut is an example of the application of Judicial Activism in that the Court majority struggled to find a rational for overturning the statute and did so by creating this zone of marital privacy based on its view that the Connecticut law does not reflect the standards of the people of Connecticut. The Griswold case paved the way for Eisenstadt v. Baird, which
extended the privacy protection for the use of contraceptives to unmarried people, and Roe v. Wade, which struck down many restrictions on abortion by again relying on this new found right of privacy. Stare Decisis A concept that is important in Supreme Court cases is the concept of Stare Decisis, a Latin term which means to adhere to decided cases. According to this doctrine, when the Court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases, where the facts are substantially the same. The reason for this doctrine is to provide predictability, i.e., security and certainty, to
the law. The privacy discovered in Griswold plays an important role in the next case, Roe v. Wade. Brief Background on Abortion Law The first prohibition on abortions wasnt passed until 1821, with Connecticut being the first to introduce an absolute ban on the practice. By the end of the century, every state in the country (which, in 1900, was 45 states) had laws banning abortion. Receiving or providing an abortion was considered a common law crime in many states, with explicit rules and restrictions outlined by statute in all others. By the time Roe v. Wade made its way to the Supreme Court, abortion was illegal in all cases in 30 states, legal in certain
circumstances (rape, incest, danger to health) in 16 states, and only totally legal in four (Alaska, Hawaii, New York, and Washington). Roe v. Wade, 410 U.S. 113 (1973) This abortion case is frequently cited as one of the most controversial decisions in modern Supreme Court jurisprudence. During confirmation hearings before the Senate Judiciary Committee, Supreme Court nominees usually are asked for their position on Roe and whether they believe it was correctly decided.
Roe v. Wade, 410 U.S. 113 (1973) The plaintiff, Norma McCorvey (died: 2/18/2017), a pregnant woman was given the pseudonym Jane Roe" in court papers to protect her identity. The case challenged the Texas statute which prohibited abortion, except to save the life of the mother and named as the defendant, Henry WADE, the district attorney of Dallas County from 1951 to 1987, who enforced a Texas law. The question in this case was, Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?
Doe v. Bolton, 410 U.S. 179 (1973) The plaintiff, Sandra Cano (died 9/30/2014), a pregnant woman who was given the pseudonym "Mary Doe" in court papers to protect her identity, sued Arthur K. Bolton, then the Attorney General of Georgia. The question in the Georgia case was whether the Georgia law permitting abortion only in cases of rape, severe fetal deformity, or the possibility of severe or fatal injury to the mother is unconstitutional. Other restrictions applied and under this statutory scheme non-residents could not have an abortion in Georgia under any circumstances. Doe had three children and wanted the abortion because she could not afford another child.
Roe v. Wade & Doe v. Bolton The Supreme Court combined these cases for Oral argument since they related to similar subject matter. The Texas law was more restrictive and a product of the late 1800 whereas the Georgia law was enacted in 1968 and was patterned upon the American Law Institute's Model Penal Code which, at that time, was the model legislation in nearly one fourth of the states. Despite the fact that Justices John Marshall Harlan II and Hugo Black had recently retired because of ill health, the cases were set for oral argument on Dec. 13, 1971. Because of these retirements, the Court had only seven Justices. Roe v. Wade & Doe v. Bolton
Because the Texas Abortion Statute in Roe v. Wade was more restrictive than the Georgia Statute in Doe v. Bolton, the attorneys in Roe v. Wade argued first. Sarah Weddington, attorney for Roe, could not locate the constitutional hook of her argument when questioned by Justice Potter Stewart. She was also asked by Justice Harry Blackmun how a physician who had taken the Hippocratic Oath (modified in 1960 to include the phrase, utmost respect for human life from its beginning,) could perform an abortion. She was unable to provide an answer to the question. Roe v. Wade & Doe v. Bolton Jay Floyd, the assistant attorney general of Texas, presented his
case against the legalization of abortion and misfired from the start. In oral argument Floyd contended that the fourteenth Amendment explained that Texas "recognized the humanness of the embryo, or the fetus. The flaw in Mr. Floyds reliance on the Fourteenth Amendment is that the Amendment clearly states, All persons born . . . . Clearly a fetus is not born and not a person under that Amendment. Roe v. Wade & Doe v. Bolton Floyd then was asked when life, in the view of the state of Texas, actually began. After several faltering responses, Floyd could only say, "I don't know, Mr. Justice, there are unanswerable questions in this field." He then argued that women already had a choice on
what they would do with their bodies, and that choice was exercised when they participated willingly with a man to create a child. He also said that women made a choice when they decided to live in Texas, under the laws of Texas. Conference following Oral Arguments After oral arguments the Justices adjourned to their conference room to discuss the cases and to take a tentative vote. Conferences are attended only by the Justices and the content of the discussions are not usually made public. The vote in both cases were indecisive. Justice Blackmun, who retired in 1994, after twenty four years on the Court, agreed in June 1995 to be interviewed for an oral
history project and his 38 hours of recollections were recorded on C-Span. His reason for talking about the Court and the conference following the oral arguments in Roe and Doe was to promote better understanding of the Courts practices. Conference following Oral Arguments Chief Justice Warren Burger selected Justice Blackmun to write a memorandum of the discussion and the tentative vote. Justice Blackmun was the junior justice and it was unusual for a junior justice to be selected to write such a memorandum. Justice Blackmun believed that he was selected because he had served for 10 years a legal counsel to the Mayo clinic and had a deeper understanding of medical practices than the other justices.
Because of the importance of the case, the poor performance of both counsels for Roe and Wade, the tentative vote which was subject to change, and the fact that William Rehnquist had been confirmed to replace retired Justice Harlan and Lewis Powell had been confirmed to replace retired Justice Hugo Black, Justice Blackmun suggested that the cases be reargued. Reargument of Roe and Doe The cases were reargued in tandem on Oct. 11, 1972, with the focus on Roe v. Wade. Sarah Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers, who replaced Mr. Floyd, came under strong questioning from Justices Potter Stewart and Thurgood Marshall.
Mr. Justice Blackmun delivered the opinion of the Court which voted 7-2 to overturn both the Texas and Georgia abortion statues. Justices White and Rehnquist filed separate dissenting opinions. Roe v. Wade & Doe v. Bolton The cases were decided January 22, 1973. The Court in Roe v. Wade held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Due Process clause of the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester; however, the right to an abortion is not
absolute and the Courts holding defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling. The Holding in Roe v. Wade While the Court recognized that a womans right to choose was protected by the Constitution, it also recognized the competing state interests of protecting a womans health and the potentiality of human life. The solution the Court settled on was the establishment of a legal balancing test that weighed the privacy interests of the mother against the interests of the state. The Court based its test on the trimester framework of pregnancy. During the first trimester of pregnancy, when an abortion was
considered a safer procedure than childbirth, the Court reasoned that the decision on whether to abort must be left exclusively to the mother. Therefore, any state or federal regulation that interfered with the right to have an abortion, during the first trimester, would be presumptively unconstitutional. The Holdings in Roe v. Wade & Doe v. Bolton (continued) For the second trimester, the Court ruled that the state could regulate abortion only in order to protect the womans health. During the last trimester, and after the fetus was considered viable (could survive on its own outside the mothers womb), state laws were permitted to restrict and prohibit abortion except when an abortion would be
necessary to preserve the health of the mother. In Doe v. Bolton the holding was similar but the restriction in the Georgia statute prohibiting an abortion for non-residents was a violation of the Privileges and Immunity clause of the fourteenth Amendment and therefore unconstitutional. The Hyde Amendment (1976) The original Hyde Amendment was passed on September 30, 1976 by the House of Representatives, by a 207-167 vote. It was named for its chief sponsor, Republican Congressman Henry Hyde of Illinois. Abortion rights supporters have long rallied against the Hyde Amendment; they say the law, first passed in 1976 and reauthorized every year since, places an undue burden on women who rely on
government programs like Medicaid for health care. Abortion opponents strongly support it: the Hyde Amendment, they contend, sets up an appropriate boundary between private and public dollars for a controversial procedure. The Hyde Amendment (1976) On May 4, the U.S. House of Representatives passed the American Health Care Act of 2017 (H.R. 1628), 217-213. Among other things it restores the longstanding principles of the Hyde Amendment with respect to federally funded health coverage, and blocks for one year, most federal payments to affiliates of Planned Parenthood Federation of America (PPFA). If the pro-life provisions are retained in the U.S. Senate version, it would repeal the provisions of current law that resulted in over 1,000 federally subsidized plans nationwide covering elective abortion (2014 GAO
report), and prohibit any future federal tax credits from subsidizing the purchase of plans that cover elective abortion. Planned Parenthood v. Casey, 505 U.S. 833 (1992) This trimester framework stood as the national benchmark for abortion laws for two decades following Roe, until a 1992 case out of Pennsylvania presented to a conservative Supreme Court the opportunity to reverse Roe once and for all. This case challenged a 1982 Pennsylvania law that instituted a number of hurdles to receiving an abortion. The law required that (1) doctors inform women about the detriments to health in abortion procedures, that (2) women inform their husbands before
receiving an abortion, that (3) parents be notified if a minor is seeking an abortion, and that (4) all women seeking an abortion must wait 24hours after the initial appointment before having the procedure. Planned Parenthood v. Casey, 505 U.S. 833 (1992) The trial court found all of the laws provisions unconstitutional and entered a permanent injunction (ban) against their enforcement. On appeal, the federal appellate court reversed the trial court, declaring all of the restrictions constitutional under Roe save for the spousal notification clause, which it too rejected. The case was then appealed to the Supreme Court. Casey dominated press headlines in the weeks leading up to its
argument due primarily to the fact that two staunch liberals, Justices William Brennan and Thurgood Marshall (who both voted in favor of Roe), had been replaced by Bush-appointed Justices David Souter and Clarence Thomas. This resulted in a bench full of eight Republican appointees. Conservative groups and pro-life advocates were sure that the overturning of Roe v. Wade was little more than an inevitability. Planned Parenthood v. Casey, 505 U.S. 833 (1992) The final opinion in Planned Parenthood v. Casey struck down Pennsylvanias law as unconstitutional by a 5-4 margin. The plurality opinion in Casey, authored jointly by Justices OConnor, Kennedy, and Souter, stated that the Court was re-affirming the essential
holding of Roe that if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Most importantly, the plurality opinion overturned the trimester framework established in Roe to outline a different test that accommodated for the advancement of medical technology that made the viability of the fetus far different than at the time Roe was decided. The Partial-Birth Abortion Ban Act of 2003 Congress passed the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particular
method of ending fetal life in the later stages of pregnancy. The Act does not regulate the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions take place. In the usual secondtrimester procedure, dilation and evacuation (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The Partial-Birth Abortion Ban Act of 2003 The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted the federal Act and various state statutes, including Nebraskas, is a
variation of the standard D&E, and is herein referred to as intact D&E. The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull. The Partial-Birth Abortion Ban Act of 2003 Congress found that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. Second, the Acts language differs from that of the Nebraska statute struck down in Stenberg. Among other things,
the Act prohibits knowingly perform[ing] a partial-birth abortion that is [not] necessary to save the life of a mother, 18 U. S. C. 1531(a). It defines partial-birth abortion, 1531(b)(1), as a procedure in which the doctor: (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mothers] body , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mothers] body , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the fetus. Gonzales v. Carhart, 550 U.S.
124 (2007) This case was appealed by the government from an adverse ruling by the United States Court of Appeals for the Eighth Circuit (located in St. Louis, MO). Carhart and other abortion doctors challenged the Acts constitutionality on its face, and the Federal District Court granted a permanent injunction prohibiting petitioner Attorney General from enforcing the Act. The court found the Act unconstitutional because it (1) lacked an exception allowing the prohibited procedure where necessary for the mothers health and (2) covered not merely intact D&E but also other D&Es. The Eighth Circuit upheld the District Court, ruling that a health exception is required for all bans on abortion procedures when "substantial medical authority" supports the necessity of the procedure. circuit Gonzales v. Carhart, 550 U.S. 124 (2007)
The question before the Supreme Court is whether the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother? No. The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to an abortion. Gonzales v. Carhart, 550 U.S. 124 (2007) Justice Anthony Kennedy wrote the opinion for the majority. The Court held that, under the most reasonable
interpretation, the Act applies only to the intact D&E method (also known as "partial-birth abortion") and not to the more common D&E procedure. The Act's application was limited by provisions that restrict enforcement to cases where the physician intends to perform an intact D&E and delivers the still-living fetus past specific "anatomical landmarks." Because the majority found that the Act applies only to a specific method of abortion, it held that the ban was not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. The Court also held that Congress, after finding intact D&E never to be medically necessary, could validly omit a health exception from the ban, even when "some part of the medical community" considers the procedure necessary.
Whole Womans Health v. Hellerstedt, 579 US ___ (2016) In July 2013, the Texas Legislature enacted House Bill 2 (H. B. 2 or Act). Ignoring the Supreme Courts holding in Planned Parenthood of Southeastern Pa. v. Casey that if there exists an undue burden on a womans right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the purpose or effect of the provision is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. The Act contained two provisions that seemed to create obstacles to abortion. The first was referred to as the admitting-privileges requirement, and the second, the
surgical-center requirement. Whole Womans Health v. Hellerstedt, 579 US ___ (2016) The admitting-privileges requirement says that a physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced. The surgical-center requirement says that the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.
The Supreme Court concluded that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. ABORTION SUMMARY While Roe v. Wade remains a hot button issue, the subsequent cases of Planned Parenthood v. Casey, Whole Womans Health v. Hellerstedt and Gonzales v. Carhart, which clarified certain provisions of the Partial-Birth Abortion Act of 2003, have now guaranteed a womans right to an abortion, with
certain limitations late in the pregnancy. THE SECOND 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. United States v. Miller, 307 U.S. 174 (1939) United States v. Miller involved a criminal prosecution
under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine's Day Massacre, the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short - barreled rifles and shotguns) to be registered with the Miscellaneous Tax Unit (later to be folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF) which at the time was part of the Bureau of Internal Revenue (ancestor of today's Internal Revenue Service), with a $200 tax paid at the time of registration and again if the firearm was ever sold. United States v. Miller, 307 U.S. 174 (1939)
On March 30, 1939, the Supreme Court heard the case. Attorneys for the United States argued four points: 1.The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury. 2. The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce. 3.The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. 4.The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.
United States v. Miller, 307 U.S. 174 (1939) On May 15, 1939 the Supreme Court, in an opinion by Justice McReynolds, held: The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, Is not unconstitutional as an invasion of the reserved powers of the States. Not violative of the Second Amendment of the Federal Constitution.
EXPLANATION OF THE HOLDING IN U.S. v. MILLER In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
EXPLANATION OF THE HOLDING IN U.S. v. MILLER Gun control advocates argue that, for over six decades, the United States Circuit Courts, with very few exceptions, have cited Miller in rejecting challenges to federal firearms regulations. Gun rights advocates claim this case as a victory because they interpret it to state that ownership of weapons for efficiency or preservation of a well-regulated militia unit of the present day is specifically protected. Furthermore, such advocates frequently point out that short-barreled shotguns have been commonly used in warfare, and the statement made by the judges indicates that they were not made aware of this. EXPLANATION OF THE HOLDING IN U.S. v. MILLER
Gun rights advocates also point out that because the defense did not appear, there was arguably no way for judges to know that during World War I, between 30,000 and 40,000 short-barreled pump-action shotguns were purchased by the US Ordnance Department and saw service in the trenches and for guarding German prisoners. District of Columbia v. Heller, 554 U.S. 570 (2008) District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and
prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. District of Columbia v. Heller, 554 U.S. 570 (2008) Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District
Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individuals right to possess firearms and that the citys total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. District of Columbia v. Heller, 554 U.S. 570 (2008) District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark case in which the Supreme Court of the United States held in a 54 decision that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home and that Washington, D.C.'s
handgun ban and requirement that lawfully-owned rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated this guarantee. Due to Washington, D.C.'s special status as a federal district, the decision did not address the question of whether the Second Amendment's protections are incorporated by the Due Process Clause of the Fourteenth Amendment against the states. The Incorporation Doctrine The Supreme Court would begin to tackle these questions. In the case of U.S. v. Cruikshank (1876), the Court held that the First Amendment right to freely assemble and the Second Amendment right to
keep and bear arms did not apply to state governments. States could limit these rights without violating the Fourteenth Amendment. Over the next seventy-five years, the Courts use of the Fourteenth Amendment increased. It used the Due Process clause to strike down many state laws and to incorporate parts of the Bill of Rights. The Incorporation Doctrine In the process of using its power to bring the states under the provisions of the Bill of Rights, several Supreme Court justices wondered how far incorporation should go. In 1937, Justice Benjamin Cardozo wrote that the Court was selectively incorporating rights it considered so rooted
in the traditions and conscience of our people as to be ranked as fundamental. These fundamental rights, Cardozo added, included only those implicit in the concept of ordered liberty. Cardozos words, unfortunately, give little guidance for determining what rights are fundamental. The most famous debate on incorporation was waged between Justices Hugo Black and Felix Frankfurter. The Incorporation Doctrine Dissenting in Adamson v. California (1947), Black supported total incorporation, the idea that every provision of the Bill of Rights applies to the states. The due process clause of the Fourteenth Amendment, Black argued, protects the life,
liberty and property of Americans, and the most complete expression of American liberty is found in the Bill of Rights. Black argued: The words No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States seem an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the states. Incorporated or Not Incorporated? 1st Amendment: Fully incorporated. 2nd Amendment: Fully incorporated. 3rd Amendment: No Supreme Court decision; 2nd Circuit found it to
be incorporated. 4th Amendment: Fully incorporated. 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment (some states utilize a Criminal Information). 6th Amendment: Fully incorporated. 7th Amendment: Not incorporated (suits at common law w/a statutory amount requirement jury trial). 8th Amendment: Incorporated with respect to the protection against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of
"excessive fines" and "excessive bail" protections. McDonald v. Chicago, 561 U.S. 742 (2010) Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicagos firearms laws. A City ordinance provides that [n]o person shall possess any firearm unless such person is the holder of a valid registration certificate for such firearm. The Code then prohibits registration of most handguns, thus effectively banning handgun possession by
almost all private citizens who reside in the City. Otis McDonald, who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers. McDonald v. Chicago, 561 U.S. 742 (2010) Justice Alito announced the judgment of the Court ( 7- 2, Stevens & Breyer dissenting) and delivered the opinion of the Court. Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a
District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbias, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. McDonald v. Chicago, 561 U.S. 742 (2010)
The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was of great importance but not of much difficulty. Id., at 247. In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government. The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our countrys federal system. The provision at issue in this case, 1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge the privileges or immunities of citizens of the United States or deprive any person of life, liberty, or property, without due process of law. The Court eventually moved in that direction by initiating what has been
called a process of selective incorporation, i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. McDonald v. Chicago, 561 U.S. 742 (2010) With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as we have said in a related context, whether this right is deeply rooted in this Nations history and tradition. Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to
the present day, and in Heller, we held that individual self-defense is the central component of the Second Amendment right. Heller makes it clear that this right is deeply rooted in this Nations history and tradition. In summary, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. Summary of Gun Control Cases The Brady Handgun Violence Prevention Act (Pub.L. 103159, 107 Stat. 1536, enacted November 30, 1993), often referred to as the Brady Act or the Brady Bill, is an Act of the United States Congress that mandated federal
background checks on firearm purchasers in the United States, the final version was passed on November 11, 1993. It was signed into law by President Bill Clinton on November 30, 1993 and the law went into effect on February 28, 1994. The Act was named after James Brady, who was shot by John Hinckley Jr. during an attempted assassination of President Ronald Reagan on March 30, 1981. The Brady Bill allowed states and the DC to also institute restrictions on gun purchases and registration. Summary of Gun Control Cases District of Columbia v. Heller, 554 U.S. 570 (2008) District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and
prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Summary of Gun Control Cases McDonald v. Chicago, 561 U.S. 742 (2010) Otis McDonald and other residents of Chicago, were prevented from obtaining guns by a city ordinance which provides that [n]o person shall possess any firearm unless such person is the holder of a valid registration certificate for such firearm. The Code then prohibits
registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. In both cases, the Supreme Court held that the Second Amendment, made applicable to the states via the Due Process Clause of the 14th Amendment, protects the right to keep and bear arms for the purpose of self-defense. So, Hows that working out in Chicago? The Chicago Police Department says it is conducting "a very comprehensive review" after the city experienced one of its most violent Fourth of July weekends in recent years, with at least
102 people shot between late Friday afternoon and early Wednesday (2017). The Taking Clause of the Fifth Amendment . . . nor shall private property be taken for public use, without just compensation. On the day before Thanksgiving in 2000, Susette Kelo was living in her lovingly restored Victorian home in a working-class neighborhood in New London, Connecticut, when a notice was tacked on her front door from the New London Development Corporation (NLDC), The notice informed Susette that she had ninety days to vacate the premises because her home was being condemned. The land would be transferred to a private developer who would build an expensive hotel,
high-rise condos, an office building and other unspecified upscale amenities. The neighborhood simply was not generating the taxes that the city decided it needed. Kelo v. City of New London, 545 U.S. 469 (2005) On the day before Thanksgiving in 2000, Susette Kelo was living in her lovingly restored Victorian home in a working-class neighborhood in New London, Connecticut, when a notice was tacked on her front door from the New London Development Corporation (NLDC), The notice informed Susette that she had ninety days to vacate the premises because her home was being condemned. The land would be transferred to a private developer who would build an expensive hotel, high-rise condos, an office building and other unspecified upscale amenities. The
neighborhood simply was not generating the taxes that the city decided it needed. Kelo v. City of New London, 545 U.S. 469 (2005) Susette and six neighbors decided to fight back arguing that the Fifth Amendment prohibits the use of eminent domain to transfer property from one private party to another solely for so-called economic development the promise of more jobs and tax revenues. The taking clause of the Fifth Amendment imposes two important limits on the taking of private property: First, the use must be public, and second, just compensation must be paid. Kelo v. City of New London, 545 U.S. 469 (2005)
Originally, public use was understood by everyone courts, local governments, and the general citizenry to have its ordinary meaning, and eminent domain was used only for projects that would be owned by and open to the public, such as roads and public buildings. The public use restriction in the Takings Clause fundamentally changed with the Supreme Courts 1954 decision in Berman, v. Parker, 348 U.S. 26 (1954). In 1945, Congress passed the District of Columbia Redevelopment Act, creating the District of Columbia Redevelopment Land Agency, whose purpose would be to identify and redevelop blighted areas of Washington, D.C. Congress gave the new agency the power of eminent domain. Berman, v. Parker, 348 U.S. 26 (1954)
Berman and the other appellants owned a department store in one blighted area targeted by the commission and objected to the seizing of their property solely for beautification of the area. The landowners brought a civil suit in federal district court challenging the constitutionality of the Act. Their case was dismissed. They then appealed directly to the U.S. Supreme Court. Question presented to the Court: Did the seizing of Berman and the other appellants' property for the purpose of beautification and redevelopment of the community violate the Takings Clause of the Fifth Amendment? Berman, v. Parker, 348 U.S. 26 (1954) In a unanimous opinion authored by Justice William O. Douglas, the Court
found that the Fifth Amendment does not limit Congress' power to seize private property with just compensation for ANY specific purpose. The Court concluded that the power to determine what values to consider in seizing property for public welfare is Congress' alone. "If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way." Well, so much for the Constitutional requirement that the taking be for a public purpose now the taking can be ANY specific purpose. The Court in this case broadened the ability of a government entity to take private property. This taking has been characterized as providing a public benefit by beautifying the District. New Definition of Eminent Domain Two things happened in the wake of Berman.
First, the use of blight as a rationale for eminent domain was expanded dramatically. For many cities the concept of blight: was no longer limited to run-down slums instead, it could be applied to virtually any area that the government determined was no longer functionally viable or was economically obsolete. Second, the seizure of well-maintained properties in the name of economic development became commonplace. Poletown v. Detroit (1981) & County of Wayne v. Hathcock (2004) In an effort to bolster Detroit's crumbling economic base, a working-class neighborhood known as Poletown was demolished to make way for a new
General Motors plant that would create public benefit of more jobs and higher tax revenue. The Michigan Supreme Court in Poletown v. Detroit (1981), upheld the taking, ruling that eminent domain could be used for public benefit. In July 2004, the Michigan Supreme Court in County of Wayne v. Hathcock, unanimously overturned the Poletown decision. The court decisively rejected the notion that a private entitys pursuit of profit was a public use for constitutional takings purposes simply because one entitys profit maximization contributed to the health of the general economy. The Kelo Decision is Controlling Despite the Michigan Supreme Courts vindicating the constitutional protection of peoples property rights the Kelo decision the following year demonstrated that the interests of the financially
powerful outweigh the rights of citizens and the Supreme Court has redefined public use. Public Use, of the Fifth Amendment, has become Public purpose, and then public benefit. The Kelo decision opened the floodgates of abuse, spurring local governments to press forward with more than 117 projects involving the use of eminent domain for private development in just one year. Aftermath of Kelo In the first year after the Kelo decision was handed down, local governments threatened with eminent domain or condemned at least 5,783 homes, businesses, churches, and other properties so that they could be transferred to another private party.
Indeed, the practice became so routine and widespread that the Institute of Justice has documented more than ten thousand (10,000) instances of filed or threatened condemnations for private parties in the five years from 1998 to 2002. Justice John Paul Stevens throws a Lifeline Justice John Paul Stevens, who wrote the Courts opinion in Kelo, noted that states were free to provide greater protection against eminent domain. This could be accomplished legislatively or by amending state constitutions. What seemed like a throwaway line from Stevens quickly took on profound significance, when the American public expressed
unprecedented outrage over the Kelo opinion. Pushback - Outrage Over the Kelo Opinion As soon as state legislatures began to convene in the fall of 2005, many introduced legislation to curb eminent domain abuse. One year after Kelo, thirty our states had enacted legislation that placed limits on eminent domain. Nine states submitted proposed changes to their constitutions to limit eminent domain to public use as usually understood. All nine amendments passed with anywhere from 55 to 86 percent of the vote. Georgia Constitutional Amendment Georgia. By a vote of 82.7 percent to 17.3
percent, Georgia voters endorsed a constitutional amendment requiring that elected officials formally vote for or against each use of eminent domain in their communities. This amendment complements new property rights protections passed earlier in the year by the state legislature. Further Protection in Georgia April 6, 2006, Georgia Governor Sonny Perdue signed into law House Bill 1313, legislation that significantly tightens the definition of blight in the States eminent domain laws. The bill creates objective standards of blight and requires that individual parcels, as opposed to areas, be designated as blighted in order to be subject to
condemnations for private development. It emphasizes, Property shall not be deemed blighted because of esthetic conditions. The bill also provides that economic development is not a public use that justifies the use of eminent domain. This bill provides strong protections for homes and businesses against the abuse of eminent domain for private development, said Institute for Justice attorney Bert Gall. Under Georgia law, it is now the governments burden to show that a piece of property is blighted. Essentially, a property has to be a danger to public health or safety to face the governments wrecking ball. Thats a big step forward because the old definition of blight was so broad and vague that it could have applied to practically every neighborhood in the state. New London, Connecticut, Status
Update Susette Kelos old neighborhood has been razed, but no redevelopment has occurred. Dozens of acres of land stand vacant where once a close-knit community lived. Susettes little pink house has been moved to a nearby lot and stands as n inspiration to all who work to protect property rights.