Fourteenth Amendment to the United States Constitution

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Fourteenth Amendment to the United States Constitution Implementing the Bill Of Rights To The States

The Amendment Text

This is the Text of the 14th Amendment to the Constitution Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age¹², and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Bill of Rights

The Bill of Rights The First Ten Amendments to the Constitution were adopted in 1791, and were implemented to protect the individuals from the Federal Government. The Supreme Court decided early on that the Bill of Rights were not applicable to the states in Barron v. The Mayor and City Council of Baltimore 32 U.S. 243 (1833) John Marshall stated in the opinion “had the framers of the Bill of Rights Amendments intended them to be limitations on the powers of the state governments, they would have...expressed that intention...in plain and intelligible language.”

From the enactment of the Constitution until the fourteenth amendment, Federal courts had little control over the substance of state legislation and rights were only protected by the individual state constitutions. The Fourteenth Amendment changed the dynamic of Federal-State Relations.

What changed in the United States is the nature of citizenship. The Fourteenth Amendment made it to where for the first time the rights Americans had as citizens was dependent on your Federal Status of citizenry. Before your status as an American was dependent on your status as a Kentuckian, now your rights are protected federally, and the states must comply.

The incorporation comes from the Due Process Clause “Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The life, liberty, and property without due process of law is given to mean that the Bill of Rights applies to the States.

In the terms of how the Bill of Rights applies to the states has been an issue of debate from the end of the Civil War, well into this century.

The First Amendment rights of Religious Freedom

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; The First Section of the Religion Section is what is known as the Establishment Clause.The Establishment Clause has been understood to mean. No official church No Coercion Punishment for Beliefs No Preference Participation

The Court has evaluated cases of Establishment Clause violation by using a Three Prong Test created in Lemon vs. Kurtzman 403 U.S. 602 (1971) is that the case must have a secular legislative purpose, that its principle effect must neither advance nor inhibit religion, and it must not foster an excessive government entanglement with religion.

Religion and the Public Schools

There are Three Main Issues The Court has Contended With When It Comes To Religon In Taxpayer Funded Public Schools 1. Accommodate students’ desire to receive religious instruction during school hours

A. Instruction on Public School Premises: McCollum v. Board of Education, 333 U.S. 203 (1948), the public school allowed privately-employed religious teachers to conduct classes on the public school’s premises, during school hours. While attendance was voluntary, students who did not attend the religious classes studied secular subjects elsewhere in building. The Court struck down this scheme as a violation of the Establishment Clause, on the theory that the program helped religious groups obtain pupils “through the use of the state’s compulsory public school machinery.”

B. Release for Classes held Elsewhere: Zorach v. Clauson, 343 U.S. 306 (1952), upheld a program which was quite similar to the one struck down in McCollum except that the students who elected to participate were released to receive religious instruction away from the public school’s physical facility.

C. Use of School Facilities Facilities by Student Groups: College and Universities A state-supported school’s policy of allowing religious groups to use its physical facilities does not violate the Establishment Clause if the policy is truly neutral as between religious and non-religious groups. Thus in Windmar v. Vincent, 454 U.S. 263 (1981), a state university banned the use of its facilities for purposes of worship by student-run religious groups, but allowed all non-religious student groups to use them. In holding that this policy was unconstitutional on free speech grounds, the Court rejected the university’s claim that an equal-access policy would violated the Establishment Clause. McCollum Distinguished: It was precisely the fact that the facilities were also available to non-religious groups that made for situation in Widmar distinguishable from the use of school facilities for religious purposes in McCollum. Here, equal access would not “confer any imprimatur of state approval on religious sects or practices,” and the advancement of religion would not be the “primary effect” of such a policy. Possibility of Dominance by Religion: However, the majority in Widmar put aside the issue of whether a different result would be required if there were evidence that religious groups would dominate the use of facilities under an open-access scheme. Arguably, such dominance would cause the scheme to run afoul of the requirement that the state not pursue policies whose “primary effect” is to advance religion.

Public High Schools: Congress has made the result of Widmar applicable to high schools receiving federal financial assistance. The equal access act, enacted in 1984, requires public high schools receiving federal financial assistance to allow student religious groups to hold meetings before and after school hours, if other extra-curricular groups are given similar rights. The bill applies only to meetings that are student-initiated, voluntary, and carried out without sponsorships by the school or its employees (who may be present only as non-participants).

The Equal Access Act was found constitutional, in Board of Education v. Megens, 496 U.S. 226 (1990). A majority of the Court agreed that where a public high school allows student religious groups to meet outside of school hours on the same basis that non-religious extracurricular groups are allowed to meet, this does not violate the Establishment Clause any more than does a similar policy at the University Level.

Elementary Schools: Even if it is a public elementary school that allows religious to meet on the same after-school basis as non-religous groups, there is no Establishment Clause problem, the Court has held. Good News Club v. Milford Central School, 533 U.S. 98 (2001). And this is true even if the attendees will be Elementary School Students. The Five-Justice Majority that decided Good News was not worried that young children might think that the school was endorsing a religious message, because “we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the [religious group] were excluded from the public forum.

Prayer No Problem: The equal access principle of Widmar is now so powerful that even if the religious group wants to conduct activity that is essentially a prayer service, there is apparently no establishment clause problem with allowing the group to do so, as long as the facilities are equally opened to non-religious groups. This in Good News, the majority was not troubled by the fact that the program in question “chooses to teach moral lessons from a Christian perspective through live storytelling and prayer.” Nor did the majority seem to disagree with the dissent’s characterization of the program as “an evangelical service of worship calling children to commit themselves in an act of Christian Conversion”--however the speech was labeled, it could be permitted without Establishment Clause problems as long as non-religious speech was allowed on the same basis.

However if the Organization Exists is School Led Then We Can Have Some Problems. If it is not truly voluntary, or if school officials actively participate, this would almost certainly be sufficient governmental sponsorship to make the meeting a violation of the Establishment Clause.

Rights for Non-Religious Groups: Similarly, if a school allowed religious groups to conduct voluntary meeting outside of schools hours, but did not grant this right to non-religious groups, there would probably be an establishment clause violation, on the theory that this type of conduct had the purpose and effect of primarily aiding religion; such a policy would also arguably offend the free speech rights of the non-religious groups.

Funding of Student Activities: The “equal access” principle of Widmar-that a school must treat religious and non-religious activities equally-now applies even where what the school is supplying is funding for activities, rather than merely access to pre-existing facilities. In Rosenberger v. University of Virginia, 515 U.S. 819 (1995), the Court held by a 5-4 vote that it would not be an Establishment CLause violation for the University of Virginia to fund an evangelical Christian student publication on the same basis that it funded other student publications, so long as the funds were paid to third parties rather than to the students running the publications.

3. Allow the reading of state-composed prayers or the Bible, as part of a daily ritual

A. State Composed Prayer First, the in-classroom reading of a state-composed “non-denominational” prayer was held to violate the Establishment Clause, in Engel v. Vitale, 370 U.S. 421 (1962). The Court reached this determination even though no child was compelled to recite the prayer. Neither this non-compulsory aspect, nor tho non-denominationally, saved the scheme, because it was clearly part of a “religious program carried on by government.”

B. Reading from Bible: Similarly, a daily classroom ritual of reading from the Bible was struck down in Abington School District v. Schempp, 374 U.S. 203 (1963). As in Engel, it made no difference that no child was compelled to participate.

C. Voluntary Silent Prayer: A state statute that explicitly authorizes “voluntary” silent prayer in the public schools will not be saved from constitutional problems merely because the prayer is silent and non-compulsory. Thus the Supreme Court has struck down an Alabama statute which authorized a one-minute silent period at the start of each school day which was to be used “for meditation or voluntary prayer.” Wallace v. Jaffree, 472 U.S. 38 (1985). The vote was 6-3. Rationale of Majority: The Wallace Majority concluded from various pieces of evidence that the legislature’s sole purpose in enacting the statue was to endorse religion, a violation of the first prong of Lemon. (For instance, the bill’s chief sponsor testified that the bill’s purpose was to return voluntary prayer to the schools.) Since the first prong of Lemon was not satisfied, the Court did not need to reach the issue of the statute’s conformance with the second and third Lemon prongs (primary effect and state entanglement).

D. Ceremonies: The Court so held in Lee v. Weisman, 505 U.S. 577 (1992). Lee also establishes that even a completely non-denominational school prayer will violate the Establishment Clause if it is state-sponsored. Student-Sponsored Speeches: A key aspect of the Establishment Clause problem in Lee v. Weisman was that the school clearly endorsed the prayer. In party to get around Lee, a number of school districts after Lee put in place procedures whereby a student can be elected by the student body to be a speaker at a school-sponsored event. But a post-Lee case, in which the Court struck down a pre-football-game prayer delivered by an elected student speaker, suggests that the technique will rarely be successful. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) Prior to the litigation, the Santa Fe, Tex. school district elected a “Chaplin” of the high school student council each year, whose function was to deliver a prayer over the public address system before each varsity football game. After this practice was challenged on Establishment Clause grounds, the school instead instituted a formal written “policy” for dealing with the issue. The policy provided for two elections. First the class would vote by secret ballot whether a “statement or invocation” should be delivered before each game, to “solemnize the event.” If the vote was yes, a second election would be held to choose the spokesperson to deliver the invocation/statement. Prayers delivered: The student body in fact voted to have the invocations, and those invocations turned out to be, the lower court later found, prayers that appealed to “distinctively Christian beliefs.” By a 6-3 vote, the Court found that the school policy violated the Establishment Clause. Not Private Speech: The majority rejected the school district’s claim that the pre-game invocations should be regarded as “private speech.” The school policy itself encouraged religious messages. And the fact that the invocation was delivered at a school-sponsored event, over a school-owned public address system, added to the impression that this was school sponsored event, over a school owned public address system, added to the impression that this was school-sponsored, not private prayer. Sham: Thus the majority found it highly significant that the current policy had evolved from the prior practice of having a student chaplin, and that prior version of the policy had candidly included the title “Prayer at Football Games.” In sum the ostensibly religous-nuetral policy was a sham.

4. Modify the curriculum in order to accommodate the religious views of some. Anti Evolution Laws. Epperson v. Arkansas, 393 U.S. 97 (1968) The state may not design or modify the curriculum of its schools in order to further religion at the expense of non-religion, or one set of religious beliefs over others.

Rationale: The Epperson Court concluded that the statute violated the Establishment Clause because its sole purpose was a religious on: to bar the teaching of a theory that was at odds with the “fundamentalist sectarian conviction” that man was created in the manner described in the bible. Even if the statue was intended only to prohibit teaching Darwinian theory as “true,” the law’s solely religious motivation was sufficient to make it unconstitutional.

Requirement that the Bible be taught: May the state require that the Biblical theory of creation be taught in addition to the theory of Evolution? Such a requirement could, of course be defended on the grounds that it preserves neutrality as between religion and non-religion, and presents all viewpoints. However, if such a requirement were imposed solely or primarily for the same religious purpose as the Epperson Statute, it would violate the Establishment Clause. Thus in one case, the Supreme Court held that a Louisiana statute, the “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act, was motivated solely by religious purposes, and therefore violated the Establishment Clause. Edward v. Aguillard, 482 U.S. 578 (1987). Statute Stricken: The outcome of the case essentially turned on the extent which one believed that the Louisiana legislature could have had a valid secular purpose in enacting the statute. Seven members of the Court represented in a majority opinion by Justice Brennan, concluded that there could not have been such a secular purpose. Brennan concluded that the “preeminent purpose of the Louisiana legislature was to advance a religious view point that a supernatural being created humankind.” In reaching this conclusion, Brennan relied heavily upon the legislative history of the statute, including statements made by the bill’s sponsor and testimony at the legislative hearings by the leading expert on creation science: both of these sources indicated that the theory of creations science includes a belief in the exisitence of a “supernatural creator,” and is thus a religious doctrine.

The Second Amendment

How does the 14th Amendment effect State Legislation in terms of Gun Control?

Text of the 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.

Court Interpretation Since the enactment of the 14th Amendment the Court has never ruled on the exact interpretation of the second amendment until a 2008 case, District of Columbia v. Heller, 128 S.Ct 2783 (2008), the Court struck down the District of Columbia’s strict gun-control laws on Second Amendment grounds. The majority asserted that “the inherent right of self-defense has been central to Second Amendment right,” and concluded that the Amendment confers on private individuals a right to keep basic firearms, including handguns at home for self-defense.

Significance of Heller: The only significant prior Supreme Court decision on the meaning of the Second Amendment, a 1939 case, had been widely interpreted as saying that the Second Amendment gave no rights to private individuals, and merely protected the right of “well regulated militias” (now known as State National Guard Units) to keep their members armed while on duty But Heller concluded that this was not the correct reading of the 1939 case, and that the Amendment confers on private citizens, not just militias, the right to keep at least some kind of weapons for self-defense and recreational purposes.

DC Statute: The DC Gun Control statute at issue in Heller was among the two or three strictest such statutes in America. The Statute contained two distinct prohibitions that were challenged. First, the statute effectively banned the possession of handguns in the home-only registered firearms could be kept, and handguns could not be kept, and handguns could not be registered. Second, the statute required that firearms other than handguns could only be kept in the home if they were kept, and handguns could not be registered.

Challenge by P: The Plaintiff, Dick Heller, was a police officer who wanted to keep a handgun in his house. He asserted that each of the above two prohibition violated the Second Amendment right to bear arms.

Majority Upholds: By a 5-4 Vote, the court agreed that both provisions of the DC statute violated violated P’s Second Amendment Rights. The majority opinion was by Justice Scalia, and is probably his most important opinion since he joined the Court in 1986. Four members of the majority were those generally considered the conservative bloc of the court-in addition to Roberts, Thomas, Alito. The fifth vote is given to Justice Anthony Kennedy.

Language and History: Scalia’s opinion began by considering the history and language of the Second Amendment. He separately analyzed the “prefatory” clause and the “operative” clause

Operative Clause: As to the meaning of the operative clause, Scalia pointed to several elements that he said demonstrated that the clause was intended to give right to individuals, not just members of state militias. First, the operative clause codified a “right of the people” and the use of this phrase by other constitutional provisions (e.g., the First Amendment’s assembly-and-petition clause) demonstrated that the phrase customarily referred to individual rights, not collective ones, he said. Second, historical and linguistic analysis showed that the phrase “keep and bear arms” was “unambiguously used to refer to the carrying of weapons of an organized militia.” In summary, he said, the text and history of the operative clause “conferred an individual right to keep and bear arms.” Prefatory Clause: Next, Scalia analyzed the prefatory clause, that is, the reference to “a well regulated militia,” Scalia rejected the dissent’s reading of this term as being limited to officially-organized state-militias. For Scalia, the term “the militia” refereed to “all males physically capable of acting in concert for the common defense,” and the adjective “well-regulated” implied merely “the imposition of proper discipline and training.” The reference to “security of a free state” refereed merely to a “free country” or “free polity.” not to states as the operators of state militias. So the prefatory clause was not inconsistent with Scalia’s “individual rights” interpretation, he argued.

Historical Purpose: Scalia then analyzed the historical purpose of the Amendment. The history behind the enactment of the Second Amendment, he said, was that English tyrants had eliminated the ability of “the Militia” to resist tyranny “not by banning the militia but simply taking away the people’s arms,” enabling a standing army supporting the tyrant to “suppress political opponents.” Consequently, Scalia asserted, “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right...was codified in a written constitution.” Summary of History and Language: In sum, the history leading to the enactment of the Second Amendment, and the common 18th-century meaning of the phrases used in it, convinced Scalia that the framers intended to grant individual citizens the right to bear arms for self-defense, not merely to confer such a right upon official state militias. Later Interpretation: Scalia then argued that post-enactment interpretation of the Second Amendment had reached this same conclusion, that the Amendment conferred an individual right to bear arms for self defense.

Distinguishing Miller: Scalia paid special attention to U.S. v. Miller, 307 U.S. 174 (1939), the Supreme Court’s principal prior case on the meaning of the Second Amendment. Miller involved criminal charges of transporting an unregistered short-barreled shotgun;the Court rejected the defendants’ argument that their conduct was protected by the Second Amendment.

Dissent’s view rejected: The dissent in Heller contended that in Miller, the Court had held that only Military uses of guns were protected by the Amendment. But Scalia disagreed about what Miller said: Miller said “only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” So for Scalia, Miller was not inconsistent with the Heller majority’s conclusion that the Amendment protects the rights of law-abiding citizen to possess guns for self-defense.

What the Amendment Protects: Having concluded that the Amendment protects at least some right on the part of non-military individuals to bear arms, Scalia now turned to the scope of the right. On this score, he indicated merely that the right was not absolutely or unlimited. The majority was not, he said, “casting doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensistive places such as schools and government buildings, or laws imposing in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Dangerous and Unusual Weapons: Furthermore, Scalia said, the Amendment protects only the carrying of weapons that were “in common use at the time” the Amendment was enacted, so that “dangerous and unusual weapons” would not be protected. In an Ambiguous sentence, Scalia seemed to be saying that what he called “weapons that are most useful in military service-M-16 rifles and the like, may be banned because they were not in common use at the time the Amendment was enacted.

Application to DC statute: Scalia then applied his reading of the Second Amendment to the DC statute before the Court. He addressed both of the District’s bans: the complete ban on handgun possession, and the requirement that any non-handguns kept at home be kept in unloaded and inoperable form.

Ban on Handguns: As to the absolute handgun ban, Scalia asserted that “the inherent right of self-defense has been central to the Second Amendment right.” And, he said, D.C.’s complete ban on handgun possession in homes “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for lawful purpose.” Since handguns were the favored method of self defense in the home, a complete ban on them violated the Amendment. But Scalia did not specify what precise standard should be used, reserving that issue because the hand gun ban was unconstitutional “under any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Requirement that guns be unloaded and trigger-protected: Scalia then turned to the requirement that any gun the possession of which is not completely forbidden be kept unloaded and inoperable in the home. This requirement, he said, “makes it impossible for its citizens to use for the core lawful purpose of self-defense and is hence unconstitutional.” Therefore, this requirement, too, violated the Second Amendment. Rejects “interest-balancing” approach: As noted, Scalia did not specify exactly what standard of review should be used in evaluating government actions that impact Second Amendment rights. But Scalia did reject the standard proposed by Justice Breyer in his dissent. Breyer proposed an “interest-balancing inquiry.” for any regulation that significantly implicated competing constitutionally-protected interests, Breyer would ask merely whether the statute burdens a protected interest in a way or to an extent that is “out of proportion” to the statute’s beneficial effects on some other protected interest, Breyer would ask merely whether the statute burdens a protected interest in a way or to an extent that is “out of proportion” to the statute’s beneficial effects on some other protected interest. But Scalia dismissed this approach, saying that “a constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” In any event, he said. the Second Amendment “surely elevates all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Application to Heller: Scalia then wrapped things up by saying that so long as the plaintiff (Heller) was not “disqualified from the exercise of Second Amendment rights,” the District of Columbia “must permit him to register his handgun ad must issue him a license to carry it in the home.”

Handgun Violence: Scalia conceded that handgun violence was a serious problem in America, and that “some measures regulating handguns” would be constitutionally acceptable methods of dealign with the violence problem. But, he said, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Applies to States and Cities:

Heller applied only to the Federal Government, since the District of Columbia is part of that Government. But in a post-Heller case, McDonald v. City of Chicago, a 5-4 majority of the Court decided that the 2nd Amendment applies the same way to State and Local Governments as it applies to the Federal Government.

Facts of McDonald: Mcdonald involved the very strict gun-control laws of two citieis, Chicago and Oak Park Illinois. The Ordinances effectively banned possession of handguns by almost all private citizens residing there. As in Heller, the Plaintiffs were private citizens who wanted to keep guns in their homes for self-defense. Majority Says Incorporation Applies: Five Members of the Court agreed that the Second Amendment applies to state and local governments, not just to the Federal Government. However, no majority agreed with on why this should be. Justice Alito wrote for a four-justice plurality, and Justice Thomas, in an concurrence, added the fifth vote but on a different theory.

Alito’s Plurality Opinion: Justice Alito (joined by Roberts, Kennedy, and Scalia). said the Second Amendment was incorporated in the 14th Amendment’s Due Process Clause, and thereby made applicable to the States.

Fundamental: Under the Court’s precedents, for any Bill of Rights guaranteed to be incorporated into Due Process, the guarantee had to be “fundamental to our scheme of ordered liberty.” For Alito, it was clear that the right to keep and bear arms satisfied this test: the right is “deeply rooted in this nation’s history and tradition.” For instance, he said, at the time the 14th Amendment was ratified, 22 of the 37 states in the union had state constitutional provisions protecting that right.

Remanded: The Court did not decide whether the two city ordinances violated the Second Amendment; the Court remanded the cases to the lower courts to decide this question. Thomas and the P&I Clause: Justice Thomas supplied the needed fifth vote, but he disagreed on the appropriate rationale. Thomas believed that the appropriate means to make the Second Amendment applicable to state and local government was by use of the 14th Amendment “privileges and immunities” clause. Thomas thought that the Due Process Clause should be interpreted only to guarantee “processes,”and that a Bill of Rights guarantee that was essentially substantive rather than procedural should be made applicable to the states and only if the drafters of the 14th Amendment would have regarded it as a privilege and immunity associated with national citizenship. Standard to be Used: It is unclear what standard the court will use for reviewing governmental restrictions that impair Second Amendment Rights. Justice Scalia avoiding answering this question in Heller, saying merely that “under any of the standards of scrutiny that we have applied to enumerated Constitutional rights,” the District’s complete ban on handguns in the home would “fail constitutional muster.” And the Court did not address the issue of standard of review in McDonald, either.

Intermediate-Level Review: The most likely outcome is that the Court will end up judging gun-control regulations by use of some variant of mid-level review. Interest-Balancing Rejected: Justice Scalia’s majority opinion in Heller explicitly rejected at least one version of intermediate-level scrutiny, namely the “interest balancing” approach advocated by Justice Breyer, under which the Court should ask “whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statue's salutary effects upon other important governmental interests.” Substantial-Relation-To-Important-Interest: However, Scalia did not comment on the more traditional form of mid-level review, under which the question is whether the means chosen by government is “substantially related” to the achievement of an “important” governmental interest (a standard used in several free-speech areas such as regulation of commercial speech) There is a good chance that this version of mid-level review will prove to be the ultimate standard. Effect on Gun Laws: Even though we now from McDonald that the Second Amendment applies to state and local gun laws, it’s not clear that governments will lose very much of their practical power to regulate gun use. Handgun Bans: Heller and McDonald together pretty clearly mean that a total ban on handgun possession in the home would be unconstitutional, as would a requirement that non-handguns be stored in an interoperable and unloaded manner. So, for instance, Chicago’s virtually complete ban on handguns-at issue in McDonald, but as to which the Supreme Court remanded to the lower courts-is vulnerable. But few cities, and no states, regulate handguns nearly as extensively as DC and Chicago do, so their restrictions may well survive.

Licensing: It seems likely that licensing requirements will not be found to violate the Second Amendment as long as the procedures for obtaining a license are not unreasonably burdensome, and are directed towards keeping guns out of the hands of towards keeping guns out of the hands of people who do not have a second amendment right to posses them. So, for instance since Heller makes it clear that government may ban felons and the mentally ill from possessing hand guns, a licensing requirement that would deny permits to such people-and that would give government a reasonable amount of time to check whether the applicant fell into these categories-would presumably be valid even if some form of strict scrutiny were used.

Concealed-Carry Permits: Similarly, it seems likely that the Amendment will be found not to prohibit governments from banning the carrying of concealed weapons in public places. The Majority opinion in Heller commented, seemingly approvingly, that “the majority of the 19th Century Courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” Furthermore, if as the Heller majority asserts the thrust of the Second Amendment is to protect citizens’ right of self-defense at home, it’s hard to see how the Amendment is violated by prohibiting the carrying of concealed weapons outside the home.


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