Overview Of The Law
In Chapter 1 of your e-textbook, you covered cases, which are opinions written by judges. (See Chapter 1, pg. 6). The cases represent a substantial part of the law that exists in the U.S. While state courts have a very wide range of areas they can render opinions on, the federal court system’s primary law-making area are disputes that require the interpretation of the U.S. Constitution and federal law. The factual scenario below provides a good example of how the federal courts interpret laws and write opinions. In that scenario, a state has passed a law that a citizen believed was unconstitutional. That person filed a lawsuit in federal court challenging the law, and the lawsuit has made it up to the U.S. Supreme Court. As part of the Court’s decision, they will need to interpret an amendment to the constitution, and if there is a majority on the Court that agrees on both the interpretation and how that interpretation will resolve the dispute, they will write an opinion that will be published. That published opinion becomes law, and the Court’s interpretation of the amendment will be the amendment’s meaning for all future cases.
Factual Scenario:
You have just been appointed Associate Justice to the U.S. Supreme Court and a new case has come up involving a state’s law attempting to regulate both the sale and ownership of firearms in the State of Confusion (the 51st state of the United States). One of the key legal issues requires the Court to determine the definitional meaning of the Second Amendment to the U.S. Constitution, and this is, in fact, one of the law-making functions of the federal courts generally and the Supreme Court specifically. That is they get to decide what both the language in federal laws and in the U.S. Constitution mean. And in this case, you must define what the Second Amendment means in terms of a state’s right to regulate the ownership and sale of firearms within its boundaries.
The language of the Second Amendment is as follows: “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.”
The two major opposing interpretations of the 2nd Amendment’s meaning are as follows:
Interpretation #1: That the key phrase in the amendment is the first clause, “A well regulated Militia”, and therefore when the amendment also talks about “the right of the people to keep and bear Arms”, it is referring to a state’s right to maintain a militia and not an individuals right to own firearms. As such, states would be free to pass any laws they wish limiting the ownership and/or sale of firearms within the state; or
Interpretation # 2:. The phrase, “the right of the people to keep and bear Arms” is a standalone clause in the amendment, and therefore, the amendment confers a personal right of people in the U.S. to own firearms. As such, states have very limited rights, if any, to regulate the ownership and/or sales of firearms by their citizens.
Discussion Question:
Pick one of the two major opposing interpretations above and argue in favor of it to your fellow justices. While in reality, the Supreme Court has ruled on this issue, for the purpose of this discussion we will assume they have not. Therefore, there is no “correct position”, it is simply how convincing you can be to your other justices. Please remember, that this is not about your personal preferences or views. You are a judge and you need to argue from the meaning of the text. In other words, look at the language of the Second Amendment and determine what it means in terms of the two major interpretations listed above.
