Read DC v Heller (p. 144 in 5th Ed.) Also available online here. (Read each Justice’s opinion)
Pre-Discussion Questions: These must be submitted to your discussion section BEFORE class starts on Tuesday. They are worth 5 of the 20pts for the assignment.
1. Summarize the case in about a paragraph (What events triggered the case–not what the judgments are).
2. What does “prefatory clause” mean? (Say what it is generally, not the specific one in this case).
3. What does “operative clause” mean? (Say what it is generally, not the specific one in this case).
4. Summarize Scalia’s main argument in about a paragraph.
5. Summarize Steven’s main argument in about a paragraph.
6. Summarize Breyer’s main argument in about a paragraph.
In-Class Discussion Questions/Assignment
- Scalia argues that the prefatory clause and the operative clause are logically connected but that the prefatory clause “does not limit or expand the scope of an operative clause.” What does he mean? (II A)
- What is Scalia’s argument for why the 2nd Amendment should be construed as applying to all Americans (as individuals)? (II. A. 1. a) Evaluate his argument. What assumptions does it make?
- How does Scalia interpret the meaning of “arms.” What is his theory of interpretation? (II. A. 1. b.)
- How does Scalia determine the meaning of the prefatory clause? What is his theory of interpretation for determining the meaning of the words and phrases? (II. A. 2)
- Read the second paragraph of III. What does he mean? Do it conflict with what he says at the end of III? I.e., “[T]he fact that modern developments have limited the degree of fit between the prefatory clause and the protected right canon change our interpretation of the right.” Explain your answer.
- In II. 3, what does Scalia appeal to in order to explain his understanding of the relationship between the prefatory clause and the operative clause. Is this consistent with his earlier theory of interpretation? Explain.
- Read the 1st paragraph. What is Justice Stevens’ view? What is his theory of interpretation here?
- Justice Stevens appeals to Miller. Why is this important for his argument? I.e., why is it important from the point of view of constitutional interpretation?
- How does Stevens interpret the prefatory clause differently from Scalia? What’s his theory of interpretation? (I)
- (a) What is Steven’s interpretation of “the right of the people” (i.e., who does it include). (b) What is his argument against Scalia’s view? Evaluate the argument.
- (a) What is Justice Breyer’s second argument against Justice Scalia? (b) Scalia mentions that the 2nd Amendment should not be read as an unlimited right; What sorts of considerations might qualify to impose limits on it? (c) By what principle(s) (if any) can any constitutional right be legitimately limited?
- (a) What is Justice Breyer’s argument in the first paragraph of II? (b) What is he saying about the role of theories of interpretation in judicial reasoning? (b) Do you agree or disagree? Defend you answer.