Write a 600-word (2 page, double-spaced) summary of each day’s material, including: (a) a brief summary and analysis of the day’s reading; (b) any questions or concerns you have about the day’s materi

– But some parts of the Constitution rely on moral standards: 8 th Amendment’s ban on “cruel and unusual” punishment. – And courts often invoke moral standards:

“reasonable” accommodation, “all deliberate speed.” Ronald Dworkin: Morality is the glue that holds legal judgments together. • Dworkin: legal interpretation involves trying to make sense of complex systems: laws from different times and different jurisdictions, and similarly varying precedents. • We should find our way through this maze using morality as a guide. Overall, it is and must be a moral system. • Where there is room for interpretation, we should do the right thing. C. Process Theory • General Attitude: When possible, we should allow elected representative final say.

However, when democratic processes of election (broadly understood) are themselves in danger, we can act. • Justifies activism in voting rights, access to office, education, and certain types of discrimination. • Otherwise, urges judicial restraint. D. Originalism • General Attitude: the Constitution and its various Amendments mean what they meant when they were ratified. Interpretation is therefore an exercise in historical excavation. • Two Varieties:

– Original Intent: what they meant to the people who ratified them – Original Public Meaning: what they meant to people at the time, in general A Few Concerns with Originalism 1. Is the legitimacy of our system really based on the beliefs of white men in the late 18 th century? 2. Given how our laws have changed, an originalist reading would create major upheaval. And doesn’t precedent matter? 3. Original meanings were themselves contested. E. Eclecticism • General Attitude: We need to take an ad hoc approach, mixing different approaches as necessary, beginning at the bottom, not the top (Roberts). • Decisions should use mixed methods: “text; original understanding; post -ratification history; precedent; moral principle; and prudential considerations” (CL, 66). • Especially strong when multiple considerations move in the same direction. A Concern with Eclecticism? • What can judges do when different considerations point in different directions?

– Dworkin: rely on morality, but this just reduces eclecticism to the moral reading • (Federal) Judge Richard Posner: It comes down, and should come down, to the discretion of smart people.

– If a case reaches the Supreme Court, it means that there is no obviously correct answer. – Instead, there are several, among which judges must choose. 3. Exercise: Rewrite the Second Amendment • The Amendment’s original text: “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.” • Your task: Rewrite the Amendment, to (1) make it clearer, and (2) if appropriate, change its original meaning to better suit the modern world. 4. A Brief History of Second Amendment Interpretation • Two possible interpretations: • The Collective Interpretation: The right to bear arms is primarily a collective right, held by the states and their militias: the Federal Government cannot disarm the states. • The Individual Interpretation: The right to bear arms is an individual right, held by individuals against the Federal government and incorporated against the states by the 14 th Amendment. Early History: Arms in the Revolutionary War • In the 1760s, British loyalists attempted to disarm both militias and private citizens in separatist areas, with the obvious goal of preventing insurrection. • In the early 1790s, states feared that the Federal government would emulate the British and become tyrannical, and thus sought explicit protection of state militias. Three Moments, 1: United States v. Miller (1939) • Background – After the St. Valentine’s Day Massacre of 1929, the National Firearms Act of 1934 was passed to regulate the interstate commerce in arms. – Jack Miller was charged under the act for transporting a sawed -off double -barrel shotgun from Oklahoma to Arkansas without proper authorization, but challenged the conviction on Second Amendment groups, taking an Individual Interpretation. Ruling: The “Reasonable Relationship” Standard • “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well -regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” • “=n 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.” Three Moments, 2: The Mulford Act (1967) • Background:

– Amid complaints about police harassment of African Americans, in the mid -1960s the Black Panther Party began armed observations of police in action, openly carrying in accordance with then -California law. – In response, then -governor Ronald Regan signed The Mulford Act, which reversed California law open carry law. The Act was supported by the NRA, then an organization largely dedicated to promoting marksmanship. Sacramento, 1967 Mulford Aftermath • Although the Act was specifically aimed at African Americans, it spawned an era of increased gun regulation in general. • A leadership change in the NRA shifted the organization away from marksmanship and towards political action, advocating for decreased regulation and an individual interpretation of the right to bear arms. Three Moments, 3: District of Columbia v. Heller (2008) • Background:

– Washington DC had among the strictest gun regulations in the country, which made it (1) illegal to carry an unregistered handgun, and (2) essentially impossible to register a handgun, exception with special one -year permission from the Chief of Police. – Dick Heller, a DC police officer, applied for a one - year permission, was denied, and filed suit on Second Amendment grounds. The Heller Ruling • “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self -defense within the home.” • “The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.” • “The prefatory clause comports with the Court’s interpretation of the operative clause. The ‘militia’ comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.” Gun Rights Since Heller • Because Washington DC is administered by the Federal government, the Heller ruling initially only held that the Second Amendment constricted Federal action. • However, in McDonald v. City of Chicago (2010), the Court held that the Second Amendment is incorporated against state and local governments by the due process clause of the Fourteenth Amendment.

– McDonald’s lawyers had argued for incorporation based on the privileges and immunities clause, which would have effectively overturned Slaughterhouse , but the majority did not agree (although Thomas did, in his concurring opinion). 5. Super - Legislatures Revisited? Posner’s “Defense of Looseness” • Redefinition of “originalism” – Originalism cannot just be about the text. – It must also comprise the interpretive frameworks common at the time. – In the late -18 th century, “loose construction” was the default method of legal interpretation. • Originalism in the American context thus requires a certain looseness. Loose Construction William Blackstone : “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable.

And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law .... As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” The Consequences of Loose Construction • By its very nature, loose construction leaves room for interpretation. • When there is room for disagreement, the court tends to split down ideological (liberal - conservative) lines. • To minimize this sort of thing, we may need to draw on another doctrine — judicial restraint.