Constitutional Law Notes

Constitutional Law - Day 1 Overview

• Course Overview
  • Put “Constitutional Law” in subject line of emails.
  • On-Call Group: GROUP B: ON CALL TUESDAYS
  • Office Hours Mondays 11-12
• Questions
  • What makes Constitutional Law distinct?
  • What does our Constitution do?
  • Is constitutional law “law” or politics?
• Background: What makes Constitutional Law distinct?
  1. Different origin
     • Our foundational American document: Constitution
     • Begins with the document (4 pieces of parchment)
     • Focused throughout on the document and how it is interpreted
     • Not a lot of specificity in the Constitution itself
  2. Constitutional law is far less set.
     • Rules are far less set than in other areas
       • But some are brightline rules
       • Lot of room for interpretation and argument overall
       • Hard for us to project what constitutional questions will be in the future
       • More dissents in con law than other areas
         • Justices themselves disagree in good faith involving interpretation
     • Our focus will be on tools lawyers use to bring discipline to constitutional law
       • Shifting doctrines (rules, tests, standards, etc.)
         • Set by judges
         • Not things found in the document but the rules/tests/standards justices create and set into opinions to provide judges guidance
         • Some doctrines are discarded
       • Theories (background principles, etc.)
         • Behind separation of powers and federalism
       • Normative claims (“should’s”)
       • Forms of constitutional arguments (historical, policy, etc.)
  3. Example of CL Q: What does it mean in Article II to “vest” the “executive power” in a President?
  4. Example of CL Q: How great is Congress’s power to regulate “interstate commerce?” Should it matter that, unlike at the Founding, virtually all commerce today has some interstate aspects?
  5. Home construction analogy
     • The Constitution provides the basic structure
     • Doctrine, theory, normative claims, and constitutional arguments make the structure “livable”
• What does the Constitution do?
  1. Constitutes a National Government
     • Does so through its words and ratification process
       • But written at a high level of generality with lots of omissions à lots to interpretation
     • Who did it: “We the People….”
       • Only white men with land
         • No women
         • Enslaved and free Black people
       • Nonetheless, the most democratic thing the world had seen at the time
     • Constitutional Convention
       • Joined to revise the Articles of Confederation
       • Ended up scrapping the Articles and writing an entirely new document
     • Problems with the Articles: Weak government
       • No central currency; states had different
       • Federal government didn’t have foreign policy powers
       • No executive
       • No judiciary
       • No power to raise money
       • Essentially a contract between states
       • As a result, government couldn’t pay soldier’s debts, foreclosures, no centralized military, sole reliance on the militia à proved totally dysfunctional
       • Shay’s Rebellion
     • Ratification process
       • Some states signed right away
       • Heated debates
         • NY and VA were slow to sign on
       • Arguments over representation
         • Came up with CT Compromise
           • Lower house allotted according to population and an upper house where states were represented equally
       • Arguments over slavery
         • Word doesn’t appear in the Constitution but there in the background
           • 3/5 Compromise, Runaway slave
       • Arguments over enumeration of rights
         • Anti-federalists were pushing for an explicit Bill of Rights
           • Some only ratified because there was a promise to do so
     • Did it say anything about administrative agencies?
       • Language in there about President having a cabinet, but agencies are NOT addressed
     • A lot of constitutional law is addressing omissions
  2. Limited that Government’s Power. But how?
     • Point of the Constitutional was to strengthen the government, but there was tension as many were weary about returning to the times of being English colonies
     • Important shift from Articles to Constitution
       • Federal government didn’t have power to act on individuals: contract on states where individuals resided
       • Constitution created a government that has power over individuals
         • Power to tax
         • Power to pass laws that regulate individuals
     • Way 1: Separation of Powers
       • Divide power within the federal government into 3 branches of government
       • Checking one another: power is made to check power
         • Separate them and give them separate lanes
         • Then it is in each rbanch’s best interest to not let another usurp their powers
       • “Contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” – James Madison, Federalist No. 51
       • Article 1, 2, and 3
       • Article 1
         • Creates the legislature
         • Fear of legislative tyranny
         • Framers made additional structural safeguards for congressional power
         • Bifurcated the power into 2 separate bodies
         • Qualifications to serve in the senate and the house
         • Different terms of office
         • Delineates power to set laws
       • Article 2
         • Creates the President
         • Defines the office and power and qualifications of the President
         • 35 years old, citizenship requirement, defines method of election
           • Scrapped with the amendment for the electoral college later
       • Article 3
         • Creates a Supreme Court
         • Congress can create inferior/lower courts and has some power to say what those court can do in the judiciary
         • Judiciary Act later creates judiciary structure
     • Way 2: Require express delegations of authority to those branches
       • Constitution mostly focused on the structure of the federal government and ratifying the Constitution
       • Individual rights?
         • A few provisions before the Amendments that are targeted at individual rights
           • Article I Sections 9 and 10
             • Federal government cannot create bills of attainder
             • Cannot suspend habeas corpus
           • States are prohibited from impairing the obligation of contracts
         • Overall, not a ton of protection for original rights at founding
       • If a power isn’t expressly provided, it is not a power that the federal government has
         • Powers must be enumerated to be had by the federal government
           • If not, the federal government doesn’t have this power
       • Idea at founding that powers be specifically enumerated was to itself limit the government
     • Way 3: Protect power of state governments
       • 2 levels of government: federal and states
       • “In the compound republic of America, the power surrendered by the people is first divided between the two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security…” – James Madison, Federalist No. 51
       • If power is not granted to the federal government, then the states have it
         • States are default
       • Novel and cherished at the time
       • State rights have been the topic of many disputes
       • Strong cultural identity of each of the states
       • Federal action is invalid unless it is authorized
       • What happens if there is a conflict of powers?
         • Supremacy Clause: Article IV
           • Where there is a conflict between powers, the federal government wins
  3. Entrenches Our Government
     • It is hard to change on purpose
       • Can only be changed through the amendment process
         • Fewer than 3 dozen amendments
         • In order for there to be an amendment, need 2/3 of Congress or a national convention and ¾ of the states
         • Effectively unamendable
         • Easier than under the Articles (required unanimity), but still very difficult
       • Unlike state constitution
         • TX constitution has been amended 530 times
         • Much easier process
     • Creates the dead hand problem
       • We have a government that is entrenched that was written by dead people
         • Living people did not write it nor agree to it
     • Pros
       • Binding ourselves frees us to focus more on present issues
       • Offers stability
     • Cons
       • Hard to account for societal changes in the structure of the document
     • We have accounted for some changes in society
       • Through interpretation by the court based on these changes
     • Words that the Constitution uses are often at a high level of generality
  4. Is Constitutional Law “law” or “politics”?
     • Under the Constitution, Supreme Court Justices are not elected
       • Supreme Court Justices come to power through Presidential nomination and Congressional confirmation
         • Senators are elected
     • Justices are not elected but they are put forth and confirmed by people who are elected
       • Political process
       • Political actors in ways judges aren’t expected to be political actors
     • People are not only evaluated and put forth based on their experience and knowledge; also because of their ideological opinions and the way these impact their interpretation of the Constitution
       • Selected for the way they interpret
     • A bit of both
     • Our goal: legalize Constitutional law
       • But we are going to see a lot of dissents

Day 2 Outline

1. Recap
2. Interpretation Outside the Courts
3. Interpretation Inside the Courts and the Power of Judicial Review

Recap

1. What makes Constitutional Law distinct?
   • This body of law has a different origin story than other bodies of law we study
   • Foundation in torts/criminal law is the English law we inherited when we became a sovereign nation
   • Constitutional law’s foundation is the constitution
     • Provided a novel set of ideas at a high level of generality
     • Uncertainty about how to make this all work
     • From the very beginning, the Constitution needed to be interpreted
       • Need to study the gloss put on the Constitution by other people
       • Most of our focus is on judicial interpretation
       • Focus on dissents
   • How can we legalize this body of law? Focus on:
     • Constitution has evolved and changed based on interpretations over time
   • Example: Equal Protection Amendment
   • Constitution is entrenched
     • Very difficult to amend
2. What does our Constitution do?
   • Constitutes the government—a limited government
   • Articles of Confederation were too weak
     • Ineffective government
   • Powers reserved to the states unless enumerated as given to the federal government
     • Ex criminal law is largely state
   • Supremacy Clause
     • If there is a delegation fo federa; gpverm,emt power to an issue, the state can still make law, but the federal law supercedes
3. Is constitutional law “law” or “politics”?

Interpretation Outside the Courts

An Early Constitutional Crisis: The Alien and Sedition Acts

1. One of the first constitutional disputes in this country
   • Made it a federal crime to criticize the government
   • To suppress political dissent by the opposing party: the democratic republicans
   • Criminal law that barred certain criticism of the government
     • People were sentenced
2. Federal judges did nothing
   • Some even refused to allow litigants before them to make arguments about this law
   • USSC never ruled on this law
3. Made a focal point of the election
   • Beat John Adams
   • Pardoned everyone who had been convicted under this
4. House impeached Samuel Chase
5. Passed a law that cancelled USSC 1802 term
6. Marbury v. Madison decided in 1803

Basis for the Authority of the Other Branches to Interpret the Constitution

1. Thomas Jefferson
   • Constitution “has…wisely made all the departments co-equal and co-sovereign within themselves.”
   • “Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…Their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.”
     • Saying we need to check the judges
     • Normative argument
       • The shoulds: we should watch out for them
     • Prudential argument
2. Andrew Jackson
   • “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.
   • “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.”
     • Pure textual argument
       • US Constitution, Article VI: “The
3. Abraham Lincoln
   • Court dcisions
   • Article III, Section 2
   • Judicial power limited to cases and controversies
     • There is a lot of room for interpretations outside of this
4. Departmentalism
   • Each branch has the right and duty to interpret the constitution to the best of its abilities
   • Stronger forms of departmentalism allow explicit disagreement among the branches on constitutional questions to persist
   • In short: departmentalism claims judges don’t get the last word on the Constitution
   • Strong views of departmentalism are seen as extreme
   • A lot of people see decisions of the USSC as influential on other matters
5. Judicial Review
   • The power of the courts to declare a law or executive action unconstitutional and therefore void
   • “it is emphatically the province and duty of the judicial department to say what the law is

Interpretation Inside the Courts and the Power of Judicial Review

Marbury v. Madison (1803)

1. Historical Backgroun
   • 2 parties
     • Federalists: Pro-Britain, pro strong, centralized government
       • At the time of the case, they had total power of the presidency and legislature
       • John Adams president
     • Anti-Federalists: Pro-France
       • Hated the Alien and Sedition Acts
         • Passed to suppress their views
     • 1800: Republicans trounce Federalists
       • Revolution without war
       • Government changed hands from the federalists to the anti-federalists
       • Jefferson beats Adams 61%-38%
       • Republican landslide in Congress
       • Republicans sweep state governments
       • Focus on the judiciary
         • Pass the Judiciary Act in 1801
     • Feb-March 1801: Adams and lame-duck Federalist Congress pack judiciary with Federalist judges (Judiciary Act of 1801)
     • March 1801
2. A Who’s Who
   • Outside Government
     • Marbury is some guy
       • Has not received his commission
   • Executive Branch
     • John Adams is President
     • John Marshall is Secretary of State
     • Then Madison becomes Secretary of State
       • Unsent JOP commissions: John Marshall’s job to deliver the commissions
   • Judicial Branch
     • John Marshall is Chief Justice
       • Same time he is Secretary of State
3. Marshall: “My Bad, Bro”
   • Failed to deliver the commissions
4. Marbury had been appointed, was supposed to have a commission
   • Litigating to get delivery of a piece of paper
5. Today, our judicial ethics would not allow this conflict of interest
6. JUDICIAL REVIEW
   • Most important part of this opinion
   • Marshall is empowering the judiciary at the same time he is declaring that the USSC doesn’t have power in this case
   • Along the way, he is setting the groundwork for a lot of things we will look at all semester
7. The Layers of Marbury
   • Does Marbury have a right to the delivery of his JOP Commission?
     • Bottom of page 2: Right originates from an Act of Congress passed February of 1801
     • Page 3: decide whether a right provided by this act has vested
       • Last act analysis: analysis to decide whether a law has granted a right you have to decide whether all the required acts have happened
     • Required Acts
       1. Nomination
       2. Confirmation
       3. Commission
          • Page 4: Justice Marshall says the commission is granted
   • If so, is there a remedy at law for Madison’s violation of Marbury’s right?
     • Possible Answers
       1. You can NEVER sue a Department Head:
          • Page 6: 2nd Paragraph
          • Saying no: if there is a vested right; the operative law is not that you can never sue to
          • Not ture: 2.
       2. You can ALWAYS sue a department head
     • The answer is somewhere in the middle: you can SOMETIMES sue a department head
       • Page 6
     • SCOTUS needs to create DOCTRINE
       • Page 7
         • Discretionary à origin of “political question doctrine”
           • Lots of questions that fall under this category
         • Non-Discretionary à more ministerial
       • This falls into the non-discretionary category
   • If so, is that remedy available in the Supreme Court?
     • Court concluded there is a right and a remedy at law, but is the Supreme Court the right place for this?

Day 3 Outline

1. Recap
2. Marbury’s

Recap

1. Interpretation Outside the Courts
   • Alien & Sedition Acts
     • Judiciary played no positive role
     • Groundwork for Marbury
   • Because the Constitution doesn’t say who has the final interpret power
2. Interpretation Inside the Courts and the Power of Judicial Review: Marbury v. Madison (Part I)
   • Possible Bases for the authority of other branches to interpret the Constitution
     • Structural parallelism
       1. 3 coequal branches
       2. Structural argument
     • Risks inherent in Judiciary; judges need to be checked
       1. Counter-majoritarian difficulty
       2. Only branch not elected by the people
          • Some say this presents risks; need to be checking these unelected judges with less accountability to the people
       3. pragmatism
     • Officials in all branches of government swear an oath
       1. Not just judges
       2. Textual argument
     • Judicial power limited to cases and controversies
       1. Textual/structural Departmentalism
          • Each branch has the right and duty to interpret the Constitution to the best of its abilities
          • Stronger forms of departmentalism allow explicit disagreement among the branches on constitutional questions to persist
          • In short: departmentalism claims judges don’t get the last word on the Constitution
          • Structural argument is one basis to defend departmentalism

Marbury v. Madison (1803)

• First time power shifted between parties was in 1800
  • Democratic-Republicans beat the Federalists
  • Peaceful transfer of power, but not without some moves by the Federalists to try to entrench their power
    • One way: through the judiciary
• Madison ignored the case
  • Didn’t appear; didn’t file briefs
  • One-sided case

1. Layers of Marbury

   • Does Marbury have a right to the delivery of the JoP Commission?
     • Yes
   • If so, is there a remedy at law for Madison’s violation of Marbury’s right?
     • Yes
     • “If some acts be examinable…”
     • 2 categories of doctrine
       1. Discretionary à origin of “political question doctrine”
       2. Non-Discretionary à more ministerial
          • Says that administratively, Marshall had to deliver the commission
          • This was something for which Marbury could sue
   • If so, is that remedy available in the Supreme Court?

2. Marbury’s Judicial Review Holding

• “Jurisdiction”: A court’s power to decide a case or issue a decree (Black’s Law Dictionary)
• Jurisdiction: Constitutional
  • Article III, Clause 2
  • Constitutional provision setting the outer limits of jurisdiction and giving power to Congress to regulate jurisdiction
• Jurisdiction: Statutory
  • Judiciary Act of 1789: “The Supreme Court…shall have power to issue…writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States”
  • One way of having checks and balances in the system
  • In this case, Marbury is asking for a writ of mandamus
    • Common law vehicle: mechanism for suing a government actor to require them to do something that they are required by law to do
    • In this case, they wanted the court to issue a writ of mandamus ordering Madison to deliver the piece of paper
    • It would have been the proper mechanism in this case
  • Problem with this statute: doesn’t square with the Constitution
    • Constitution Question #2 (limits on government’s power): Marbury is asking whether there is an express delegation of authority
      • If not, it would be without authority
      • If the judges are without authority, Congress is also without authority
  • Is there a way to read the Act to avoid the conflict?
    • Plausible interpretation could be that it is not trying to create mandamus jurisdiction but rather authorizing writs of mandamus in cases where other US law has already granted that power
    • Not creating mandamus jurisdiction but just authorizing it where it is otherwise permitted
    • Marshall’s interpretation
  • We have to examine whether this is contradictory to Constitutional authority

1. Case was filed under original jurisdiction

• Original vs appellate
• Case originated in the Supreme Court
• Marbury had to file this in the Supreme Court because there were no other federal courts
• Look back to the Constitution
  • None of those categories apply
  • Therefore, Marshall says Marbury cannot bring this case in the Supreme Court

1. Statute vs Constitution

• Why can’t Congress create the jurisdiction?
• 3 interpretations of jurisdiction
  • Constitution creates jurisdiction
  • Constitution is silent about jurisdiction
  • Constitution prohibits jurisdiction

1. Floor vs Ceiling Arguments

• Floor: Congress can’t go below what the Constitution provides
  • Ex: Congress cannot take away the USSC’s jurisdiction over disputes between states/involving ambassadors
  • If it is a floor argument, doesn’t mean Congress can’t be more expansive (i.e. go above it), they just can’t go below it
• Ceiling:
• Marshall chooses to read Article III language as setting both a floor and a ceiling: Congress can’t go below nor above it

1. Marshall methodically says there is a vested right: it is one for which there is a remedy, but the Supreme Court can’t have that because of Marshall’s reading of Article III
2. Judiciary Act of 1789 is struck down
3. Judicial Review
   • Marshall made choices to construct this conflict
   • Says USSC don’t have the power to decide this case at all à USSC is without jurisdiction
     • Start with jurisdiction: if there is no jurisdiction, the case is over
   • Various understandings of why Marshall did this
     • Maybe wasn’t obvious there was a Constitutional problem to begin with
   • “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If 2 laws conflict with each other, the courts must decide on the operation of each.”
4. 2 components of Marbury’s “judicial review” holding
   • 2 different types of arguments Marshall is making in this opinion
     • The Constitution is supreme, and Congress and the courts are restrained by it
       • “The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”
       • “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.”
     • Judicial review of the Constitution trumps the review of other actors
       • “It is emphatically the province and duty of the judicial department to say what the law is.”
5. Counter-Majoritarian Difficulty
   • The tension between judicial review and the democratic process: how can we let unelected judges stop elected branches of government?
   • Unelected judges imposing will in terms of constitutional interpretation on other branches that are elected
   • Argument that this is not democratic
   • Judges also tend to be super elites
     • Not representative of the people in the same way that Congress or the President is
   • Want people who are accountable to the people making the big decisions
   • Goes to legitimacy concerns
     • We think that acts passed by Congress and signed by the President are legitimate because they were put in power by people (us) who were living
6. Answers to the Counter-Majoritarian Difficulty
   • Potential responses
     • Mechanistic Solution (mechanistic view of judging)
       • Implies almost a mechanical exercise (like doing a proof)
       • Put the Act side by side with the Constitution and make the decision in a mechanical way
       • Counterpoint: even in Marbury, there were judgment calls/acts of interpretation
     • Representation Reinforcement
       • Idea here is that judicial review props up the democracy to the extent that judicial decisions deal with questions like voting rights, free speech, etc.
       • There are some things we value sometimes more than true democracy
         • Minority rights: minorities are at risk of majoritarian overrides
       • Argument that judges are better placed to do this
     • Protect political process
     • Other commitments matter too (like protecting minorities)
     • Let sleeping dogs lie
7. The Dead-Hand Problem
   • The people who wrote the Constitution are dead
   • Seen in Heller
   • Why should these people in an entirely different era be applying today
   • Potential responses
     • Amendment
       • However, very difficult to amend the Constitution
         • Could amend the amendment process
     • The “true people”
     • Bind ourselves to the mast
       • Frees ourselves up to focus on other things
     • Let sleeping dogs lie

• What does the Constitution Do?
  1. Constitutes a National Government
  2. Limited that Government’s Power
  3. Entrenches Our Government

Day 4 Outline

1. Recap
2. Interpreting the Constitution: Why?
3. Interpreting the Constitution: How (Heller)

Recap

1. Marbury’s Judicial Review Holding
   • USSC has the power to strike down unconstitutional acts of a coequal branch of government; i.e. USSC has judicial review
   • Marshall exercised significant discretion
   • Jurisdiction: Statutory
     • Judiciary Act of 1789 could have been interpreted in different ways
   • Jurisdiction: Constitutional
     • Article III: Marshall did not recognize or address that Congress had some power(?)
     • Can be read as a floor and/or a ceiling
   • 2 components of Marbury’s “Judicial Review” holding
     • Is Congress restrained by the Constitution?
     • Can the Supreme Court strike down a federal statute that it believes to be unconstitutional?
2. The Counter-Majoritarian Difficulty
   • Potential responses to the coutner majoritarian Difficulty
     • Mechanistic view of judging
     • Protect political process
     • Other commitments matter, too (like protecting minorities)
     • Let sleeping dogs lie
3. The Dead-Hand Problem
   • Potential responses to the dead-hand problem
     • Amendment
     • The “True People”
     • Bind ourselves to the mast
     • Let sleeping dogs lie

Interpreting the Constitution: Why?:

Because we have to; the document itself requires it

• The constitution provides the basic structure
  • Analogy: home building
• Doctrine, theory, normative claims, and constitutional arguments make the structure “livable”
  • Analogy: makes the home “livable”
• Constitutional construction
  • The term given to the rules, tests, and standards used to construct constitutional law

Interpreting the Constitution: How?

Possible Modalities/Methods/Etc.

Most of the modalities after text are trying to put a gloss on the text; some overlap/similarities; none siloed into themselves

1. Text
   • Important for any analysis
   • What is the semantic meaning? (meaning of language)
   • Has to be a line you can draw between any government action and the constitution in order for it to be valid
   • Can use dictionaries, other places in the Constitution (intratextual interpretation)
2. History and Tradition
   • Everyone across parties think that history matters
   • Debate over originalism
     • How much does it matter? Should it be primary/principle?
   • Different ways to understand history and tradition
     • Original meaning
       • When it was written, what did they understand the words to mean?
     • Intentions
       • Original intentions of the drafters
     • Expectations
     • Tradition and longstanding practices
3. Purpose
   • Why was a given provision included in the Constitution?
4. Structure
   • How does a given interpretation comport with the structure of the Constitution
   • 2 key structural components put in to limit federal power
     • Separation of powers
       • Dividing power between branches
     • Federalism
       • Dividing power between state and federal
5. Pragmatism
   • Thinking about the probable consequences of a given interpretation
   • Tiers of scrutiny
     • How important is the government interest?
6. Administrability
   • Another important part of constitutional construction is creating tests, or ways to interpret similar cases later
   • How administrable is the USSC’s interpretation
   • Not set up in the constitution; judicially created
7. Moral/Normative
   • What should the document say?
   • What values does the document include?
8. Judicial Precedent/Stare Decisis
   • Are there past decisions that bear on the question before the court?
   • Letting a past decision stand can operate in 2 ways
     • Can be a gloss on the meaning of the Constitution
     • If we don’t let it stand, there are great costs; Constitution would be unlivable
   • Related to pragmatism

District of Columbia v. Heller (USSC 2008)

• Case was wildly significant
  • First time in history that the USSC struck down a law on the basis of the 2nd Amendment
• 5-4 decision
  • Majority interpreted the 2nd Amendment as an individual right
• Opened the floodgates to litigation overnight
• Because the 2nd Amendment had never been interpreted this way in over 200 years, the slate was clean
  • Judges could bring to the table arguments; could argue methods of interpretation from the ground up
  • Not the sort of past precedent we see in other cases
• Facts
  • Plaintiff: Heller, police officer at the Thurgood Marshall Judiciary Center overseen by the Supreme Court in D.C.
    • In charge of protecting people like the justices
    • Carries a gun in his work and is trained to do so
  • Wanted to keep a handgun in his home and render it operable
  • D.C. law: required you to register a firearm in order to have it, and cannot register handguns. The guns you can have and register (long guns), the law required that they be rendered inoperable at all times (as interpreted by the court)
    • Strictest gun law at the time
  • INSERT QUOTE + Footnote
    • This case like all impact litigation was reverse engineered: no coincidence that the plaintiff was a police officer trained to protect the judges, in the D.C., nor that it was limited in the home
  • Going after a