The Lord Is The Maker Of Them All
1. Second 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.
2. “Prefatory Phrase”
A well regulated Militia, being necessary to the security of a free State.
– State has right to ensure a well regulated militia (civilians) to defend against Federal Government.
3. U.S. v Miller (Supreme Court, 1939)
In the absence of any evidence tending to show that possession or use of a [sewed-off shotgun]…has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say the Second Amendment guarantees the right to keep and bear such an instrument.
4. “Operative Phrase”
The right of the people to keep and bear Arms, shall not be infringed.
– The right belongs to the individual for self-defense, not just for the State to have a militia
5. District of Columbia v. Heller (Supreme Court, 2008)
The right to bear arms has always been the distinctive privilege of freemen…The inherent right of self-defense has been central to the Second Amendment right…[and] the home [is] where the need for defense of self, family, and property is most acute.
6. 14th Amendment – ratified in 1868
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 Sate 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.
7. Due Process Clause
– State cannot deprive any person of life, liberty, or property without due process of law
– Due process is “fundamental fairness” in the judicial process
8. Griswold v. Connecticut (Supreme Court, 1965)
The concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty [embraces] the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported by a number of decisions of this Court.
9. Dissent in Griswold
I think this is an uncommonly silly law. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do. I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
10. Justice Scalia on Abortion/Privacy as a 14th Amendment Right
But some of the liberties the Supreme Court has found to be protected by that word – liberty – nobody thought constituted a liberty when the 14th Amendment was adopted. Abortion? It was criminal in all the states.
11. Equal Protection Clause
No State shall deny to any person within its jurisdiction the equal protection of the laws.
12. Classifications for Level of Scrutiny
Rational Basis – lowest level of scrutiny, government only needs to show “rational reason” for denying equal protection to particular group
e.g. Business closures
13. Classifications for Level of Scrutiny (cont’d)
Intermediate Scrutiny – middle level of scrutiny, government needs to show “compelling reason” for denying equal protection to particular group
e.g. Laws based on age classifications
14. Classifications for Level of Scrutiny (cont’d)
Strict Scrutiny – most heightened level of scrutiny, government needs to show denial is “necessary to advance government interest”
e.g. Laws based on race and gender classifications
15. Civil Rights Act of 1964
Prohibits discrimination on the basis of race, color, religion, sex, or national origin.
– 14th Amendment deals with GOVERNMENT denying equal protection to persons based on their classifications
– Act deals with a PERSON or ORGANIZATION denying equal protection to persons based on their classifications (e.g. business owner and customer, or employer and employee)
16. Equal Employment Opportunity Commission (EEOC)
– Reasonable Accommodation Clause: employee must reasonably accommodate employee’s religious practice, unless doing so would cause more than a minimal burden on the operation of employer’s business
17. Public Accommodations
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation…without discrimination…on the ground of race, color, religion, or national origin.
– WA added “sexual orientation” to the list in 1996
18. State of Washington v. Arlene’s Flowers (WA Supreme Court, 2019)
The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding…[therefore], it is unprotected conduct.
19. Justice Antonin Scalia – March 11, 1936 to February 13, 2016
“If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. We are fools for Christ’s sake. We must pray for the courage to endure the scorn of the modern world.”
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