Chapter 8

Question 1

incorporation doctrine

Answer 1

A legal theory that maintains that the Bill of Rights (or at least portions thereof) should be incorporated through the Fourteenth Amendment’s Due Process Clause and made applicable to the states.

Question 2

Inclusio unius est exclusio alterius

Answer 2

“the inclusion of one item is the exclusion of all others” Under this theory, the Framers maintained that they could limit the scope and power of the government by enumerating or listing the government’s specific powers in the Constitution and that such documentation, by implication, would curtail any subsequent argument that the government had powers beyond those listed in the Constitution.

Question 3

Penumbras

Answer 3

A penumbra is a lunar shadow. Justice Douglas used this term as a metaphor in Griswold v. Connecticut (1965) to describe an individual’s right to privacy under the Constitution.

Question 4

Social compact

Answer 4

A term used to describe the Constitution as a contract between two primary parties—the people and the government—wherein the people have given their consent to political institutions to be their sovereign governing authorities, granting to them certain powers of structure, process, and support, and in exchange, the government has agreed to provide the people with certain levels of protection and sustenance.

Question 4

Total incorporation doctrine

Answer 4

A theory held by some jurists and legal scholars maintaining that the Fourteenth Amendment requires all of the provisions of the Bill of Rights to be incorporated and applied to the states.

Question 5

Natural rights theory

Answer 5

A theory of individual liberties that maintains that liberties are the result of the “laws of nature.” This theory recognizes life itself as the source of certain individual rights that exist independent of any constitution or contract. Natural rights theory insists that the rights enumerated in the Bill of Rights are natural, inherent, and unalienable to individuals.

Question 6

US v Cruikshank

Answer 6

during the Reconstruction Era. Blacks outnumbered whites in Colfax County and in the State of Louisiana; and they elected a Republican Governor. Colfax County also elected a majority of Republicans. In April of 1873, Whites clashed with Blacks and at the Colfax Courthouse the Whites attacked. They took prisoners and executed many. In the fighting, 150 Blacks died and 3 whites.
The state militia then arrested a number of the people who took part in the massacre including Cruikshank. He was indicted under the first Ku Klux Klan statute of 1870, a federal statute.
He and others were indicted for conspiracy to commit among other things “to hinder and prevent the exercise by the same persons of the ‘right to keep and bear arms for a lawful purpose.”

Question 7

Presser V Illinois and results

Answer 7

Illinois had enacted a law that prohibited people from carrying weapons that could be fired, while marching in a parade. Presser participated in a parade in Chicago with a weapon and was issued a summons. He was convicted and appealed to the Supreme Court. The Court ruled the Second Amendment protected state militias attempting to defend against federal encroachment and that the states had the power to regulate this right as they saw fit.

Question 8

National Firearms Act of 1934.

Answer 8

Automatic Firearms Are Regulated
Following an attempt on the life of President-elect Franklin D. Roosevelt with a handgun. Regulated firearms at the federal level. The nation’s first federal gun control law taxes the manufacture, sale, and transfer of fully automatic firearms and “gangster-type weapons,” including machine guns and sawed-off shotguns. It also requires FBI background checks and local law enforcement notification for people who wish to purchase these weapons.

Question 9

1990 The Gun-Free School Zones Act

Answer 9

Congress prohibited any unauthorized individual from knowingly possessing a loaded or unsecured firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone as defined by federal law. The law applied to public, private, and parochial elementary schools and high schools, and to non-private property within 1000 feet of them

Question 9

Printz v. United States

Answer 9

Supreme Court holds that the Brady Law’s waiting-period requirement is constitutional, but finds that the mandatory background checks required of local authorities are unconstitutional.

Question 9

Miller v US

Answer 9

Bank robbers Frank Layton and Jack Miller were arrested for carrying a shotgun across state lines. The gun in question was a “sawed-off double barrel 12-gauge shotgun”, which violated the terms of the Federal Firearms Act.
They appealed on the grounds that they were protected by the Second Amendment. The Supreme Court ruled the NFA was constitutional, and that the right that the Second Amendment said “shall not be infringed” applied to arms conceivably used by a member of a well-regulated militia.

Question 10

Brady Act

Answer 10

The law requires federally licensed firearm dealers to perform background checks with law enforcement officials before selling a firearm

Question 11

United States v. Lopez

Answer 11

the U.S. Supreme Court rules that Congress overstepped its constitutional authority under the commerce clause when it passed the GFSZA The Court found that the punishment of gun possession and gun use near schools is a matter for each state to regulate on its own

Question 12

What is the debate surrounding the second amendment?

Answer 12

Does the language of the Amendment provide:
a) a right for every individual to “keep and bear arms,” or
b) does it provide “collective right for society to keep and bear arms, for the purpose of defense (a militia)

Question 13

Parker v. District of Columbia

Answer 13

the D.C. Circuit became the first federal appeals court to strike down a gun control law on Second Amendment grounds.
Prior to this decision there was a debate about whether or not the Second Amendment included an individual right. They stated that the phrase “the people” in that amendment applies to individuals rather than an organized collective and that the phrase “the people” means the same thing in the 1st, 2nd, 4th, 9th, and 10th Amendments.

Remember this was a District Court decision. It was not a Supreme Court Decision.

Question 14

Heller v District of Columbia

Answer 14

A retired policeman by the name of Dick Heller applied to register a handgun. He indicated that he intended to keep fully loaded inside his house for self-defense. Lawfully owned firearms, such as registered long guns, “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. Heller was denied a permit on the grounds of a local ordinance which required these firearms to be stored unloaded or locked against firing.