Plain Text Flashcards
Why does your client fall within the Amendment’s plain text?
When dissecting the plain text, should we take account of the preamble, which links the right to a “well-regulated” militia? Wouldn’t disarming criminals be consistent with the need to maintain martial discipline? Can’t the prefatory clause be used to resolve an ambiguity in the operative clause?
No, your honor. Heller holds that prefatory clause announces the right’s purpose, but it does not limit the right announced in the operative clause. Accordingly, Bruen directs courts’ attention to the textual elements of the operative clause.
• There is no textual ambiguity that the prefatory clause would need to clear up. Mr. Yates is unambiguously part of “the people” under Heller’s textual analysis, and he kept arms in his home. The government can still justify 922(g)(9) by pointing to a historical tradition of regulation, but that would be separate and apart from the plain text step.
Isn’t the whole point of the Second Amendment to let us defend ourselves against those deemed dangerous? Wouldn’t the right be self-defeating if we armed the dangerous?
• I see your honor’s logic there. But Bruen tells us that we need to look to text and history to decide where the Second Amendment draws the line between individual liberty and public safety. (McDonald - represents trade-offs between individual liberty and safety)
Should we look to history to inform the “plain text” inquiry, as Range did?
• No, your honor, that would be inconsistent with Bruen. As Justice Barrett explained, there are two schools of thought about how to approach history and tradition: you can use it (1) to inform the scope of the right, or (2) to shed light on the legislature’s power to take it away. Bruen has a clear answer to this: You use plain text to determine whether the Second Amendment “presumptively” protects a person’s conduct, while using history to decide whether it is within the legislature’s power to limit that conduct
Heller says that “the people” refers to the political community. But people can be deprived of the right to vote by virtue of committing crimes. So isn’t your client excluded?
No, your honor, because Heller immediately cites Verdugo-Urquidez to explain what it means by “political community,” and the definition of “the people” in Verdugo-Urquidez clearly extends beyond voting-eligible persons. It sweeps in all persons with First and Fourth Amendment rights, as well as certain noncitizens. Relatedly, while criminal convictions can sometimes suspend collective rights like voting, they don’t suspend individual rights like free speech. And Heller expressly holds that the Second Amendment protects an individual right, not a collective right.
