Author: sjhurr

The Supreme Court of the United States has gone through a noticeable transformation and ideological shift during the recent years. The appointments of three conservative judges by the President Donald Trump radically changed the composition of the Court shifting its approach towards more traditional and obsolescent interpretation of the law. On the 24^th of June 2022 the Court overruled two important precedents protecting people’s right to abortion, declaring that the Constitution does not confer the right. The ruling had a major impact on the American society and soon after the decision many states regulated laws that were to restrict or ban abortion. The decision was considered widely controversial and questioned by many legal scholars and professionals. 

In Dobbs v. Jackson Women’s Health Organization, the Court overturned two precedents protecting people’s right to abortion: Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. Both decisions recognized a federal constitutional right to abortion before fetal viability giving the states the power to regulate, but not to ban, abortions (New York Law Journal, Sept 6^th, 2022). Beforementioned case law was the most significant legal instrument protecting the right to abortion on the federal level, as the right as such is not included in the US Constitution or in its Amendments. In addition to the societal significance of overturning the previous case law in question, what made the Dobbs decision also exceptional was its contradiction with one of the important principles of the US legal system, the doctrine of stare decisis. 

According to the stare decisis principle, the Supreme Court should follow “the principles, rules, and standards of its prior decisions when deciding a case with arguably similar facts” (Black’s law dictionary 1626, 10th ed. 2014). The Court had already concluded in both Roe and Casey that the Constitution, and more particularly its 14^th Amendment, conferred the right of an individual to have an abortion. The Roe decision, in which the right to abortion was first established, goes back to 1973. Thus, the right has been recognised in US case law for almost 50 years giving it a seemingly strong foundation. Nevertheless, as the right was never made a part of the written federal law it was vulnerable to occurring changes in the Court’s views. It was often a topic of public discussion how the legal protection around the right was too weak and how it should be made stronger.  This public concern around abortions rights did not make stare decisis seem like a particularly strong principle as the legal protection established in the Court’s previous decisions was obviously not trusted.

In the Dobbs Case the Court’s reasoning to go round stare decisis and overturn its previous precedents relied mostly on the constitutional nature of abortion rights. The Court noted that stare decisis “is not an inexorable command” and “is at its weakest when we interpret the Constitution” referring to the previous case law concerning stare decisis (Dobbs p.4). In addition, the Court emphasised how “some of the Court’s most important decision have overruled prior decisions” (Dobbs, p. 4). Furthermore, the Court noted how in certain circumstances the constitutional decisions must be reconsidered. All in all, when taking on the account the significance of this decision, the reasoning of the Court was left quite vague and lacking. To overturn such important precedents and circumvent stare decisis it would be reasonable to expect the Court to deliver more specific and convincing set of facts and justifications for its ruling.   

The Court’s actions can be considered problematic not only from the point of view of women’s rights but civil rights in general. One of the main purposes of stare decisis principle is to make law and legislation coherent and consistent, to establish a pattern of case law that follows and reflects the society and its development. Even though it must be made possible for the Court to overrule its previous precedents to stay up to date, when talking about the deprivation of abortion rights, the decision to overlook stare decisis should not be made without proper consideration. Overturning previous case law regarding people’s fundamental rights has obviously other consequences. It is now made possible for the Court to also challenge other unwritten rights derived from the 14^th Amendment and granted by the previous case law, such as the right to contraception or the right to gay marriage (Ronli Sifris, Monash University website). This jeopardizes the entire fundamental and civil rights progress achieved in the United States in recent decades.

As stated above, the Court’s decision marked a new era in the US judicial system. In terms of the rule of law, the Dobbs case also raises several questions. In a democracy, the purpose of the legal department should be to interpret the laws regulated by the parliament with as much legal accuracy and neutrality as possible. According to many collected surveys, most of the Americans opposed the ruling in the Dobbs case and wanted to retain people’s right to abortion on the federal level. It can be considered strange and very alarming that the Court, which is not elected through parliamentary vote, is able to circumvent stare decisis and make such major controversial decisions concerning the rights of the half of the US population without majority support. 

Mississippi Too

Stare decisis means that the lower courts in the U.S. are bound by the precedents but the U.S Supreme Court should also follow its precedents. This means that when they handle a case that contains a similar question about the interpretation of the constitution or other statutory law, they must decide whether to strengthen the precedence and decide the case according to it or to overrule. The possibility of overruling must be examined trough the stare decisis criteria. 

There are four established criteria. Firstly, they must evaluate whether the standard of scrutiny used in the previous case was the right one. The antiquity of the precedent is a factor as well. The cornerstone of a working legal system and society is that all individuals and legal entities can rely on the legal certainty. For that reason, the reliance interest at stake must be evaluated when considering overturning a case. Lastly the reasoning of the precedence is evaluated. If the U.S Court takes the view that the reasoning of the judges is not sufficient or the law has been interpreted and/or applied incorrectly in their legal evaluation, the precedence holds less meaning and can be overruled more easily. 

In Dobbs v. Jackson Women’s Health Organization (later Dobbs) the stare decisis doctrine has been discussed vastly as the case overturned Roe v Wade (later Roe) and Planned parenthood of Southeastern Pa. v Casey (later Casey). With firstly in the decision the U.S Court established that in Roe the standard of scrutiny was wrong. The U.S Court stated in the Opinion of the Court that there was no need to use strict scrutiny because a State’s regulation of abortion is not a sex-based classification and thus is not subject to the heightened scrutiny that applies to such classifications. Secondly, the antiquity of the precedent was discussed in an originalist viewpoint. The constitution should be interpreted in a way they think that the constitution was meant to be interpreted at the time. There was no reliance interest at stake and the reasoning was not a factor because the Court considered that the Court made an error when deciding Roe. As is seen here, the criteria are used but it can be said that the doctrine allows the judges to amend the criteria to fit their own justifications even if many of the legal scholars disagree with their decision.

One of the main differences between these two Courts is that cases regarding the interpretation of the Constitution is in the U.S. Courts jurisdiction. In Finland, we have preliminary control in the form of the Constitutional law Committee (perustuslakivaliokunta) which evaluates the relation to the Finnish constitution of the statute the legislators have prepared. Therefore, issues regarding Constitutional interpretation seldom rises in the Finnish Court. 

In Finland, the legal ground for the precedents to be binding towards the Finnish Court itself is found in the Working Order of the Supreme Court and in the Supreme Court Act. In chapter 2 article 7 of the Supreme Court Act it is stated that the president of the Republic can refer the case to be handled in a plenary session if when deciding the case, it comes to light that the Court is deviating from its previously adopted standpoint in a certain matter. In chapter 2 article 24 of the Working order of the Supreme Court it is stated that the Court must inform the President of the Republic if the decision departs from a legal principle or interpretation of the law previously adopted by the Supreme Court. This means that formally the Finnish Court is bound by its former decisions and that there are certain aspects need to be evaluated when they “overrule” a precedent. 

In the Finnish Court system, the stare decisis doctrine exist in a rather different form. There are no established criteria that the previous case must pass so that overruling could be possible. It evaluates case by case whether there is a reason to deviate from the established decision-line. The Finnish Court does this firstly by selection of the leaves of appeal and does not grant the leave if they see no reason to evaluate the legal question and amend its previous decision. 

Most of the “overruling’s” stem from simply statutory changes which automatically annul the previous decisions regarding the subject. The Finnish Court evaluates is the precedent sufficiently formulated and justified and if the reasoning is no longer acceptable in the light of statutory and societal changes, the decision is easily overturned. This means that in Finnish court system the precedents cannot withstand ageing well due to everchanging societal needs and statutes and the resulting changes in the interpretation and evaluation of the statute and case at hand. There are a few viewpoints the Finnish Court considers when they decide how much weight they put on the precedent. A recent, unanimously decided case with justified and well written reasoning holds more meaning as a precedent. 

So overall we can state the obvious, the main differences between the two systems stems from the simple fact that in the U.S. the legal system relies heavily on case law whereas in Finland the law is codified. The stare decisis doctrine has been established by the U.S. Court itself and is not codified, when in Finland we can find the doctrine of horizontal bindingess in the above-mentioned statutes. In Finland there is real difficulty in finding a judgement where it is mentioned that the decision overrules a previous one. The Finnish Court very rarely cites a precedent, even if they are overruling it. Most likely they will refer to the former judicial practice vaguely, but the reason for the overruling can be found elsewhere in the judgement. In the case KKO:1995:215 it is stated that as a general guideline; “Established precedence should not be changed without a weighty reason. On the other hand, even well-established precedence cannot prevent the Court from reassessing the basis of previous decisions”. In the U.S., the cases can be established for the sole reason to overrule a precedent. This is the case with Dobbs, in the Brief for Respondents it is stated that they know that the whole case is designed to overrule Roe and Casey, and this would lead to banning abortions.

Mississippi Too

On June 2022, the U.S. Supreme Court decided the case of New York State Rifle & Pistol Association v. Bruen. The case concerns the Second Amendment of the U.S. Constitution and the constitutionality of New York’s concealed carry licensing regime. This brief analysis is based on the majority Opinion of Bruen, and consists of the facts, decisive legal problems and arguments of the case. The text concludes with some observations of the Second and Fourteenth Amendment and the post-Bruen regulation of the State of New York.

In the State of New York it is a crime to possess any firearm without a license and open carry of handguns is completely banned. With a license, possessing a concealed handgun in public is permitted. In the context of the U.S., 43 States have ”shall issue” licensing laws for permitting a license to carry a handgun, while 6 States, including New York, are “may issue” jurisdictions. The former contains that authorities issue licenses whenever an applicant satisfies the statutory criteria. Contrary to this, the latter allows authorities to deny licenses even if an applicant satisfies the criteria. For instance, before Bruen, New York applied a “proper cause” standard, which was not defined in any statute.

The courts of New York have held that to fulfill the “proper cause”, an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community.” If an applicant could not prove this, the license for public carry could be issued only restricted, not unrestricted. This restricted license encompasses to carry a firearm only for a limited purpose, such as hunting or target shooting.

The petitioners of the case are New York State Rifle & Pistol Association and its two members. NYSRPA is a firearms advocacy organization which aims to secure the Second Amendment rights of New Yorkers. The members, Koch and Nash, are law-abiding, adult New York residents. The case originated from their applications for unrestricted licenses to carry a handgun publicly for self-defense which were denied by the State officials of New York. These officials, the respondents of the case, denied the unrestricted-license applications for reason Koch and Nash failed to fulfill the “proper cause” requirement.

According to the Second Amendment “– the right of the people to keep and bear Arms, shall not be infringed”. The parties dispute whether New York’s law infringes the constitutional right of individuals to carry handguns outside the home for self-defense. In other words, the denials of petitioners’ license applications were alleged to violate the rights conferred in the Second and Fourteenth Amendment. The Supreme Court granted certiorari to decide the case and limited the trial to the question: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment”.

The petitioners of the case utilize a “text, history, and tradition” approach to argue that New York’s law, specifically its proper cause requirement, violates the Second Amendment. The respondents focused on demonstrating the consistency of New York’s proper cause requirement and Nation’s historical tradition of firearm regulation.

Despite the vast historical record of the American tradition provided by the respondents, the Court concluded that respondents failed to meet the burden to justify New York’s proper cause requirement. In principle, the Second Amendment grants a right to “all Americans” to bear arms in public. The requirement of law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” thus violates the constitutional right. The Court noted that the right to bear arms publicly for self- defense is not a second-class right when compared with the other rights enumerated in the Bill of Rights. There are no grounds for demonstrating any special need for self-defense to obtain the license.

After the Court declined to adopt previously applied “two-step” approach in Bruen, it emphasized the standard of applying the Second Amendment. This standard directs that when the plain text of the Second Amendment covers an individual’s conduct, the Constitution shall protect that conduct. In Bruen, the Second Amendment’s plain text guarantees Koch and Nash a right to bear arms publicly for self-defense. It follows that New York’s regulation must be consistent with the Nation’s historical tradition of firearm regulation.

Studying Bruen in more detail, one can notice that the Court applies the doctrine of “incorporation”. The Second Amendment, as a part of the Bill of Rights, was originally directed to Federal Government, not against the States. The historical method the Court applies in Bruen, leads to the observation that New York is actually bound to respect the right to keep and bear arms, not because of the Second Amendment, but the Fourteenth Amendment instead. The Court stated that through the Fourteenth Amendment, the Second Amendment right made applicable against the States. The Court ruled that New York’s proper cause requirement violated the Fourteenth Amendment by preventing law-abiding citizens exercising their Second Amendment right to keep and bear arms in public for self-defense.

The 6-3 decision was in favor of the petitioners and struck down the New York law. After the law was invalidated in Bruen, New York has enacted legislation as a counterbalance to the altered circumstances. However, the new statute of New York has been claimed to attempt to circumvent the decision, for instance, by expanding the scope of “sensitive places”. In sensitive places carrying a firearm is prohibited, regardless of a person possesses a valid license or not. The reform will probably raise questions whether Bruen has already been overruled by the new statute of New York and lead to further discussions.

T. A. M. V.

In New York State Rifle & Pistol Association, Inc. v. Bruen (2022) the U.S. Supreme Court held with a 6-3 conservative majority that the Second Amendment encompasses the right to bear arms in public for self-defense. Moreover, for a modern firearm regulation to be constitutional, it must be “consistent with the Second Amendment’s text and historical understanding”. To prove this consistency, the government must demonstrate that its law conforms to the Nation’s historical tradition of firearm regulation by providing evidence of analogous historical legislation. Applying this history-tradition methodology, the Court struck down New York’s proper-cause firearm licensing law which demanded a firearm license applicant prove a “special need for self-protection distinguishable from that of the general community”. The Court found this requirement to be unconstitutional because it contradicted the historical tradition of the Second Amendment by effectively preventing ordinary people from carrying a gun in public for self-defense. The following blog text delves more deeply into the dissenting opinion written by Justice Breyer, with whom Justices Sotomayor and Kagan joined, in which this liberal minority argues that the Court’s decision is based on multiple major mistakes.

Breyer begins the dissent by arguing that the Court shouldn’t take away the ability to tackle the dangers of gun violence from democratically elected bodies. He explains that problems caused by firearms vary geographically and demographically and it takes local knowledge to find the best regulatory measures to combat these issues. To highlight the issues of unregulated guns, Breyer points out the disproportionately high gun ownership and gun violence rates in the US compared with the rest of the world.

Breyer then moves on to criticize Court for deciding the case based on pleadings without allowing for discovery or the development of an evidentiary record on the relevant facts of the case. Pleadings, such as briefs of the parties, tell nothing about how the New York’s law is applied on the grass-roots level. Therefore, the Court’s characterization of New York’s law as one that effectively prevents people from carrying guns in public for self-defense is based on insufficient evidence, claims Breyer. Moreover, Breyer chastises the Court for depriving New York of the chance to prove that its licensing scheme is consistent with the historical tradition of the Second Amendment. However, clearly in order not to undermine his own arguments, Breyer speaks nothing of an oral argument that the Court organized to form its view on the New York law.

In his next point of contention Breyer proceeds to harshly criticize the Court for not employing a so-called two-step test to determine the constitutionality of New York’s law. In this test a court will first find whether the regulated activity falls within the scope of the Second Amendment as informed by its text in the historical context. If yes, the court would then apply means-end scrutiny to weight between the governmental interests of the regulation and the individual rights at stake, and in this way decide if the regulation is justified. In Bruen, however, the Court rejects the means-end scrutiny part of this two-step test and instead requires the government to prove that its law is consistent with the Nation’s historical tradition of firearm regulation. 

Breyer notes that the two-step test has not only been used by lower courts in Second Amendment cases but also by the Supreme Court in cases regarding other constitutional rights and this new history-only approach is therefore incomprehensible. Moreover, rejecting means-end scrutiny in Second Amendment matters is unfaithful to District of Columbia v. Heller, 554 U. S. 570 (2008) continues Breyer. In Heller the Court did reject a freestanding interest-balancing approach but explicitly contemplated traditional forms of means-end scrutiny in the Second Amendment context, such as strict or intermediate scrutiny. Breyer thinks that the New York law would have passed this kind of means-end scrutiny with ease. Lastly, Breyer challenges the practicality of this new history-only test since history may not be able to give answers to modern problems and lower courts don’t even have the resources to conduct such extensive historical analysis.

In the final section of his dissent, Breyer tries to prove that even in the eyes of this history-only test the New York law should be held constitutional. He conducts his own analysis of historical firearm regulations and finds plenty of legislation similar to the New York law. This history was, nonetheless, disregarded by the Court in its deliberations because, as Breyer puts it, the Court always found some arbitrary reason to discount the force of this historical evidence. Breyer seems to be rightfully puzzled as to what evidence is then needed to prove a regulation’s historical tradition if all these historical analogies that he found weren’t enough. Although Breyer’s historical analysis may not have had any effect on the Court’s judgement, if nothing else Breyer manages to highlight how unreliable and indecisive this history-only approach is.

Regardless of the correct methodological approach and true historical meaning of the Second Amendment, this case does well to demonstrate how much the political backgrounds of justices affect their views. The conservative majority and the liberal minority are deeply holed up in their ideological trenches and especially in this case they seem to disagree on pretty much everything. It is thus likely that this pro-gun rights and anti-regulation trend of the Court will continue for as long as the conservative majority prevails.

T. A. M. V.

It is said that the Old Testament has so many commandments you get a new one for each day of the year. The United States is like that, only with mass shootings instead of religious decrees. According to the statistics of the Gun Violence Archive, in 2022 there were 647 reported mass shootings in the U.S. Almost two shootings per day on average. The total number of gun-related deaths last year was 44 290. More than a half of these were suicides, and the rest were homicides, murders, incidents of defensive gun use and unintentional deaths.

Considering the statistics, it is easy to see why Americans are keen on making their communities safer. How could they not, when they live in a country, where people can’t be sure if their children come back home from school alive or dead. Nevertheless, there are deep and divisive differences in thought regarding guns, and consensus is hard to reach. Some proudly proclaim that if you threaten them or trespass on their land, they will not call 911. Come and take it, they reply, when gun control measures are proposed. On the opposite side of the debate, people don’t believe gun ownership to guarantee freedom and personal safety. Rather, they see that it creates an environment of fear and an ample soil for gun violence. They don’t think that the only way to stop a bad guy with a gun is a good guy with a gun – instead, it is preventing the bad guy from legally obtaining the weapon in the first place. In terms of black-and-white thinking, people want to reduce harm by either restricting gun use or enabling people to have more access to them. 

This is the cultural context of New York State Rifle & Pistol Association v. Bruen, a Supreme Court judgment from June 2022. The question of the case was if the State of New York’s denial of petitioners’ concealed carry licence applications violated the Second Amendment by requiring that applicants demonstrate a special need for self-defence. The Amendment states that “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”. The right to keep arms and defend the lives of yourself and others, as well as property, is well-established in the sphere of home. In Bruen, the Second Amendment is examined in the aspect of bearing arms outside of that sphere.

The aim of this blog text is to analyse the argumentation used in the brief for petitioners’ and shine light on the ideology behind them. The main argument of the brief is that the Second Amendment protects the right to carry arms outside a person’s home for the purpose of self-defence, because the text of the Second Amendment guarantees the right to bear arms as well as keep them, and that history and tradition supports the right to carry weapons for self-defence. Because of this, the petitioners conclude that New York’s legislation violates their constitutional rights. 

Historical argumentation starts with English law and argues that the right to carry in public for the sole purpose of self-defence was a historically recognised right and that it has been an accepted practise for over a hundred years. Naturally, notable founding fathers are mentioned, as well as their support for carrying firearms. The right to carry arms for self-defence is argued to have been viewed as an individual right in the early Republic, and the brief notes that men in militia duty were expressly required to carry arms. Indeed, this individual right is said to continue to the reconstruction era and to the present day. The most cited recent precedent is District of Columbia v. Heller, with McDonald v. Chicago being also used to validate that self-defence as a recognised purpose of carrying arms.

When historical gun control measures are brought up, it is with distinction that the bans often targeted the use of weapons in a dangerous manner and as a means to terrify people. Therefore, the laws did not interfere with what was considered as usual carrying. The narrative of the brief is that carrying guns has always been part of the American everyday life, a societal norm. The “few decisions”, which suggested that the right to carry isn’t a constitutional one, are described to be based on erroneous premises. Moreover, gun control legislation is framed in a racist context. Legislation from such times as antebellum South, abolition of slavery and 20^th century immigration are used as examples of gun control laws being used to disenfranchise minorities. The present law is implied to have effects which deprive constitutional rights in a similar way.

A key idea behind the arguments reflects classic liberalism: the government should not involve itself it the life of the nation’s citizens unnecessarily, and it should refrain from restricting their rights as much as possible. From the second page onward, the argumentation describes the discretion of licencing officers as broad, later calling it highly discretionary and “practically unreviewable”. According to the brief, the practise is selective and those who are able to obtain a concealed carry licence are often a “celebrity or well-connected individual”. The requirement of showing a proper cause to the licencing officers and their discretion are viewed as a direct contradiction to the core of the Bill of Rights, which is to protect individuals from government officials’ arbitrariness. The Bill of Rights is an assurance that the government won’t extend its reach to areas in which the decision-making power relies on the individual. The brief paints the picture of individuals as underdogs.  Indeed, allowing citizens to carry for self-defence is viewed as protecting the little man, without the big, bad government infringing on the people’s inherent right.

How accurate is the notion that gun control laws are merely deviations from the norm? Have citizens truly been allowed to carry arms with little to no government involvement? The interpretations put forward in the brief are very debated in the academia. Ultimately, they were convincing enough for the petitioners to win their case. With 6-3 votes, the Supreme Court ruled New York’s requirement of showing a proper need for self-defence to be unconstitutional. In the future, Bruen will affect the constitutionality of gun control laws and thereby affect how easy it will be to carry guns in public. I anticipate that the arguments of the brief may be used again, for example if the Supreme Court were to rule on the prohibitions of open carry.

T. A. M. V.

The New York State Rifle & Pistol Association, Inc. v. Bruen (2022) is an interesting case in the United States of America, due to it being a historical change in the U.S. Supreme Court’s stance on gun regulation. In the U.S. Supreme Court, it is evident that the composition of the Court and the political standing of the justices have a major influence on the judgements. However, now that the composition of the Court is balanced in favour of the conservative justices, perhaps it could be said that the rules of the game have also changed.  This has led the liberal side, in this case the Respondents’, to choose a way of argumentation, which has been mostly used by the conservative side: the originalism or the historical interpretation of the law. This blog text focuses on the brief for Respondents in the Bruen case.

The Respondents state already in the first paragraph of the introduction that the claim of Petitioners “defies both the historical record and this Court’s precedents.” This seems to set the tone of arguments for them. In their opinion, the Petitioners have spent most of their brief addressing a question which was not disputed: is the right to carry arms outside the home for self-defence embodied by the Second Amendment. The Respondents argue that, in the U.S., there has always been some form of restrictions which were used in public places. Thus, the carrying of a firearm has also historically been conditional. According to the Respondents, this settled practice dates “from medieval England through this Nation’s founding and beyond.” 

In the Petitioners’ view the right to carry arms is guaranteed by the Second Amendment. New York’s denial to grant the two individuals the license for self-defence is, thus, a violation of that right. The Respondents state that in Heller it was recognized that individuals have right “to keep and bear arms” but this entails only the “core lawful purpose.” The right does not include the possibility to carry arms only because the self-defence is potentially needed everywhere. Contrary to what the Petitioners claim have local officials long had freedom to decide the circumstances in which it is possible to carry firearms in public. Historically, just the carrying of a firearm in populous areas could constitute circumstances “apt to terrify the People.” The Petitioners leave out vital information which could be important when considering the historical interpretation of the law. This then leads the Respondents to fill in these blank spaces and to correct the historical inaccuracies. It is certainly in the Petitioners interest to convince the Court of their arguments, but it still seems quite peculiar.

The Petitioners also raise the question whether the discretion given by the New York law to local licensing officers was against the Second Amendment. The Respondents state that the discretion that is given to local officers is neither “boundless” nor “unreviewable.” The licensing decisions can be challenged in New York courts and will be set aside if a decision is “arbitrary or capricious” or contrary to law. The Respondents note about the long historical tradition that New York has followed, and that New York’s law is less restrictive than its historical antecedents. Therefore, it is not possible that the law could violate “historically rooted constitutional norms.” 

The Petitioners suggest that the discretion in “proper cause” was historically intended to disarm “disfavored groups” such as Black Americans and immigrants. On the contrary, according to the Respondents, such laws were crucial for the protection of “freedmen from the violence and intimidation perpetrated by whites” in the postbellum South. Also, there is nothing in the historical records that could uphold the claim of the Petitioners that such laws were of anti-immigrant intent. It is evident that the Petitioners attempt to distort history for their own benefit.

The most interesting detail in the Bruen case is the quantity of historical arguments on the side of the Respondents. As previously said, this is a quite unusual approach for a liberal side to choose. The originalism is mostly used by conservatives to advance their arguments in courts by using history inaccurately. Could this be the new approach for the liberals? 

The Bruen case demonstrates the absurdity of the U.S. Supreme Court. The political standing of the justices has a major role in deciding the end result. The Respondents used the rules set by the other side expertly against them. They argued with a historical interpretation of law, only to fail in the end due to the justices’ political standings. The new standard seems to be historical inaccuracies and political agendas. As soon as the balance of the political parties favours the other side, the whole roulette might start anew.

T. A. M. V.

United States v. Cruikshank, 92 U.S. 542 (1875) was a landmark case in the history of the United States, and it has had a lasting impact on the interpretation of the Second Amendment and the protection of civil rights in United States. The case arose out of the Colfax massacre, a violent attack on African American political activists in Louisiana in 1873. William Cruikshank and other white supremacists were charged with violating the civil rights of the victims, who were attempting to defend their right to vote.

The Colfax massacre was rooted in the political and social tensions that existed in the South during the late 19th century, following the end of the Civil War and the abolition of slavery. In the years after the war, many white Southerners were annoyed at the political and economic changes that had occurred as a result of the war and the subsequent passage of the 13th, 14th, and 15th amendments to the U.S. Constitution. These amendments granted citizenship and voting rights to African Americans, which many white Southerners viewed as a threat to their own political and economic power. In Louisiana, these tensions were particularly evident in the years leading up to the Colfax massacre. A disputed election in 1872 had led to a power struggle between the state’s Republican governor and a group of white supremacists, who sought to overthrow the governor and regain control of the state government. On April 13, 1873, a group of white supremacists attacked the courthouse, which was being defended by a group of black men. The attack turned into a brutal slaughter, with the white supremacists killing an estimated 150 black men, while injuring many more.

The defendants in the case, William Cruikshank and other white supremacists, were charged with violating the Enforcement Act of 1870. The defendants were accused of conspiring to deprive African American citizens of their rights to bear arms and to assemble peaceably, in violation of the Second Amendment and the Fourteenth Amendment of the United States Constitution. The question before the Supreme Court was whether the Second Amendment applies to the actions of private individuals and state governments, or whether it only applies to the actions of the federal government. The Court ruled that the Second Amendment only applies to the actions of the federal government, and not to the actions of private individuals or state governments. The decision effectively nullified the Enforcement Act of 1870 and that made it possible to continue violence and discrimination against African Americans in the decades followed.

The debate over gun control in the United States is a contentious and complex issue that has been the subject of political and social discussion for a long time. In recent decades, there has been a renewed debate in the United States over the interpretation of the Second Amendment, with some arguing that the amendment guarantees an individual right to bear arms, while others argue that it is a collective right that applies only to state-organized militias. The Supreme Court has issued a number of important decisions in this area, most notably District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). These recent decisions have overturned the interpretation of the Second Amendment established in Cruikshank, which limited the application of the amendment to the federal government, and not to state governments or private individuals. 

In my opinion, the judgment in Cruikshank is quite questionable if not totally irrational, but we also have to remember the era when the decision was given. Even though it’s been almost 150 years since Cruikshank, we can still see that the gun control and the civil rights are still current topics discussed in the United States. One could guess that there are still plenty of U.S. Supreme Court cases in the future dealing with similar issues.

T. A. M. V.

Introduction

The American legislation regarding individuals’ right to keep and bear firearms is unique in other world’s perspective. One’s right to carry and own guns is based on the bill of rights, and more specific it is based on the second amendment. According to the 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. However, the need for a citizens need for self-defense with firearms is broadly disputed in today’s America, since society has changed since the declaration of the bill of rights. 

For example, in case New York State Rifle & Pistol Association v. Bruen, the New York State’s Police had to apply for a license to carry firearms outside their homes. In other words, citizens needed a proper cause if they wanted to bear guns in public places. The petitioners in New York State Rifle & Pistol Association v. Bruen claimed that this kind of action violates their rights, and the case was taken all the way to the Supreme Court. The court found that New York’s system violated citizens’ right to keep fire arms. 

The case I will scrutinize most in my blog text will be case District of Columbia v. Heller from the year 2008. In this case was a question if policeman Heller (Petitioner) could buy and keep fire arms to self-defense. As we know, the first ten amendments aka the bill of rights are regulated to restrict federal powers from restricting individuals. However, part of the amendments can be contested also on a state level because of due process clause, which is incorporated to apply also states by the fourteenth amendment. In this case court didn’t make a decision whether the second amendment is incorporated or not, since D.C isn’t a state but a federal enclave. The evaluation of the incorporation was given two years later in case McDonald v. Chicago. 

The facts of the case 

As I already briefly mentioned, in case District of Columbia v. Heller Mr. Heller was a police officer who guarded the federal buildings in D.C, and during his office hours, he bore a gun with him. Heller however also wanted to have a gun at his home for self-defense, but Washington D.C had very strict gun regulations, and Heller wasn’t allowed to do so. In the time people in D.C were allowed to have guns at their home disassembled and unloaded or bound by a trigger lock.

Supreme Court’s argumentation & judicial interpretation

Heller case was one of the first times in Supreme Court, where the court evaluated the meaning and scope of the second amendment. Last time the Supreme Court evaluated the scope of the second amendment in 1939 in case United States v. Miller.

The Court had to interpretate what the phrase: ‘’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.’’ meant in 18^th century and today’s language. The question in particular was, if it was allowed to own firearms without being connected to a well regulated militia. The Supreme Court held that the word ‘’people’’ in the second amendment should be seen as all citizens, even though on the 18^th century the people in this context most likely included only males who were eligible to fight and bear those guns. The second ambiguous word on the second amendment was the word ‘’militia’’. Because many historians and laymen would see the word militia mean only regulated and specified group of soldiers, and therefore second amendment shouldn’t apply to normal citizen. However the Supreme Court argued that during the English reign militias were loosely regulated groups created by ‘’the people‘’ and therefore anyone could have a right to keep and bear guns in the United States. The Court also evaluated what the phrase ‘’keep and bear arms’’ meant and the Court concluded that it’s everyone’s right to own and have guns even without a connection to militia. 

The court held a 5-4 decision and found that D.C’s regulation violated citizens’ right to bear and keep fire arms. 

Conclusion

After scrutinizing the Supreme Courts case District of Columbia v. Heller and articles regarding it, I found that the gun laws are getting looser since everyone has a right to carry a gun in today’s America. The second amendment is seen very sensitive right and its’ restrictions are very easily seen as violation. Bear in mind that this case was given in 2008, but the same line of interpretation is also seen in the Bruen case, which I mentioned in the earlier paragraphs, given in 2022. 

T. A. M. V.

McDonald v. Chicago was a United States Supreme Court case decided in 2010. The case dealt with whether the Second Amendment to the U.S. Constitution, which protects the right to keep and bear arms, applies to state and local governments through the incorporation of the Bill of Rights.

The case was brought by Otis McDonald, a resident of Chicago, Illinois who was concerned about crime in his neighborhood. McDonald argued that the city’s strict handgun ban, which prohibited him from owning a handgun for self-defense, violated his Second Amendment rights. The case was eventually appealed to the U.S. Supreme Court.

The defendants (the City of Chicago and Oak Park, Illinois) argued that the Second Amendment did not apply to state and local governments, and that the Supreme Court’s previous ruling in District of Columbia v. Heller (2008) only applied to federal laws and regulations. They also argued that the strict gun control laws were necessary to address the high level of gun violence in Chicago.

In a 5-4 decision, the Supreme Court held that the Second Amendment does apply to state and local governments through the incorporation of the Bill of Rights. This is a highly contentious issue in the United States, as it has the potential to significantly impact the ability of state and local governments to regulate firearms. The court held that the right to keep and bear arms is “fundamental” and “deeply rooted” in the nation’s history and tradition, and that the Chicago handgun ban was therefore unconstitutional.

The McDonald v. Chicago decision was a significant victory for gun rights advocates, as it established that the Second Amendment applies to state and local governments and not just the federal government. The decision has also had a major impact on other cases involving gun control laws, with many laws being struck down or modified as a result.

The majority opinion, written by Justice Alito, argued that the Second Amendment is incorporated against the states under the Fourteenth Amendment’s Due Process Clause, which prohibits state and local governments from denying individuals of “liberty” without “due process of law.” The Court found that the Second Amendment guarantees an individual right to possess and carry firearms for self-defense and that this right is fundamental and applies to the states under the Due Process Clause.

However, the dissenting opinion, written by Justice Stevens, argued that the Second Amendment does not apply to the states, and that the Court’s decision was a departure from long-established precedent. He argued that the incorporation of the Bill of Rights against the states through the Fourteenth Amendment was not intended to include the Second Amendment.

Gun rights advocates generally view the McDonald v. Chicago decision as a victory for the Second Amendment and individual liberty. They argue that the decision affirms the right of individuals to own and carry firearms for self-defense, and that it will help to strike down restrictive gun control laws at the state and local level.

It is good to note that these Supreme court’s rulings set a huge precedent for future Second Amendment related cases, causing a domino-effect. For example, Caetano v. Massachusetts (2016) the Second Amendment was extended to stun guns, and furthermore in NYSRPA v. City of New York (2019) and NYSRPA v. Bruen (2022), the stand on gun-freedom leaned heavily towards a more conservatist point of view which effectively weakened the states’ power to regulate gun-freedom related laws.

Gun control advocates generally view the decision as a setback for public safety. They argue that the decision will make it harder to enact and enforce laws designed to reduce gun violence and make communities safer. They also assert that the decision could lead to more widespread gun ownership and ultimately more gun-related deaths.

Additionally, from a legal standpoint, some have criticized the Court’s decision in McDonald v. Chicago, arguing that the Court misconstrued the original intent of the Second Amendment and the Fourteenth Amendment, and that the decision was not based on sound legal reasoning. 

The dangers shown in these Supreme Court cases are related to the freedom of interpretation of what could be regarded as the most highly valued pieces of legal text. The possibility of impacting the whole nation’s legal system on a basis of an individual’s subjective political view is rather an uncomforting thought. 

T. A. M. V.

In the case Carson v. Makin, 596 U.S (2022), decided June 21, 2022 the Supreme Court of the United States ruled in favor of the petitioners with a conservative 6 to 3 majority that has become very frequent in the recent years. In this text I will focus on the dissenting opinion written by Justice Stephen Breyer, with whom Justice Elena Kagan joined and Justice Sonia Sotomayor joined with the exception of Part 1-B in the dissenting opinion. Briefly put, this case is, on a constitutional level, about the two Religion Clauses in the First Amendment – the Establishment Clause and the Free Exercise Clause. 

The state of Maine has a tuition funding program that provides funding for students to attend a private school if there is no public high school available in their area. These areas, called school administrative units (SAUs), can meet their requirements by contracting with a high school or by paying the tuition for one, where the student has been accepted. In both instances, the high school in question must be either a public school or an approved private school. There are two criteria for a school to meet in order to be considered an approved school. It must meet the state’s obligatory attendance requirements and be “nonsectarian in accordance with the First Amendment”. The petitioners in this case wanted to receive funding for schools that did not meet the nonsectarian requirement, hence raising the question of whether state law that prohibits students from using the aid program for a sectarian school violates the Religion Clauses or the Equal Protection Clause of the Constitution.

I will not go into detail regarding the majority opinion, but its shortcomings will become apparent in explaining the minority opinion. Justice Breyer begins and concludes his opinion with the historically established and accepted understanding of the interplay between the two Religion Clauses of the First Amendment. He emphasizes the importance of allowing states the flexibility “to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion” (slip op., at 1), within the scope of which Maine’s nonsectarian condition falls.

The minority, in the form of Justice Breyer’s opinion, takes a historical perspective as the basis for its arguments, which is a bit of a departure from what we usually see in terms of the conservative-liberal division. More often than not the historical reasoning is the conservative side’s approach to defending their stance. However, Justice Breyer bases his opinion on the long-standing principle of separation of church and state, and the State’s consequent neutrality towards religion.  This objective of constitutional neutrality can, according to Justice Breyer, be derived and accomplished through the ultimately complementary values represented by the two Religion Clauses of the First Amendment. The crucial shift that has taken place as a result of this ruling is one where states are no longer given the right to case-by-case consideration in interpreting and balancing the First Amendment’s Religion Clauses. Before, a state could choose to fund religious schools, whereas now it must do so. Taking away the possibility to evaluate each case on its facts shows how the majority completely disregarded the Establishment Clause and gave weight almost exclusively to the Free Exercise Clause.

Justice Breyer combats the majority’s key case references, Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S (2017) and Espinoza v. Montana Department of Revenue, 591 U.S (2020) by pointing out the fundamental difference between religious status and religious use. There is an underlying distinction between these two cases and what type of role religion plays in them. In Trinity and Espinoza, the relevance of religion was only in the status of the schools, where the funding concerned the building of cushioned playgrounds, which really is more a matter of safety for all kids no matter what type of school they attend. The way in which Carson differs, is that the schools had religion embedded in every aspect of their operations. Breyer argues that because in Carson, the schools would use the funds to promote and teach religious beliefs, it is acceptable to exclude them from funding. 

I found one of the crucial and compelling points in Breyer’s dissenting opinion to be that the concept of religious use, in Carson, goes to the extent that there is no separation between academic and religious instruction. He emphasizes how in its past decisions the court has never claimed that the Free Exercise Clause prohibits States from denying funds that would go towards religious use. States should be allowed to exclude schools that provide a religious education that is in no way a comparable alternative to a neutral civic-minded public education from its funding programs. This nonsectarian requirement, Breyer states, is constitutional because it supports the idea behind the Religion Clauses, which is to avoid religious strife.

S.N.C.S.H.S.