A federal judicial district is an area of a state in which a federal district court sits to determine matters involving federal ques-tions orDIVERSITY OF CITIZENSHIPof the parties.. Case
Trang 1To deprive of eligibility or render unfit; to disable
or incapacitate
To be disqualified is to be stripped of legal capacity A wife would be disqualified as a juror
in her husband’s trial for MURDER due to the nature of their relationship A person may be disqualified for employment at a certain job because of a physical disability
DISSENT
An explicit disagreement by one or more judges with the decision of the majority on a case before them
A dissent is often accompanied by a written dissenting opinion, and the terms dissent and dissenting opinion are used interchangeably
Dissents have several functions In some cases, they are a simple declaration of disagree-ment with the majority In others, they instruct, prod, scold, or otherwise urge the majority to consider the dissenter’s point of view
Dissents carry no precedential weight and are not relied on as authority in subsequent cases However, attorneys and judges sometimes
consult them to understand the dissenter’s analysis of the majority opinion Attorneys and judges may also cite a dissent if they agree with its reasoning and conclusion and seek support for a change in the law
Although the majority opinion constitutes the judgment of the court, its legal weight can
be diminished if a sufficient number of judges dissent On issues that divide the courts and the country, there can be sharply divergent opi-nions on what the law is or should be During the 1990s, for example, one divisive question before the U.S Supreme Court was whether
AFFIRMATIVE ACTION programs to redress the effects of past discrimination were
constitution-al In Miller v Johnson, 515 U.S 900, 115 S Ct
2475, 132 L Ed 2d 762 (1995), the U.S Supreme Court held that Georgia’s congressio-nal redistricting plan, implemented to give minorities a strong voting block, constituted racial gerrymandering and violated the EQUAL PROTECTION Clause However, the case was not
an unqualified success for those urging the rejection of affirmative action Five justices joined in the majority block (PLURALITY) in the case, and four justices filed dissents With such a large minority, the dissents gained significance Legal analysts monitor close cases such as Miller because a shift by one justice would signal a change in the law
Dissents are a relatively recent phenome-non Chief JusticeJOHN MARSHALL, who served on the Supreme Court from 1801 to 1835, urged unanimity on the Court to demonstrate that its opinions were the last word on an issue Others believed that individual conscience should dictate a justice’s opinions, without regard to unanimity In its early years, most of the Supreme Court’s decisions showed little or no dissent During the late nineteenth century and early twentieth century, as the Court became firmly established as theLAW OF THE LAND, more dissents appeared Yet, even those who dis-sented during this period often recognized the importance of consensus opinions For in-stance, Justice Oliver Wendell Holmes Jr., a frequent and famous dissenter, wrote a scathing dissent inLOCHNER V.NEW YORK, 198 U.S 45, 25
S Ct 539, 49 L Ed 937 (1905), but not before
he expressed his reluctance to do so: “I regret sincerely that I am unable to agree with the judgment in this case, and that I think it is my duty to express my dissent” (Lochner)
International
Longshore and
Warehouse Union
members rally in
August 2002 in an
attempt to keep the
Bush administration
out of their labor
dispute with the
Pacific Maritime
Association.
AP IMAGES
488 DISQUALIFY
Trang 2By the 1960s and 1970s dissents were an
accepted part of the Court’s business, perhaps
reflecting the fractious political and social
climate of those years One frequent dissenter
during the mid–twentieth century was Justice
WILLIAM O.DOUGLAS During his 36 years on the
Court, from 1939 to 1975, Douglas wrote 524
opinions of the Court, 154 concurring opinions,
and an astounding 486 dissenting opinions In
addition, he dissented without opinion in 309
cases
JusticeBENJAMIN N.CARDOZO, of the Supreme
Court, defended those who disagree with the
majority, writing that the dissenter is “the
gladiator making a last stand against the lions.”
A few justices raised their roles as dissenters to
an art form Justices William J Brennan Jr and
THURGOOD MARSHALL displayed particular
cour-age in opposition to the majority During their
long tenure on the Court, Brennan and
Marshall were unwavering in their conviction
that the death penalty violates the Constitution
By doggedly and relentlessly repeating their
dissent, they sought to win others to their view
that the law on CAPITAL PUNISHMENT should be
changed
Together as well as separately, Brennan and
Marshall wrote scores of dissents in death
penalty cases In so doing, they opposed clear
precedent that supported the legality of capital
punishment However, both were convinced
that they were justified in their continued
opposition Brennan felt that the intrinsic
morality of the EIGHTH AMENDMENT superseded
any right of individual states to impose capital
punishment He wrote, “It would effectively
write the (CRUEL AND UNUSUAL PUNISHMENT)
[C]lause out of the BILL OF RIGHTS were we to
permit legislatures to police themselves by having
the last word on the scope of the protection that
the clause is intended to secure against their own
overreaching.” Marshall’s opposition was less
philosophical and more practical He repeatedly
pointed out that the application of the death
penalty was arbitrary and unfair, and affected
minorities disproportionately He felt a
responsi-bility to continue bringing this issue before the
public and believed that most people, if
suffi-ciently informed about all its ramifications,
would find capital punishment“shocking, unjust,
and unacceptable” (FURMAN V.GEORGIA, 408 U.S
238, 92 S Ct 2726, 33 L Ed 2d 346 [1972]
[Marshall, J., dissenting])
Some legal analysts believe that dissents are
an important part of the system of checks and balances Justice Charles E Hughes—who served
on the Court from 1910 to 1916, left the bench
to run for president, and then returned to the Court as chief justice from 1930 to 1941—
wrote, “A dissent … is an appeal to the brooding spirit of the law, to the intelligence
of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
FURTHER READINGS Mello, Michael 1995 “Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment ” Florida State Univ Law Review
22 (winter).
Neumann, Richard K 2005 Legal Reasoning and Legal Writing:
Structure, Strategy, and Style Frederick, Md.: Aspen.
Tushnet, Mark 2008 I Dissent: Great Opposing Opinions
in Landmark Supreme Court Cases Boston: Beacon.
CROSS REFERENCE Court Opinion.
DISSOLUTION Act or process of dissolving; termination; winding
up In this sense it is frequently used in the phrase dissolution of a partnership
The dissolution of a contract is itsRESCISSION
by the parties themselves or by a court that nullifies its binding force and reinstates each party to his or her original position prior to the contract
The dissolution of a corporation is the termination of its existence as a legal entity This might occur pursuant to a statute, the surrender
or expiration of its charter,LEGAL PROCEEDINGS, or
BANKRUPTCY
In domestic relations law, the term dissolu-tion refers to the ending of a marriage through
DIVORCE The dissolution of a partnership is the end
of the relationship that exists among the partners as a result of any partner discontinuing his or her involvement in the partnership, as distinguished from the winding up of the outstanding obligations of the business
DISSOLVE
To terminate; abrogate; cancel; annul; disintegrate
To release or unloose the binding force of anything
DISSOLVE 489
Trang 3The dissolution of something is the act of disorganizing or disuniting it, as in marriage, contracts, or corporations
DISTINGUISH
To set apart as being separate or different; to point out an essential disparity
To distinguish one case from another case means to show the dissimilarities between the two It means to prove a case that is cited as applicable to the case currently in dispute is really inapplicable because the two cases are different
DISTRAIN
To seize the property of an individual and retain
it until an obligation is performed The taking of the goods and chattels of a tenant by a landlord
in order to satisfy an unpaid debt
Distrain is a comprehensive term that may
be used in reference to anyDETENTIONofPERSONAL PROPERTY, lawful or unlawful
DISTRESS The seizure of personal property for the satisfac-tion of a demand
The process of distress, sometimes called distrain, began at COMMON LAW wherein a landlord had the right to confiscate the chattels
of a tenant who had defaulted on a rent payment
Today, it is regulated by statute, and is used
to mean the taking of property to enforce the performance of some obligation
A warrant of distress is aWRITthat authorizes
an officer to seize a person’s goods It is usually used in situations where a landlord has the right to obtain a LIEN on a tenant’s goods for nonpayment of rent
If PERSONAL PROPERTY is seized to enforce the payment of taxes and then publicly sold if the taxes are not subsequently paid, the sale is called a distress sale Distressed goods are chattels sold at a distress sale
DISTRIBUTEE
An heir; a person entitled to share in the distribution of an estate This term is used to denote one of the persons who is entitled, under the statute of distributions, to the personal estate
of one who is dead intestate
DISTRIBUTOR
A wholesaler; an individual, corporation, or partnership buying goods in bulk quantities from
a manufacturer at a price close to the cost of manufacturing them and reselling them at a higher price to other dealers, or to various retailers, but not directly to the general public
DISTRICT One of the territorial areas into which an entire state or country, county, municipality, or other political subdivision is divided, for judicial, political, electoral, or administrative purposes The circuit or territory within which a person may be compelled to appear Circuit of authority; province
A judicial district is a designated area of a state over which a court has been empowered to hear lawsuits that arise within it or that involve its inhabitants A federal judicial district is an area of a state in which a federal district court sits to determine matters involving federal ques-tions orDIVERSITY OF CITIZENSHIPof the parties
A congressional district is a geographical subdivision of a state that elects a representative
to Congress
A legislative district is a specific section of a state that elects a representative to the state legislature
DISTRICT AND PROSECUTING ATTORNEYS
The elected or appointed public officers of each state, county, or other political subdivision who institute criminal proceedings on behalf of the government Federal attorneys who represent the United States in prosecuting federal offenses are U.S attorneys
A district or prosecuting attorney is theLEGAL REPRESENTATIVEof the state, county, or municipality, whose primary function resides in instituting criminal proceedings against violators of state or municipal penal laws The law of the particular jurisdiction determines whether they are appointed
or elected to office and their term of office The legislature may, within the restrictions imposed by constitution or statute, prescribe the qualifications of the prosecuting attorney
He or she may be required to reside in the district or satisfy a particular minimum-age requisite District attorneys usually must be attorneys-at-law who are licensed to practice in the state and, depending upon the jurisdiction,
490 DISTINGUISH
Trang 4must have spent a specified number of years
practicing law
The duty of the district attorney is to ensure
that offenses committed against the public are
rectified pursuant to the commencement of
criminal prosecutions He or she may exercise
considerable discretion in ascertaining the
man-ner in which the duty of district attorney should
be performed The prosecuting attorney,
how-ever, must be fair and unbiased, and refrain from
conduct that would deprive the defendant of any
constitutional or statutory right The legislature
may regulate his or her functions within
statutory or constitutional limitations
A district attorney determines when to
initiate a particular prosecution and must
exercise due diligence in conducting the
prose-cution The individual may neither restrain the
GRAND JURYfrom considering charges by
assert-ing that the government will not prosecute nor
dismiss a criminal charge pending before it He
or she does, however, maintain control of
criminal proceedings in the trial court Statutes
define the duties of the prosecuting attorney
with respect to civil litigation
The respective powers of the district
attor-ney and of the attorattor-ney general, the principal
law officer of the state, are ordinarily disparate
Neither the district attorney nor the attorney
general may impinge upon powers reserved
exclusively to the other
A district attorney is immune from liability
for damages incurred as a result of his or her
acts or omissions that occur within the scope of
official duties, although the person may be held
liable for conduct in excess of such scope
Statutes prescribe the compensation of
pro-secuting attorneys
A prosecuting attorney whose term is
regulated by law cannot be removed or
sus-pended from office, other than pursuant to the
manner authorized by constitution or statute
The grounds specified by law govern removal
Mere misconduct committed in office, such as
habitual intoxication, is usually an insufficient
basis for removal In some jurisdictions,
howev-er, conduct that is entirely extraneous to official
duties may reveal flaws in personal character
that render the individual unfit to hold the
office and subject him or her to removal
Suspension or removal may ensue from
official misconduct or neglect of duty, such as
the improper refusal to initiate criminal inves-tigations or prosecutions, or inept execution of such proceedings
Removal may also be justified on the basis
of the prosecuting attorney’s failure to comply with the constitutional duties of disclosure imposed by Brady v Maryland, 373 U.S 83,
83 S Ct 1194, 10 L Ed 2d 215 (1963) The Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the GOOD FAITH or
BAD FAITHof the prosecution.”
Removal of a prosecuting attorney may also
be predicated on his or her conferral of positions
in the office to friends or relatives regardless of their qualifications
The removal process must comply with constitutional or statutory requirements In some jurisdictions, the district attorney may
be removed by the court in proceedings com-menced by the interested parties or by IMPEACH-MENT The legislature, within constitutional limitations, may designate the nature of the removal proceeding
Statutes provide for the appointment of assistant district attorneys to render supplemen-tary services to the district attorney Indepen-dent of statute, however, the courts frequently exercise discretionary power to appoint attor-neys to assist the prosecuting attorney in cri-minal cases Statutes primarily govern the qualifications, salary, tenure, powers, and re-moval of such attorneys
Special prosecutors are attorneys appointed
by the government to investigate criminal offenses involving officials of the executive branch, since the government cannot effectively investigate itself
CROSS REFERENCES Criminal Procedure; Due Process of Law; Prosecutor;
Selective Prosecution.
DISTRICT COURT
A designation of an inferior state court that exercises general jurisdiction that it has been granted by the constitution or statute which created it A U.S judicial tribunal with original jurisdiction to try cases or controversies that fall within its limited jurisdiction
DISTRICT COURT 491
Trang 5A state district might, for example, deter-mine civil actions between state residents based upon contract violations or TORTIOUS conduct that occurred within the state
Federal district courts are located in places designated by federal law, hearing cases in at least one place in every state Most federal cases, whether civil actions or criminal prosecutions for violations of federal law, commence in district court Cases arising under the Constitu-tion, federal law, or treaty, or cases between citizens of different states, must also involve an interest worth more than $75,000 before the district court can exercise its jurisdiction
The federal district courts also have original and exclusive jurisdiction of BANKRUPTCY cases, and admiralty, maritime, and prize cases, which determine rights in ships and cargo captured at sea State Courts are powerless to hear these kinds of controversies
A party can appeal a decision made in district court in theCOURT OF APPEAL
CROSS REFERENCE Federal Courts.
DISTRICT OF COLUMBIA
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten miles square) as may, by Cession of particular States, and the acceptance of Con-gress, become the Seat of the Government of the United States” (U.S Const Art I, § 8) The U.S
Constitution, with this proclamation, left the legal formation of a national capital up to the U.S Congress To this day, the District of Columbia is neither a state nor a territory and remains under congressional jurisdiction
History The location of the national capital was born out of a political compromise between the northern and southern states after the United States had achieved its independence The South feared that the North would have too much influence if the capital were placed in a northern city The North demanded federal assistance
in paying its Revolutionary War debt, some-thing the South was strongly against.ALEXANDER HAMILTON initiated a compromise whereby the federal government would pay off the war debt
in return for locating the capital between the
states of Maryland and Virginia on the Potomac River
In 1800 Virginia and Maryland ceded portions of land to the federal government The citizens living in the new capital were required to give up all the political rights they had enjoyed as inhabitants of Maryland and Virginia In return, Congress, which had exclu-sive power over the district, would allow them some form of self-government In 1802 Con-gress called for an appointed mayor and an elected council in the district By 1820 the election of the mayor was also permitted This form of representative government lasted in the district until 1874, when Congress abolished the citizens’ right to vote for their local officials and established a three-person board
of commissioners appointed by the president For over one hundred years, the residents of the District of Columbia were denied the democratic right to elected local representation
Although residents of the district had always been required to pay federal INCOME TAX and serve in the military, their right to vote in presidential elections was denied until the 1961 passage of the TWENTY-THIRD AMENDMENT to the Constitution This amendment granted the district a number of votes in the ELECTORAL COLLEGE, not to exceed the number given to the least populous state
Home Rule
In 1967, through an executive order (Exec Order No 11379, 32 FR 15625, 1967 WL 7776 [Pres.]), President LYNDON B.JOHNSON did away with the three-member board of commissioners and appointed a mayor and a council for the district In 1970 the district was given back its nonvoting delegate in Congress But this still did not satisfy residents who demanded full self-determination Congress then passed the District
HOME RULEAct of 1973 (Pub L 93-198, Dec 24,
1973, 87 Stat 774), and restored to the citizens their right to vote for a local government For the first time in exactly a hundred years, the residents of the District of Columbia were able
to vote for a mayor and a 13-member council The Constitution granted Congress com-plete legislative authority over the District of Columbia Congress alone has the jurisdiction
to expand the district’s powers over local government affairs It also has the jurisdiction
to contract those same powers Congress,
492 DISTRICT OF COLUMBIA
Trang 6through the Home Rule Act, dictated the
legislative powers to the district council and
the executive powers to the mayor Advisory
neighborhood commissions, which are groups
elected by the residents, advise the council on
matters of PUBLIC POLICY Congress still retains
ultimate legislative authority through its power
to veto any of the district’s legislation
Statehood
Besides the citizens of U.S territories, district
residents are the only U.S citizens without full
representation in Congress and with federal
limitations on their own local government
Advocates of statehood rebel against such
restrictions They argue that because the district’s
congressional delegate is not allowed to vote,
residents are subject to a fundamental
demo-cratic wrong, taxation without representation
They add that because Congress retains control
over the city’s purse strings, city officials are
powerless in raising more revenue Federal
restrictions on taxation have prevented the
district from taxing commuters as have some
other U.S cities, which could have given the district a huge tax windfall
Opponents of statehood argue that the District of Columbia belongs to all U.S citizens, and therefore all citizens should have a say in how it is managed Constitutionally, Congress has complete authority over the district, and
to have it otherwise would require a CONSTITU-TIONAL AMENDMENT (supporters dismiss this argument, pointing out that 37 states were allowed into the Union through only a simple majority vote in Congress) If the district were
to become an independent state, some oppo-nents argue, the federal government would have to abide by the laws of this new state
Opponents of statehood also maintain that the district’s power needs to be checked by Congress because of the district’s financial difficulties
The push toward statehood has become
a partisan issue, with the DEMOCRATIC PARTY
generally in favor of it and the REPUBLICAN PARTY
generally opposed One reason for this division
is the political makeup of the city, which is
An 1880 drawing of the District of Columbia by C.R Parsons, Article 1, Section 8 of the U.S Constitution grants Congress complete legislative authority over the district LIBRARY OF CONGRESS DISTRICT OF COLUMBIA 493
Trang 7predominantly Democratic Statehood would add more Democratic members to the House and the Senate When the Democrats won the White House in 1992, the stage was set for the statehood issue to move forward through the 103d Congress
On November 21, 1993, the House consid-ered Bill 51, calling for the creation of New Columbia, the nation’s fifty-first state Demo-crats spoke in favor of statehood, saying it would give D.C residents the same benefits of citizenship that are enjoyed by other U.S
citizens Republicans spoke out against it, saying the city was unable to govern itself Republican sentiments carried the day, defeating the bill
by a vote of 277–153
Legal Challenge to Voting Rights After Congress rejected the idea of statehood for the district, D.C residents felt they had exhausted their legislative options for change
They explored other ways of increasing their influence in Congress, but again the fact that their representative could not vote in Congress posed a major roadblock A group of residents sought to overcome this limitation by filing a federal lawsuit that challenged the status quo
Lois Adams and 75 other D.C residents filed the lawsuit against the president and Congress, arguing that it was unjust that they pay taxes and defend the country in times of war, yet they could not send elected representa-tives to vote on taxes and war They claimed that this deprived them of EQUAL PROTECTIONof the law and denied them a republican form of government They also argued that this depri-vation violated their due process rights and abridged their PRIVILEGES AND IMMUNITIES as citizens of the United States
A special three-judge panel heard the case but in the end rejected these arguments In Adams v Clinton, 90 F.Supp.2d 35 (D.C 2000), the court addressed both jurisdictional and constitutional issues Regarding jurisdiction, the executive and legislative branches contended that the court had no right to even hear the case because the plaintiffs raised issues that were not subject to review by the judicial branch
However, the court rejected the idea that the issues were political questions beyond its reach and reviewed the merits of the case
The court looked at the language of the Constitution, as well as history and legal
precedent, in making is decisions It first held that Article I of the Constitution repeatedly refers to “each state,” thereby demonstrating that the term did not refer generally to all the people of the United States but to citizens of individual states Tying the right to Congressio-nal representation to statehood was reinforced
by the fact that residents of U.S territories cannot elect voting representatives to Congress
In addition, history and precedent revealed that the District of Columbia had never been considered a“state” for constitutional purposes Therefore, the direct constitutional challenge had no merit
The court rejected an even more novel theory advanced by the plaintiffs that they were entitled to vote in Maryland elections because of their “residual citizenship.” This theory relies on the fact that residents of the land ceded by Maryland to form the district continued to vote in Maryland elections be-tween 1790 and 1801, when Congress assumed jurisdiction and provided for the district’s government The court dismissed this claim, noting that a 1964 court decision had rejected the concept of residual citizenship based on the fact that former residents of Maryland lost their state citizenship when the District of Columbia separated from it
Finally, the court concluded that the Equal Protection Clause of theFOURTEENTH AMENDMENT
could not be used to strike down another constitutional provision Though the court found that Congress and the executive branch had failed to give a compelling reason for denying D.C residents voting representatives, the denial was based on a provision of Article I Unlike a statute that contains illegal classifica-tions, the constitution cannot be ruled uncon-stitutional Therefore, D.C residents had to convince Congress to either grant it statehood
or pass a constitutional amendment that would allow voting representatives from the district The Courts
The courts of the District of Columbia were established by an act of Congress Originally, federal courts heard controversies that arose in the District of Columbia Disputes over federal
or district law came under the jurisdiction of the federal district courts Appeals went from the district courts to the Court of Appeals for the District of Columbia Circuit, and then to the U.S Supreme Court
494 DISTRICT OF COLUMBIA
Trang 8Just as the legislative branch of the district
government became less dependent on the
federal system in the 1970s, so too did the
courts The district court system was completely
reorganized under the District of Columbia
Court Reform and CRIMINAL PROCEDURE Act of
1970 (Pub L 91-358, July 29, 1970, 84 Stat
473; Pub L 99-573, § 17, Oct 28, 1973, 100
Stat 3234, 3235) The U.S District court no
longer has jurisdiction over criminal or civil
actions occurring under D.C law These cases
are now heard by the district’s new trial court,
the Superior Court The District of Columbia
Court of Appeals has jurisdiction to review
decisions of the Superior Court
FURTHER READINGS
Harris, Charles Wesley 1995 Congress and the Governance of
the Nation’s Capital: The Conflict of Federal and Local
Interests Washington D.C.: Georgetown Univ Press.
Kofie, Nelson 1999 Race, Class, and the Struggle for
Neighborhood in Washington, D.C (Studies in African
American History and Culture) New York: Routledge.
Markham, Steven 1998 Statehood for the District of
Columbia: Is it Constitutional? Is it Wise? Is it Necessary?
Washington, D.C.: National Legal Center for the Public
Interest.
Schrag, Philip G 1985 Behind the Scenes: The Politics
of a Constitutional Convention Washington D.C.:
Georgetown Univ Press.
CROSS REFERENCE
States ’ Rights.
DISTRICT OF COLUMBIA V HELLER
The Supreme Court’s decision in District of
Columbia v Heller (554 U.S _, 128 S Ct
2783, 171 L Ed 2d 637[2008]) was the most
significant SECOND AMENDMENT decision in U.S
history In a 5–4 decision, the Court affirmed
a decision by the D.C Circuit Court of Appeals
to strike down a ban on handguns in the
District of Columbia, ruling that the Second
Amendment guarantees an individual the
right to bear arms Gun rights activists hailed
the decision, while critics argued that Justice
ANTONIN SCALIA, who wrote the majority opinion,
misread the words of the amendment to reach
the conclusion
Concerned with widespread use of
hand-guns in violent crimes, the District of Columbia
in 1976 enacted a series of statutes that forbid or
severely restricted the possession of firearms
Under these statutes, an applicant was
requi-red to register a handgun with the D.C city
police department, and in most instances, the
registration was prohibited The statute also generally prohibited a person from carrying a pistol without a license For those with lawfully registered handguns, another statute required the owner to keep the firearm unloaded and disassembled or otherwise bound by a trigger lock The clear intention behind the statute was to decrease gun-related crime by limiting the number of guns on the street However, data comparing the current crime rates with those in 1976 showed that the GUN CONTROL
law did not have the desired effect One opponent of the gun control law noted that the HOMICIDE rate in the District of Columbia was 72 percent higher in 2001 than it was in
1976 However, at least one major public health study contradicted this result, conclud-ing that the D.C suicide and homicide rates dropped after the ban was adopted
The Second Amendment provides,“A well-regulatedMILITIA, being necessary to the security
of a free state, the right of the people to keep and bear Arms, shall not be infringed.”
Historically, the Supreme Court focused its Second Amendment interpretation to allow states to maintain their own militias separate from federally controlled militia In United States
v Cruikshank (92 U.S 542, 23 L Ed 588 [1875]), the Court declared that “the Second Amend-ment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.”
In more recent years, however, lower courts reconsidered the scope of this right Courts provided extensive analysis of both the history and the text of the amendment to determine how this amendment should apply For exam-ple, the Fifth Circuit Court of Appeals in United States v Emerson (270 F.3d 203 [5th Cir 2001]) determined that the right to bear arms was an individual right bestowed upon each citizen, rather than a collective right of the people through their states to maintain militias sepa-rate from the federal military Other states and commentators have argued that the Founders only intended for the Second Amendment to apply to militias, because maintaining a state militia was a major issue at the time the Second Amendment was ratified
Six residents of the District of Columbia challenged the law Four of the plaintiffs wanted to have guns in their homes to provide
DISTRICT OF COLUMBIA V HELLER 495
Trang 9SELF-DEFENSE AnotherPLAINTIFFwanted to keep
a gun assembled in his home without a trigger lock A final plaintiff, Dick Heller (the named plaintiff in the Supreme Court action), wanted
to possess a gun both at home and in his position
as a special police officer The U.S district court for the District of Columbia ruled in 2004 that citizens do not have the right to challenge a law based on the Second Amendment
In 2007 the U.S Court of Appeals for the District of Columbia sparked a major debate when it ruled that the D.C restrictions on handguns violated the Second Amendment In
a lengthy opinion by Judge Laurence H Silber-man, the court ruled that the Second Amend-ment provided an individual right and that the D.C statute violated this individual right
Silberman based his reasoning primarily on the text of the amendment itself (Parker v Dist of Columbia, 478 F.3d 370 [D.C Cir 2007])
The Supreme Court granted CERTIORARI on November 20, 2007, to review the case Nearly
48 parties filed amicus briefs with the Court, arguing either in favor of gun rights or in favor
of gun control laws Justice ANTHONY KENNEDY
asked a series of questions focused on the need
to keep arms in a home for the purpose of self-protection At one point in the discussion, Kennedy suggested that the amendment had
in mind the right of the “remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies.” Other justices, including Justice
STEPHEN BREYER, suggested that the ban on handguns might actually interfere with self-defense of a home, noting that the District of Columbia allows residents to keep rifles and shotguns in their homes for self-defense
In a 5–4 decision, the Court affirmed the ruling of the D.C Circuit Justice Antonin Scalia’s majority opinion focused heavily on the text of the amendment itself Scalia concluded that the amendment consists of two parts, including a prefatory clause and an operative clause According to Scalia, the amendment could be rephrased to read as follows:“Because
a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
Scalia noted that the Second Amendment is one of three places in theBILL OF RIGHTS where the phrase“the right of the people” is used The two other instances include the assembly and
petition clause of the FIRST AMENDMENT and the SEARCH AND SEIZURE clause of the FOURTH AMENDMENT In each instance, Scalia noted, the phrase refers to an individual right, rather than
a collective right Moreover, Scalia noted that prior versions of the Second Amendment clearly referred to the right to bear arms as an individual right Thus, the Court’s first major conclusion was that the Second Amendment indeed provides individual, rather than collec-tive, rights
Based on this conclusion, the Court deter-mined that the D.C handgun ban and the trigger-lock requirement both violated the Sec-ond Amendment The total handgun ban effectively prohibits an entire class of “arms” that citizens use for lawful self-defense, accord-ing to the Court Moreover, the majority determined that the trigger-lock requirement makes it impossible for citizens to use guns for self-defense, thus rendering this restriction to
be unconstitutional as well
Justices JOHN PAUL STEVENS and Stephen Breyer dissented, and their dissents were joined
by Justices DAVID SOUTER and RUTH BADER GINSBURG Justice Stevens concluded that even though the Second Amendment protects indi-vidual rights, prior precedent establishes that the amendment “does not curtail the Legisla-ture’s power to regulate the nonmilitary use and ownership of weapons.” Justice Breyer agreed with Stevens, but also concluded that the amend-ment’s protections are not absolute and that the government may regulate the use of guns
FURTHER READINGS Charles, Patrick J 2009 The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court Jefferson, N.C.: McFarland.
Doherty, Brian 2008 Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment Washington, D.C.: Cato Institute.
Halbrook, Stephen P 2008 The Founders’ Second Amend-ment Stanford, Calf.: Stanford Univ Press.
DISTURBANCE OF PUBLIC MEETINGS
It was aMISDEMEANORatCOMMON LAWto be guilty
of conduct that tended to disturb a public assembly, though the prosecution, in most instances, was required to prove that the distur-bance was caused wantonly or willfully In most jurisdictions there is statutory crime for such conduct and the disturbance need not be so turbulent as to constitute a riot
496 DISTURBANCE OF PUBLIC MEETINGS
Trang 10DISTURBANCE OF THE PEACE
An offense constituting a malicious and willful
intrusion upon the peace and quiet of a community
or neighborhood
The crime is usually committed by an
offensive or tumultuous act, such as the making
of loud or unusual noises, or quarreling in public
The term is similar in meaning toBREACH OF THE
PEACE; however, the latter is generally a broader
term, encompassing all violations of public peace
and order It can also be a form of DISORDERLY
CONDUCTand is similarly punishable upon
convic-tion by a fine, imprisonment, or both
DIVERS
Several; any number more than two; different
Divers is a collective term used to group a
number of unspecified people, objects, or acts
It is used frequently to describe property, as in
divers parcels of land
DIVERSION
A turning aside or altering of the natural course or
route of a thing The term is chiefly applied to the
unauthorized change or alteration of a water
course to the prejudice of a lower riparian, or to
the unauthorized use of funds
A program for the disposition of a criminal
charge without a criminal trial; sometimes called
operation de nova, intervention, or deferred
prosecution
The disposition is conditional on the
defen-dant’s performing certain tasks or participating
in a treatment program If the conditions are
successfully completed, the charge is dismissed
But if the accused does not meet his or her
obligations, prosecution may be instituted
CROSS REFERENCE
Riparian Rights.
DIVERSITY OF CITIZENSHIP
A phrase used with reference to the jurisdiction of
the federal courts which, under the U.S
Constitu-tion, Art III, § 2, extends to cases between citizens
of different states designating the condition
existing when the party on one side of a lawsuit
is a citizen of one state and the party on the other
side is a citizen of another state, or between a citizen
of a state and an alien The requisite jurisdictional
amount must, in addition, be met
DIVERSITY OF CITIZENSHIPis one of the factors that will allow a federal district court to exercise its authority to hear a lawsuit This authority is called diversity jurisdiction It means that a case involving questions that must be answered according to state laws may be heard in federal court if the parties on the two sides of the case are from different states No matter how many parties are involved in a lawsuit, there must
be complete diversity in order for the federal court to exercise this type of authority If a single PLAINTIFF is a citizen of the same state
as any defendant, there is no diversity and the case must be pursued in a state court
Being a citizen of a state is something more than simply owning property or being physically present within the state Citizenship means that the individual has a residence in the state and intends to have that residence as his or her present home Residence plus this intent makes that place the individual’s domicile, and a party can have only one domicile at a time Citizenship does not mean that the individual must swear that he or she never intends to move, but the residence and the intent to consider it home are essential Students, prisoners, and service personnel can establish a domicile in a state even though they are living in it involuntarily or temporarily
Corporations are citizens of the state in which they are incorporated and also of the state where they maintain their principal place
of business This citizenship in two places has the effect of narrowing the number of cases that qualify for a federal court’s diversity jurisdiction because a corporation’s citizenship
is not diverse from the citizenship of anyone else in either of those two states
The citizenship of each party must be determined as of the time the lawsuit is commenced A party’s domicile at the time of the events that give rise to theCAUSE OF ACTIONor a change of domicile during the course of proceed-ings does not affect the court’s jurisdiction This rule, of course, gives a person contemplating a lawsuit the opportunity to change his or her domicile just before serving legal papers that start
an action This tactic has been challenged on a few occasions on the ground that it violates another federal law that prohibits COLLUSIONto create federal jurisdiction Generally, the courts have ruled that a plaintiff’s motives in moving to
a new state are not determinative, and the only question is whether in fact the plaintiff’s domicile
DIVERSITY OF CITIZENSHIP 497