Agenda for 14th Class Handouts Slides Readings: Common

Agenda for 14th Class Handouts Slides Readings: Common Law II Name plates Gun rights after Heller (continued) Common Law Langridge v Levy Winterbottom v Wright 1 Assignment for Next Class

Review any questions from todays assignment that we dont discuss in class Read Common Law II packet Questions to think about / Short papers Everyone should be prepared to discuss all the questions on the last page of the Common Law I handout Mandatory writing Group 5. Qs 1 & 4 Group 6. Qs 2 & 4 Group 7. Qs 3 & 5 Group 8. Qs 3 & 5 Optional writing -- All questions that are not mandatory Review the Second Writing Assignment 2nd Writing Assignment Due Thursday, 2/28 at 5PM 2 Review of Last Class

Heller Scalia opinion says that it should not be interpreted to cast doubt on certain types of regulation (felons, mentally ill, schools, etc.) But dicta; Not clear what basis history? Reasonableness? Both Scalia and Stevens have to update Second Amendment Scalia. Emphasis on self-defense, not militia Stevens. What does Preamble mean today, when no militia? Marzzarella and Moore 2 approaches to 2nd Amendment Does it make sense today Intermediate scrutiny Important governmental interest, good fit Posners pragmatism Is there social science evidence to support regulation Historical 3 Is regulation one that can be traced back to the Founding era?

Questions 4) Would a law that banned a magazine capable of storing more than 10 bullets or capable of being quickly replaced be constitutional? A magazine is an ammunition storage and feeding device. So a magazine with 10 bullets would enable the shooter to fire 10 bullets consecutively without having to reload the weapon. If a magazine is easily replaced, a shooter could quickly replace a spent magazine (the one with no remaining bullets) with a loaded magazine. Without such a magazine, the shooter would have to reload bullets into the magazine one at a time, which is very time consuming. 5) Washington D.C. requires all gun owners to register their guns. To register, the gun owner must supply his or her name, address, and information about the gun. The gun owner must also submit to being fingerprinted and photographed, must attend a firearms training course, and must submit to a background check every six months. Is the law constitutional? Does it matter that registration of handguns (pistols and revolvers) was common in the U.S. for over a century, but that it was rare for long guns (e.g. rifles) to be subject to registration requirements? Does it

matter that registration of handguns was common, but that the fingerprinting, photographing, and course requirements are novel? Questions 6) Would a law that required a five-day waiting period before buying a gun be constitutional? Such a law would require the purchaser to first go to a store to express an interest in buying a gun and then require the purchaser to go back to the store five or more days later to actually purchase it and take possession of it. 7) A federal statute, 18 USC 922(g)(3) makes it unlawful for any person . who is an unlawful user of any controlled substance to possess any firearm or ammunition. Is 18 USC 922(g)(3) constitutional? Note that under federal law, marijuana is a controlled substance. Questions 8) A New York City law severely limits the ability of residents to possess

guns outside their homes unless they have a special and difficult to get permit. Those without the special permit may possess or transport guns outside their homes only if they are taking their guns to one of seven licensed shooting ranges in New York City. New Yorkers may not transport guns to second homes, to hunting grounds, or to shooting ranges outside the city. New York City argues that the ban on transportation to places other than licensed shooting ranges is justified because the seven licensed shooting ranges must keep rigorous records. If the law did not ban transportation to other places, people caught transporting guns could just claim they were transporting them to a shooting range or other location outside the city that did not keep records. Common Law Interpretation Holdings If you were a legislator trying to make the case into a statute, what would the statute say? Holding may or not be stated in the opinion itself Even if holding is stated in case itself

Later judges not bound by that statement of holding Later judges are free to interpret case in different way Free to construct different holding, as long as consistent with Facts and ruling in prior case Convincing policy argument Examples based on Marzzarella A law that bans possession of a gun with an erased serial number is not a violation of the Second Amendment Intermediate scrutiny is the appropriate standard for evaluating statutes and regulations that may violate the Second Amendment Intermediate scrutiny is the appropriate standard for evaluating whether a regulation restricting ownership or possession of particular types of guns violates the Second Amendment 7 Holdings Examples based on Griggs Good Use of an aptitude or ability test that has a disparate impact on a protected group and which has not been show to be significantly

related to successful job performance is a violation of Title VII An employment practice that has a disparate impact on a protected group and which has not been show to be significantly related to successful job performance is a violation of Title VII Probably too narrow (but plausible) Use of an aptitude or ability test that has a disparate impact on a protected group and which has not been show to be significantly related to successful job performance is a violation of Title VII, if the employer has a history of discrimination Too narrow (but correct) Duke Powers use of the Wonderlic and Bennet tests violates Title VII Too broad (and wrong) Aptitude and ability tests violate Title VII 8 Holdings Examples based on Marzzarella Good A law that bans possession of a gun with an erased serial number is not a violation of the Second Amendment

Intermediate scrutiny is the appropriate standard for evaluating statutes and regulations that may violate the Second Amendment Probably too narrow (but plausible) Use of an aptitude or ability test that has a disparate impact on a protected group and which has not been show to be significantly related to successful job performance is a violation of Title VII, if the employer has a history of discrimination Too narrow (but correct) Duke Powers use of the Wonderlic and Bennet tests violates Title VII Too broad (and wrong) Aptitude and ability tests violate Title VII 9 Common Law Cases Langridge v Levy Father purchased gun. Seller stated & warranted that gun was safe

Implicit that seller knew gun was not safe Son was injured and sued Court: Son can recover damages from seller Injured person cannot sue for breach of contract unless s/he was a party to the contract Privity of contract rule Exception for fraud where person making misrepresentation knew another might be harmed Winterbottom v Wright Wright supplied mail coaches to Postmaster Contract required them to be safe Atkinson contracted with Postmaster to supply drivers Winterbottom was employed by Atkinson Winterbottom was injured, allegedly because the coach was not safe Court: Winterbottom cannot recover from Wright 10 Because of privity of contract rule Questions

1. The judges were concerned that if they allowed the plaintiff to prevail in Winterbottom v Wright there would be the most absurd and outrageous consequences and an infinity of actions. What sort of cases were they concerned to prevent? Why? 2. The case most favorable to the plaintiff is Levy v Langridge. If you were the plaintiffs lawyer in Winterbottom v Wright, how would you have used that case to argue that the defendant in this case should be liable to your client? If you were the defendants lawyer, how would you respond? 3. Why do you think the plaintiff won in Levy v Langridge, but the plaintiff lost in Winterbottom v Wright? Consider both legal and social reasons. 4. What is the holding in Winterbottom v Wright? That is, state in a sentence the legal rule established by this case. 5. Judge Rolfe says that judges should not be influenced by the hardship that the plaintiff suffers on account of the absence of a remedy. Why not? What should influence a judge? What influenced the judges in this case? 11

Questions 6. If Wright had sold a defective coach to Langridge, and Langridges wife had been injured while riding in the coach, would Wright be liable to Langridges wife? 7. If the Postmaster had told Wright that the mail-coach would be used by coachmen, and Wright had said that the mail-coach could be safely used by coachmen, would Wright be liable to any coachman injured by a defective coach? 8. If Wright had put explosives under the mail-coach seat, which had gone off while Winterbottom had been sitting on the mail-coach seat, would Wright be liable to Winterbottom? 12

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