author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Rehnquist | 1,987 | 19 | majority | Burke v. Barnes | https://www.courtlistener.com/opinion/111787/burke-v-barnes/ | repealed Fla. Stat. 192.06 (4) is unconstitutional as applied to a church parking lot used for commercial purposes and an injunction against its application to said lot. This relief is, of course, inappropriate now that the statute has been repealed." We see no reason to treat a challenge to the validity of a statute that has expired any differently from a challenge to the validity of a statute that has been repealed, and accordingly hold that any issues concerning whether H. R. 4042 became a law were mooted when that bill expired by its own terms The failure of the bill to have any present effect does not depend on any decision as to whether the President's action was *364 a "pocket veto"; the bill by its own terms became a dead letter on September 30, regardless of whether it had previously been enacted into law or not. See also Respondents contend that other issues in the case keep it from being moot. They first assert that there remains a live controversy over the failure of petitioner Burke to publish H. R. 4042 in the Statutes at Large as a duly enacted law, in accordance with the provisions of 1 U.S. C. 106a and 112 (1982 ed., Supp. III). This inaction, respondents cryptically claim, caused the "nullification of their lawmaking processes." Brief for Respondents Speaker and Bipartisan Leadership Group 50. We fail to see how any interest in the "lawmaking process" that might be served by the publication of duly enacted statutes can survive the life of the statutes themselves.[*] Respondents also claim that funds expended on military aid without the certification required by H. R. 4042 might at some future date be subject to recovery under the provisions of 31 U.S. C. 1341, 1349-1351, 3521. These laws relate to the auditing and account settlement of Government expenditures by the Comptroller General. But we think that this argument likewise fails to show that there is a live controversy here. There is no indication of a presently existing dispute as to the accounting obligations, and if such a dispute were to arise it would not be between the parties to this case. "[S]uch speculative contingencies afford no basis for our passing on the substantive issues [respondents] would have us decide *365 with respect to the" now-expired provisions of H. R. 4042. The judgment of the Court of Appeals is therefore vacated, and the case is remanded to that court with instructions to remand the case to the District Court with instructions to dismiss the complaint. United It is so ordered. JUSTICE |
Justice Marshall | 1,981 | 15 | dissenting | Rhodes v. Chapman | https://www.courtlistener.com/opinion/110518/rhodes-v-chapman/ | From reading the Court's opinion in this case, one would surely conclude that the Southern Ohio Correctional Facility (SOCF) is a safe, spacious prison that happens to include many two-inmate cells because the State has determined that that is the best way to run the prison. But the facility *370 described by the majority is not the one involved in this case. SOCF is overcrowded, unhealthful, and dangerous. None of those conditions results from a considered policy judgment on the part of the State. Until the Court's opinion today, absolutely no onecertainly not the "state legislatures" or "prison officials" to whom the majority suggests, see ante, at 352, that we defer in analyzing constitutional questionshad suggested that forcing long-term inmates to share tiny cells designed to hold only one individual might be a good thing. On the contrary, as the District Court noted, "everybody" is in agreement that double celling is undesirable.[1] No one argued at trial and no one has contended here that double celling was a legislative policy judgment. No one has asserted that prison officials imposed it as a disciplinary or a security matter. And no one has claimed that the practice has anything whatsoever to do with "punish[ing] justly," "deter[ring] future crime," or "return[ing] imprisoned persons to society with an improved chance of being useful, law-abiding citizens." See ante, at 352. The evidence and the District Court's findings clearly demonstrate that the only reason double celling was imposed on inmates at SOCF was that more individuals were sent there than the prison was ever designed to hold.[2] I do not dispute that the state legislature indeed made policy judgments when it built SOCF. It decided that Ohio needed a maximum-security prison that would house some 1,600 inmates. In keeping with prevailing expert opinion, the legislature made the further judgments that each inmate would have his own cell and that each cell would have approximately 63 square feet of floor space. But because of prison overcrowding. hundreds of the cells are shared, or "doubled," which is hardly what the legislature intended. *371 In a doubled cell, each inmate has only some 30-35 square feet of floor space.[3] Most of the windows in the Supreme Court building are larger than that. The conclusion of every expert who testified at trial and of every serious study of which I am aware is that a long-term inmate must have to himself, at the very least, 50 square feet of floor spacean area smaller than that occupied by a good-sized automobile in order to avoid serious mental, emotional, and physical deterioration.[4] |
Justice Marshall | 1,981 | 15 | dissenting | Rhodes v. Chapman | https://www.courtlistener.com/opinion/110518/rhodes-v-chapman/ | in order to avoid serious mental, emotional, and physical deterioration.[4] The District Court found that as a fact. 434 *, Even petitioners, in their brief in this Court, concede that double celling as practiced at SOCF is "less than desirable." Brief for Petitioners 17. The Eighth Amendment "embodies `broad and idealistic concepts of dignity, civilized standards, humanity, and decency,'" against which conditions of confinement must be judged. quoting Thus the State cannot impose punishment that violates "the evolving standards of decency that mark the progress of a maturing society." For me, the legislative judgment and the consistent conclusions by those who have studied the problem provide considerable evidence that those standards condemn imprisonment in conditions so crowded that serious harm will result. The record amply demonstrates that those conditions are present here. It is surely not disputed that SOCF is severely overcrowded. The prison is operating at 38% above its design capacity.[5] It is also significant that *373 some two-thirds of the inmates at SOCF are serving lengthy or life sentences, for, as we have said elsewhere, "the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards." Nor is double celling a short-term response to a temporary problem. The trial court found, and it is not contested, that double celling, if not enjoined, will continue for the foreseeable future. The trial court also found that most of the double-celled inmates spend most of their time in their cells.[6] *374 It is simply not true, as the majority asserts, that "there is no evidence that double celling under these circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment." Ante, at 348. The District Court concluded from the record before it that long exposure to these conditions will "necessarily" involve "excess limitation of general movement as well as physical and mental injury" 434 F. Supp., at 0[7] And of course, of all the judges who have been involved in this case, the trial judge is the only one who has actually visited the prison. That is simply an additional reason to give in this case the *375 deference we have always accorded to the careful conclusions of the finder of fact. There is not a shred of evidence to suggest that anyone who has given the matter serious thought has ever approved, as the majority does today, conditions of confinement such as those present at SOCF. I see no reason to set aside the concurrent conclusions of two courts that the overcrowding and double celling here in issue |
Justice Marshall | 1,981 | 15 | dissenting | Rhodes v. Chapman | https://www.courtlistener.com/opinion/110518/rhodes-v-chapman/ | courts that the overcrowding and double celling here in issue are sufficiently severe that they will, if left unchecked, cause deterioration in respondents' mental and physical health. These conditions in my view go well beyond contemporary standards of decency and therefore violate the Eighth and Fourteenth Amendments. I would affirm the judgment of the Court of Appeals. If the majority did no more than state its disagreement with the courts below over the proper reading of the record, I would end my opinion here. But the Court goes further, adding some unfortunate dicta that may be read as a warning to federal courts against interference with a State's operation of its prisons. If taken too literally, the majority's admonitions might eviscerate the federal courts' traditional role of preventing a State from imposing cruel and unusual punishment through its conditions of confinement. The majority concedes that federal courts "certainly have a responsibility to scrutinize claims of cruel and unusual confinement," ante, at 352, but adds an apparent caveat: "In discharging this oversight responsibility, however, courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system: to punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law-abiding citizens." As I suggested at the outset, none of this has anything to *376 do with this case, because no one contends that the State had those goals in mind when it permitted SOCF to become overcrowded. This dictum, moreover, takes far too limited a view of the proper role of a federal court in an Eighth Amendment proceeding and, I add with some regret, far too sanguine a view of the motivations of state legislators and prison officials. Too often, state governments truly are "insensitive to the requirements of the Eighth Amendment," as is evidenced by the repeated need for federal intervention to protect the rights of inmates. See, e. g., ; ; ; ; ; aff'd, rev'd in part on other grounds, See also ante, at 353-361 (BRENNAN, J., concurring in judgment).[8] *377 A society must punish those who transgress its rules. When the offense is severe, the punishment should be of proportionate severity. But the punishment must always be administered within the limitations set down by the Constitution. With the rising crime rates of recent years, there has been an alarming tendency toward a simplistic penological philosophy that if we lock the prison |
Justice Rehnquist | 1,982 | 19 | concurring | Blanding v. DuBose | https://www.courtlistener.com/opinion/110596/blanding-v-dubose/ | The per curiam correctly concludes that the June 1, 1979, letter from Sumter County was a request for reconsideration, not a preclearance submission. Therefore, I concur in the per curiam's reasoning and conclusion. I concur reluctantly, however, for the record in this case illustrates what I view as the unreasonably burdensome and unrealistic control which the Federal Government routinely exercises over state and local governments under the Voting Rights Act. *402 The record recounts a 5-year effort by Sumter County to obtain the approval of several United States Assistant Attorneys General for an election method adopted by the South Carolina General Assembly. This effort included occasional correspondence with high-level attorneys in the Civil Rights Division of the Department of Justice, and, apparently, more frequent contact with low-level attorneys who requested information about plans, statistics, histories, names, places, and related facts. Although such communications are not unusual in dealings with today's federal bureaucracy, the record portrays a particularly frustrating effort to please a distant authority with veto power over the decisions of local officials. For example, an October 31, 1977, letter from appellees to an Assistant Attorney General explains the county's legal inability under state law to comply with various "suggestions" from the Department of Justice. The letter concludes: "This leaves us in a dilemma. The [County] Council doesn't wish to be in the position of seeming to pay no attention to your suggestion that the form of election should properly be changed; or to seem to be disregarding your suggestions. On the other hand, the County's Council is advised that it has inadequate legal power to act under South Carolina law in the manner you seem to be suggesting. Perhaps you can suggest something to us which would help us to resolve our difficulties which have us disturbed, perplexed, and confounded." 1 Record, Defendants' Exhibit 20, pp. 2-3, attached to County Defendants' Motion for Summary Judgment, filed Jan. 25, 1980. Today's decision, of course, will only reopen the dispute and again place the county at the mercy of attorneys in the Justice Department. There seems to be something inherently unsatisfactory about a system which places such discretionary *403 authority in the hands of a few unelected federal officials who are wholly detached from the realities of the locality and the preferences of the local electorate. Nonetheless, it is the system which Congress has established, and I therefore concur in the judgment. |
Justice Douglas | 1,972 | 10 | concurring | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | Although I join in the opinion of the Court, I believe that, independently of any statutory refuge which Congress may choose to provide, the Fourth Amendment shields a grand jury witness from any question (or any subpoena) which is based upon information garnered from searches which invade his own constitutionally protected privacy. I would hold that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 offends the Fourth Amendment, as does all wiretapping and bugging, for reasons which I have often expressed elsewhere. E. g., ; ; ; ; ; ; On In each of the present cases a grand jury witness seeks to prove and suppress suspected unconstitutional seizures of his own telephone conversations. And, in every relevant respect, the proceedings below were in striking parallel to those in Lumber In that case, after federal agents unlawfully seized papers belonging to the s and to their lumber company, the documents were returned upon order of the court. In the interim, however, the agents had copied them. After returning the seized originals, the prosecutor attempted to regain possession of them by issuing a grand jury subpoena duces tecum. When the petitioners refused to comply with the subpoena they *63 were convicted of contempt. In reversing those judgments, this Court, through Mr. Justice Holmes, held that the Government was barred from reaping any fruit from its forbidden act and wove into our constitutional fabric the celebrated maxim that "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." Petitioners Gelbard and Parnas and respondents Egan and Walsh occupy positions which are virtually identical to that of the s and their company. They desire to demonstrate that but for unlawful surveillance of them the grand jury would not now be seeking testimony from them. And, as in they are the victims of the alleged violations, seeking to mend no one's privacy other than their own. Finally, here, as there, the remedy preferred is permission to refuse to render the requested information. Unless is to be overruled and uprooted from those decisions which have followed it, such as -341; ; 3 U.S. 206, ; 367 U.S. 3, 8; Wong ; ; and these witnesses deserve opportunities to prove their allegations and, if successful, to withhold from the Government any further rewards of its "dirty business." (Holmes, J., dissenting). The Solicitor General does not propose that be overruled. Nor does he deny its |
Justice Douglas | 1,972 | 10 | concurring | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | not propose that be overruled. Nor does he deny its remarkable similarity. Indeed, his analysis of the constitutional issue at stake here fails even to mention that landmark decision.[1]* And none of the precedents cited by him detract from 's vitality.[2] Rather, the Government treats this decision as a "novel *65 extension" of Fourth Amendment protections, leaning heavily upon the observation that the exclusionary rule has never been extended to "provide that illegally seized evidence is inadmissible against anyone for any purpose." This aphorism is contravened, concludes the Solicitor General, by any result permitting a nondefendant to "suppress" evidence sought to be introduced at another's trial or to withhold testimony from a grand jury investigation of someone else. To be sure, no majority of this Court has ever held that "anything which deters illegal searches is thereby commanded by the Fourth Amendment." But that concern is not at stake here. No one is attempting to assert vicariously the rights of others. Here it is only necessary to adhere to the basic principle that victims of unconstitutional practices are themselves entitled to effective remedies. For, "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." And see The fact that the movants below sought to withhold evidence does not transform these cases into unusual ones. A witness is often permitted to retain exclusive custody of information where a contrary course would jeopardize important liberties such as First Amendment guarantees, ; ; ; ; In re Stolar, 401 *; Fifth Amendment privileges, or traditional testimonial privileges.[3] The same is true of Fourth Amendment authority to withhold evidence, even from a grand jury. ; No one would doubt, for example, that under and (or where state police were concerned), a telephone subscriber could obtain an injunction against unlawful wiretapping of his telephone despite the fact that such termination might remove from the Government's reach evidence with which it could convict third parties. A contrary judgment today would cripple enforcement of the Fourth Amendment. For, if these movants, who the Solicitor General concedes are not the prosecutors' targets, were required to submit to interrogation, then they (unlike prospective defendants) would have no further opportunity to vindicate their injuries. More generally, because surveillances are often "directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions," United the normal exclusionary threat of would be sharply attenuated and intelligence centers |
Justice Douglas | 1,972 | 10 | concurring | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | exclusionary threat of would be sharply attenuated and intelligence centers would be loosed from virtually every deterrent against abuse.[4] Furthermore, even *67 where the "uninvited ear" is used to obtain criminal convictions, rather than for domestic spying, a rule different from our result today would supply police with an added incentive to record the conversations of suspected conspirators in order to marshal evidence against alleged ringleaders. We are told that "[p]olice are often tempted to make illegal searches during the investigations of a large conspiracy. Once the police have established that several individuals are involved, they may deem it worthwhile to violate the constitutional rights of one member of the conspiracy (particularly a minor member) in order to obtain evidence for use against others." White & Greenspan, Standing to Object to Search and Seizure, Because defendants are normally denied "standing" to suppress evidence procured as a result of invasions of others' privacy, today's remedy is necessary to help neutralize the prosecutorial reward of such tactics. Today's remedy assumes an added and critical measure of importance for, due to the clandestine nature of electronic eavesdropping, other inhibitions on officers' abuse, such as the threat of damage actions, reform through the political process, and adverse publicity, will be of little avail in guarding privacy. Moreover, when a court assists the Government in extracting fruits from the victims of its lawless searches it degrades the integrity of the judicial system. For "[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." 367 U.S. 3, For this reason, our decisions have embraced *68 the view that "[t]he tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions. should find no sanction in the judgments of the courts, which are charged at all times with support of the Constitution." As mentioned earlier, this principle was at the heart of the decision. Later in his dissent in 277 U. S., at a case in which federal wiretappers had violated an Oregon law, Mr. Justice Holmes, citing thought that both the officers and the court were honor bound to observe the state law: "If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed." In the same case, Justice Brandeis, who was then alone in his view that wiretapping was a search within the meaning of the Fourth Amendment, phrased it |
Justice Douglas | 1,972 | 10 | concurring | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | search within the meaning of the Fourth Amendment, phrased it this way: "In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." In an entrapment case, Mr. Justice Frankfurter, with whom Justices Harlan, BRENNAN, and I joined, thought that "the federal courts have an obligation to set their face against enforcement of the law by lawless means" because "[p]ublic confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law; is the transcending value at stake." Sherman v. United (concurring in result); see also his opinion for the Court in -341. In a Self-Incrimination *69 Clause decision, MR. JUSTICE BRENNAN (joined by MR. JUSTICE MARSHALL and myself) used fewer words: "it is monstrous that courts should aid or abet the lawbreaking police officer." 401 U.S. (dissenting opinion). These standards are at war with the Government's claim that intelligence agencies may invoke the aid of the courts in order to compound their neglect of constitutional values. To be sure, at some point taint may become so attenuated that ignoring the original blunder will not breed contempt for law. But here judges are not asked merely to overlook infractions diminished by time and independent events. Rather, if these witnesses' allegations are correct, judges are being invited to become the handmaidens of intentional[5] police lawlessness by ordering these victims to elaborate on their telephonic communications of which the prosecutors would have no knowledge but for their unconstitutional surveillance. In summary, I believe that was rightly decided, that it was rooted in our continuing policy to equip victims of unconstitutional searches with effective means of redress, that it has enjoyed repeated praise in subsequent decisions, that it has not been seriously challenged here, and that it requires that we affirm the Third Circuit in Egan and Walsh and reverse the Ninth Circuit in Gelbard and Parnas. MR. |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | When a state criminal proceeding under a disputed state criminal statute is pending against a federal plaintiff at the time his federal complaint is filed, and held, respectively, that, unless bad-faith enforcement or other special circumstances are demonstrated, principles of equity, comity, and federalism preclude issuance of a federal injunction restraining enforcement of the criminal statute and, in all but unusual circumstances, a declaratory judgment upon the constitutionality of the statute. This case presents the important question reserved in whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of bad-faith enforcement or other special circumstances has not been made. Petitioner, and others, filed a complaint in the District Court for the Northern District of Georgia, invoking the Civil Rights Act of 1871, 42 U.S. C. 1983, and its jurisdictional implementation, 28 U.S. C. 1343. The complaint requested a declaratory judgment pursuant to 28 U.S. C. 2201-2202, that Ga. Code Ann. 26-1503 [1] was being applied in violation of petitioner's *455 First and Fourteenth Amendment rights, and an injunction restraining respondentsthe solicitor of the Civil and Criminal Court of DeKalb County, the chief of the DeKalb County Police, the owner of the North DeKalb Shopping Center, and the manager of that shopping center from enforcing the statute so as to interfere with petitioner's constitutionally protected activities. The parties stipulated to the relevant facts: On October 8, 1970, while petitioner and other individuals were distributing handbills protesting American involvement in Vietnam on an exterior sidewalk of the North DeKalb Shopping Center, shopping center employees asked them to stop handbilling and leave.[2] They declined to do so, and police officers were summoned. The officers told them that they would be arrested if they did not stop handbilling. The group then left to avoid arrest. Two days later petitioner and a companion returned to the shopping center and again began handbilling. The manager of the center called the police, and petitioner and his companion were once again told that failure to stop their handbilling would result in their arrests. Petitioner left to avoid arrest. His companion stayed, however, continued *456 handbilling, and was arrested and subsequently arraigned on a charge of criminal trespass in violation of 26-1503.[3] Petitioner alleged in his complaint that, although he desired to return to the shopping center to distribute handbills, he had not done so because of his concern that he, too, would be arrested for violation of 26-1503; the parties stipulated that, if petitioner returned and refused upon request to stop handbilling, a warrant would be sworn out |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the Georgia statute.[4] After hearing, the District Court denied all relief and dismissed the action, finding that "no meaningful contention can be made that the state has [acted] or will in the future act in bad faith," and therefore "the rudiments of an active controversy between the parties [are] lacking." Petitioner appealed[5] only from the denial of declaratory relief.[6] The Court of Appeals for the Fifth Circuit, one judge concurring in the result, affirmed the District Court's *457 judgment refusing declaratory The court recognized that the holdings of and were expressly limited to situations where state prosecutions were pending when the federal action commenced, but was of the view that "made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment and such test must be applied to a request for injunctive relief against threatened state court criminal prosecution" as well as against a pending prosecution; and, furthermore, since the opinion in reasoned that declaratory relief would normally disrupt the state criminal justice system in the manner of injunctive relief, it followed that "the same test of bad *458 faith harassment is prerequisite for declaratory relief in a threatened prosecution." A petition for rehearing en banc was denied, three judges dissenting.[8] We granted certiorari, and now reverse. I At the threshold we must consider whether petitioner presents an "actual controversy," a requirement imposed by Art. III of the Constitution and the express terms of the Federal Declaratory Judgment Act, 28 U.S. C. 2201.[9] *459 Unlike three of the appellees in petitioner has alleged threats of prosecution that cannot be characterized as "imaginary or speculative," He has been twice warned to stop handbilling that he claims is constitutionally protected and has been told by the police that if he again handbills at the shopping center and disobeys a warning to stop he will likely be prosecuted. The prosecution of petitioner's handbilling companion is ample demonstration that petitioner's concern with arrest has not been "chimerical," In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights. See, e. g., Moreover, petitioner's challenge is to those specific provisions of state law which have provided the basis for threats of criminal prosecution against him. Cf. ; Nonetheless, there remains a question as to the continuing existence of a live and acute controversy that must be resolved |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | of a live and acute controversy that must be resolved on the remand we order today.[10] In the appellee sought a declaratory judgment that a state criminal statute prohibiting the distribution of anonymous election-campaign literature was unconstitutional. The appellee's complaint had expressed a desire to distribute handbills during the forthcoming re-election campaign of a Congressman, but it was later learned that the Congressman *460 had retired from the House of Representatives to become a New York Supreme Court Justice. In that circumstance, we found no extant controversy, since the record revealed that appellee's sole target of distribution had been the Congressman and there was no immediate prospect of the Congressman's again becoming a candidate for public office. Here, petitioner's complaint indicates that his handbilling activities were directed "against the War in Vietnam and the United States' foreign policy in Southeast Asia." Since we cannot ignore the recent developments reducing the Nation's involvement in that part of the world, it will be for the District Court on remand to determine if subsequent events have so altered petitioner's desire to engage in handbilling at the shopping center that it can no longer be said that this case presents "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty ; see II We now turn to the question of whether the District Court and the Court of Appeals correctly found petitioner's request for declaratory relief inappropriate. Sensitive to principles of equity, comity, and federalism, we recognized in that federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions. We were cognizant that a pending state proceeding, in all but unusual cases, would provide the federal plaintiff with the necessary vehicle for vindicating his constitutional rights, and, in that circumstance, the restraining of an ongoing prosecution would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility, *461 equally with the federal courts "to guard, enforce, and protect every right granted or secured by the Constitution of the United States" In the Court also found that the same principles ordinarily would be flouted by issuance of a federal declaratory judgment when a state proceeding was pending, since the intrusive effect of declaratory relief "will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid."[11] We therefore held in Samuels that, "in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment" Neither Younger nor Samuels, however, decided the question whether federal intervention might be permissible in the absence of a pending state prosecution. In Younger, the Court said: "We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun." See also ; Similarly, in the Court stated: "We, of course, express no views on the propriety *462 of declaratory relief when no state proceeding is pending at the time the federal suit is begun." 401 U.S., See also ; These reservations anticipated the Court's recognition that the relevant principles of equity, comity, and federalism "have little force in the absence of a pending state proceeding." Lake Carriers' When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding. Cf. When no state proceeding is pending and thus considerations of equity, comity, and federalism have little vitality, the propriety of granting federal declaratory relief may properly be considered independently of a request for injunctive relief. Here, the Court of Appeals held that, because injunctive relief would not be appropriate since petitioner failed to demonstrate irreparable injurya traditional prerequisite to *463 injunctive relief, e. g., it followed that declaratory relief was also inappropriate. Even if the Court of Appeals correctly viewed injunctive relief as inappropriatea question we need not reach today since petitioner has abandoned his request for that remedy, see n. 6 [12] the court erred in treating the requests for injunctive and declaratory relief as a single issue. "[W]hen no state prosecution is pending and the only question is whether declaratory relief is appropriate[,] the congressional scheme that makes the federal courts the primary guardians |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance." The subject matter jurisdiction of the lower federal courts was greatly expanded in the wake of the Civil War. A pervasive sense of nationalism led to enactment of the Civil Rights Act of 1871, empowering the *464 lower federal courts to determine the constitutionality of actions, taken by persons under color of state law, allegedly depriving other individuals of rights guaranteed by the Constitution and federal law, see 42 U.S. C. 1983, 28 U.S. C. 1343 (3).[13] Four years later, in the Judiciary Act of March 3, 1875, Congress conferred upon the lower federal courts, for but the second time in their nearly century-old history, general federal-question jurisdiction subject only to a jurisdictional-amount requirement, see 28 U.S. C. 1331.[14] With this latter enactment, the lower federal courts "ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." F. Frankfurter & J. Landis, The Business of the Supreme Court 65 (1928)[15] These two statutes, together with the Court's decision in Ex parte Young, holding that state officials who threaten to enforce an unconstitutional state statute may be enjoined by a federal court of equity and that a federal court may, in appropriate circumstances, enjoin *465 future state criminal prosecutions under the unconstitutional Acthave "established the modern framework for federal protection of constitutional rights from state interference." A "storm of controversy" raged in the wake of Ex parte Young, focusing principally on the power of a single federal judge to grant ex parte interlocutory injunctions against the enforcement of state statutes, H. Hart & H. Wechsler, The Federal Courts and the Federal System 967 ; see generally ; Hutcheson, A Case for Three Judges, This uproar was only partially quelled by Congress' passage of legislation, requiring the convening of a three-judge district court[16] before a preliminary injunction against enforcement of a state statute could issue, and providing for direct appeal to this Court from a decision granting or denying such relief.[17] See 28 *466 U. S. C. 22, 1253. From a State's viewpoint the granting of injunctive reliefeven by these courts of special dignity"rather clumsily" crippled state enforcement of its statutes pending further review, see H. R. Rep. No. 288, 70th Cong., 1st Sess., 2 (1928); |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | R. Rep. No. 288, 70th Cong., 1st Sess., 2 (1928); H. R. Rep. No. 94, 71st Cong., 2d Sess., 2 (1929); H. R. Rep. No. 627, 72d Cong., 1st Sess., 2 (1932). Furthermore, plaintiffs were dissatisfied with this method of testing the constitutionality of state statutes, since it placed upon them the burden of demonstrating the traditional prerequisites to equitable reliefmost importantly, irreparable injury. See, e. g., To dispel these difficulties, Congress in 1934 enacted the Declaratory Judgment Act, 28 U.S. C. 2201-2202. That Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction and to be utilized to test the constitutionality of state criminal statutes in cases where injunctive relief would be unavailable is amply evidenced by the legislative history of the Act, traced in full detail in The highlights of that history, particularly pertinent to our inquiry today, emphasize that: "[I]n 1934, without expanding or reducing the subject matter jurisdiction of the federal courts, or in any way diminishing the continuing vitality of Ex parte Young with respect to federal injunctions, Congress empowered the federal courts to grant a new remedy, the declaratory judgment. *467 "The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy. Of particular significance on the question before us, the Senate report [S. Rep. No. 1005, 73d Cong., 2d Sess. ] makes it even clearer that the declaratory judgment was designed to be available to test state criminal statutes in circumstances where an injunction would not be appropriate. "Much of the hostility to federal injunctions referred to in the Senate report was hostility to their use against state officials seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U.S. C. 1342, and the Tax Injunction Act of 1937, 28 U.S. C. 1341. The Federal Declaratory Judgment Act was intended to provide an alternative to injunctions against state officials, except where there was a federal policy against federal adjudication of the class of litigation altogether. Moreover, the Senate report's clear implication that declaratory relief would have been appropriate in and Village of both cases involving federal adjudication of the constitutionality of a state statute carrying criminal penalties, and the report's quotation from Terrace v. Thompson, which also involved anticipatory federal adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | would be used by the federal courts to test the constitutionality *468 of state criminal statutes." -112. 115.[18] It was this history that formed the backdrop to our decision in where a state criminal statute was attacked on grounds of unconstitutional overbreadth and no state prosecution was pending against the federal plaintiff. There, we found error in a three-judge district court's considering, as a single question, the propriety of granting injunctive and declaratory relief. Although we noted that injunctive relief might well be unavailable under principles of equity jurisprudence canvassed in we held that "a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction." Only one year ago, we *469 reaffirmed the holding in and In those two cases, we declined to decide whether the District Courts had properly denied to the federal plaintiffs, against whom no prosecutions were pending, injunctive relief restraining enforcement of the Texas and Georgia criminal abortion statutes; instead, we affirmed the issuance of declaratory judgments of unconstitutionality, anticipating that these would be given effect by state authorities. We said: "The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. ;" See The "different considerations" entering into a decision whether to grant declaratory relief have their origins in the preceding historical summary. First, as Congress recognized in 1934, a declaratory judgment will have a less intrusive effect on the administration of state criminal laws. As was observed in -126 : "Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in totothat is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroadthat is, incapable of being constitutionally applied to the full extent of its purport. In either case, a federal declaration of unconstitutionality reflects the *470 opinion of the federal court that the statute cannot be fully enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that if the statute is narrowly construed by the state courts it will not be incapable of constitutional applications. Accordingly, the declaration does not necessarily |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | incapable of constitutional applications. Accordingly, the declaration does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a federal court declares the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the federal court decision, to bring a prosecution under the statute if he reasonably believes that the defendant's conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. Even where a declaration of unconstitutionality is not reviewed by this Court, the declaration may still be able to cut down the deterrent effect of an unconstitutional state statute. The persuasive force of the court's opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew. Finally, the federal court judgment may have some res judicata effect, though this point is not free from difficulty and the governing rules remain to be developed with *471 a view to the proper workings of a federal system. What is clear, however, is that even though a declaratory judgment has `the force and effect of a final judgment,' 28 U.S. C. 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt."[19] (Footnote omitted.) Second, engrafting upon the Declaratory Judgment Act a requirement that all of the traditional equitable prerequisites to the issuance of an injunction be satisfied before the issuance of a declaratory judgment is considered would defy Congress' intent to make declaratory relief available in cases where an injunction would be inappropriate. "Were the law to be that a plaintiff could not obtain a declaratory judgment that a local ordinance was unconstitutional when no state prosecution is pending unless he could allege and prove circumstances justifying a federal injunction of an existing state prosecution, the Federal Declaratory Judgment Act would have been pro tanto repealed." See Thus, the Court of Appeals was in error when it ruled that a failure to demonstrate irreparable injurya traditional prerequisite to injunctive relief, *472 having no equivalent in the law of declaratory judgments, see Aetna Life Ins. ; Nashville, C. & St. L. R. precluded the |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | Ins. ; Nashville, C. & St. L. R. precluded the granting of declaratory relief. The only occasions where this Court has disregarded these "different considerations" and found that a preclusion of injunctive relief inevitably led to a denial of declaratory relief have been cases in which principles of federalism militated altogether against federal intervention in a class of adjudications. See Great Lakes ;[20], In the instant case, principles of federalism not only do not preclude federal intervention, they compel it. Requiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head. When federal claims are premised on 42 U.S. C. 1983 and 28 U.S. C. 1343 (3)as they are herewe have not required exhaustion of state judicial or administrative remedies, *473 recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights. See, e. g., ; But exhaustion of state remedies is precisely what would be required if both federal injunctive and declaratory relief were unavailable in a case where no state prosecution had been commenced. III Respondents, however, relying principally upon our decision in argue that, although it may be appropriate to issue a declaratory judgment when no state criminal proceeding is pending and the attack is upon the facial validity of a state criminal statute, such a step would be improper where, as here, the attack is merely upon the constitutionality of the statute as applied, since the State's interest in unencumbered enforcement of its laws outweighs the minimal federal interest in protecting the constitutional rights of only a single individual. We reject the argument. In the appellants sought a declaratory judgment that a Mississippi anti-picketing law was an overly broad and vague regulation of protected expression and an injunction restraining pending prosecutions against them for violations of the statute. We agreed with the District Court that the statute was not overly broad or vague and that nothing in the record supported appellants' assertion that they were being prosecuted in bad faith. In that circumstance, we held that "[t]he mere possibility of erroneous application of the statute does not amount `to the irreparable injury necessary to justify a disruption of orderly state proceedings.'. The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to *474 escape the finding that the State had no expectation of securing valid convictions." Our holding in Cameron was thus that the state courts in which prosecutions were |
Justice Brennan | 1,974 | 13 | majority | Steffel v. Thompson | https://www.courtlistener.com/opinion/108985/steffel-v-thompson/ | was thus that the state courts in which prosecutions were already pending would have to be given the first opportunity to correct any misapplication of the state criminal laws; Cameron is plainly not authority for the proposition that, in the absence of a pending state proceeding, a federal plaintiff may not seek a declaratory judgment that the state statute is being applied in violation of his constitutional rights. Indeed, the State's concern with potential interference in the administration of its criminal laws is of lesser dimension when an attack is made upon the constitutionality of a state statute as applied. A declaratory judgment of a lower federal court that a state statute is invalid in totoand therefore incapable of any valid applicationor is overbroad or vagueand therefore no person can properly be convicted under the statute until it is given a narrowing or clarifying construction, see, e. g., United ; will likely have a more significant potential for disruption of state enforcement policies than a declaration specifying a limited number of impermissible applications of the statute. While the federal interest may be greater when a state statute is attacked on its face, since there exists the potential for eliminating any broad-ranging deterrent effect on would-be actors, see we do not find this consideration controlling. The solitary individual who suffers a deprivation of his constitutional rights is no less deserving of redress than one who suffers together with others.[21] *475 We therefore hold that, regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.[22] The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. MR. |
Justice Marshall | 1,974 | 15 | majority | Curtis v. Loether | https://www.courtlistener.com/opinion/108968/curtis-v-loether/ | Section 82 of the Civil Rights Act of 968, 42 U.S. C. 362, authorizes private plaintiffs to bring civil actions to redress violations of Title VIII, the fair housing provisions of the Act, and provides that "[t]he court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff *90 actual damages and not more than $,000 punitive damages, together with court costs and reasonable attorney fees" The question presented in this case is whether the Civil Rights Act or the Seventh Amendment requires a jury trial upon demand by one of the parties in an action for damages and injunctive relief under this section. Petitioner, a Negro woman, brought this action under 82, claiming that respondents, who are white, had refused to rent an apartment to her because of her race, in violation of 804 (a) of the Act, 42 U.S. C. 3604 (a). In her complaint she sought only injunctive relief and punitive damages; a claim for compensatory damages was later added.[] After an evidentiary hearing, the District Court granted preliminary injunctive relief, enjoining the respondents from renting the apartment in question to anyone else pending the trial on the merits. This injunction was dissolved some five months later with the petitioner's consent, after she had finally obtained other housing, and the case went to trial on the issues of actual and punitive damages. Respondents made a timely demand for jury trial in their answer. The District Court, however, held that *9 jury trial was neither authorized by Title VIII nor required by the Seventh Amendment and denied the jury request. After trial on the merits, the District Judge found that respondents had in fact discriminated against petitioner on account of her race. Although he found no actual damages, see n. he awarded $250 in punitive damages, denying petitioner's request for attorney's fees and court costs. The Court of Appeals reversed on the jury trial issue. 467 F.2d 0 (CA7 972). After an extended analysis, the court concluded essentially that the Seventh Amendment gave respondents the right to a jury trial in this action, and therefore interpreted the statute to authorize jury trials so as to eliminate any question of its constitutionality. In view of the importance of the jury trial issue in the administration and enforcement of Title VIII and the diversity of views in the lower courts on the question,[2] we granted certiorari, 42 U.S. 937 (973).[3] We affirm. The legislative history on the jury trial question is sparse, and what little |
Justice Marshall | 1,974 | 15 | majority | Curtis v. Loether | https://www.courtlistener.com/opinion/108968/curtis-v-loether/ | on the jury trial question is sparse, and what little is available is ambiguous. There seems to be some indication that supporters of Title VIII were concerned that the possibility of racial prejudice on juries might reduce the effectiveness of civil *92 rights damages actions.[4] On the other hand, one bit of testimony during committee hearings indicates an awareness that jury trials would have to be afforded in damages actions under Title VIII.[5] Both petitioner and respondents have presented plausible arguments from the wording and construction of 82. We see no point to giving extended consideration to these arguments, however, for we think it is clear that the Seventh Amendment entitles either party to demand a jury trial in an action for damages in the federal courts under 82.[6] The Seventh Amendment provides that "[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." *93 Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 79, it has long been settled that the right extends beyond the common-law forms of action recognized at that time. Mr. Justice Story established the basic principle in 830: "The phrase `common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. By common law, [the Framers of the Amendment] meant not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal rights." (830) Petitioner nevertheless argues that the Amendment is inapplicable to new causes of action created by congressional enactment. As the Court of Appeals observed, however, we have considered the applicability of the constitutional right to jury trial in actions enforcing statutory rights "as a matter too obvious to be doubted." 467 F.2d, at 4. Although the Court has apparently never discussed the issue at any length, we have often found the Seventh Amendment applicable to causes of action based on statutes. See, e. g., Dairy Queen, (962) ; 23 U.S. 03, 5 (909) ; cf. (96) and the *94 discussion of Fleitmann in 396 U.S. 53,[7] Whatever doubt may have existed should now be dispelled. The Seventh Amendment does |
Justice Marshall | 1,974 | 15 | majority | Curtis v. Loether | https://www.courtlistener.com/opinion/108968/curtis-v-loether/ | have existed should now be dispelled. The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law. 30 U.S. (937), relied on by petitioner, lends no support to her statutory-rights argument. The Court there upheld the award of backpay without jury trial in an NLRB unfair labor practice proceeding, rejecting a Seventh Amendment claim on the ground that the case involved a "statutory proceeding" and "not a suit at common law or in the nature of such a suit." Jones & Laughlin merely stands for the proposition that the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication[8] and would substantially interfere with the NLRB's role in the statutory scheme. Katchen *95 v. Landy, (966), also relied upon by petitioner, is to like effect. There the Court upheld, over a Seventh Amendment challenge, the Bankruptcy Act's grant of summary jurisdiction to the bankruptcy court over the trustee's action to compel a claimant to surrender a voidable preference; the Court recognized that a bankruptcy court has been traditionally viewed as a court of equity, and that jury trials would "dismember" the statutory scheme of the Bankruptcy Act. See also Guthrie National 73 U.S. 528 (899). These cases uphold congressional power to entrust enforcement of statutory rights to an administrative process or specialized court of equity free from the strictures of the Seventh Amendment. But when Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.[9] We think it is clear that a damages action under 82 is an action to enforce "legal rights" within the meaning of our Seventh Amendment decisions. See, e. g., ; Dairy Queen, at 476-. A damages action under the statute sounds basically in tortthe statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach. As the Court of Appeals noted, this cause of action is analogous to a number of tort actions recognized at common law.[0]*96 More important, the relief sought hereactual and punitive damagesis the traditional form of relief offered in the courts of law.[] We need not, and do not, |
Justice Marshall | 1,974 | 15 | majority | Curtis v. Loether | https://www.courtlistener.com/opinion/108968/curtis-v-loether/ | the courts of law.[] We need not, and do not, go so far as to say that any award of monetary relief must necessarily be "legal" relief. See, e. g., 36 U.S. 288 (960); (946).[2] A comparison of Title VIII with Title VII of the Civil Rights Act of 964, where the courts of appeals have held that jury trial is not required in an action for reinstatement and backpay,[3] is *97 instructive, although we of course express no view on the jury trial issue in that context. In Title VII cases the courts of appeals have characterized backpay as an integral part of an equitable remedy, a form of restitution. But the statutory language on which this characterization is based "[T]he court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay or any other equitable relief as the court deems appropriate," 42 U.S. C. 2000e-5 (g) ( ed., Supp. II) contrasts sharply with 82's simple authorization of an action for actual and punitive damages. In Title VII cases, also, the courts have relied on the fact that the decision whether to award backpay is committed to the discretion of the trial judge. There is no comparable discretion here: if a plaintiff proves unlawful discrimination and actual damages, he is entitled to judgment for that amount. Nor is there any sense in which the award here can be viewed as requiring the defendant to disgorge funds wrongfully withheld from the plaintiff. Whatever may be the merit of the "equitable" characterization in Title VII cases, there is surely no basis for characterizing the award of compensatory and punitive damages here as equitable relief.[4] *98 We are not oblivious to the force of petitioner's policy arguments. Jury trials may delay to some extent the disposition of Title VIII damages actions. But Title VIII actions seeking only equitable relief will be unaffected, and preliminary injunctive relief remains available without a jury trial even in damages actions. Dairy Queen, n. 20. Moreover, the statutory requirement of expedition of 82 actions, 42 U.S. C. 364, applies equally to jury and non-jury trials. We recognize, too, the possibility that jury prejudice may deprive a victim of discrimination of the verdict to which he or she is entitled. Of course, the trial judge's power to direct a verdict, to grant judgment notwithstanding the verdict, or to grant a new trial provides substantial protection against this risk, and respondents' |
Justice Marshall | 1,978 | 15 | dissenting | United States v. Ceccolini | https://www.courtlistener.com/opinion/109816/united-states-v-ceccolini/ | While "reaffirm[ing]" the holding of Wong that verbal evidence, like *286 physical evidence, may be "fruit of the poisonous tree," the Court today "significantly qualif[ies]" Wong Sun's further conclusion, that no "`logical distinction'" can be drawn between verbal and physical evidence for purposes of the exclusionary rule. Ante, at 275. In my view, the distinction that the Court attempts to draw cannot withstand close analysis. To extend "a time-worn metaphor," I do not believe that the same tree, having its roots in an unconstitutional search or seizure, can bear two different kinds of fruit, with one kind less susceptible than the other of exclusion on Fourth Amendment grounds. I therefore dissent. The Court correctly states the question before us: whether the connection between the police officer's concededly unconstitutional search and Hennessey's disputed testimony was "so attenuated as to dissipate the taint," See ante, at 274. In resolving questions of attenuation, courts typically scrutinize the facts of the individual case, with particular attention to such matters as the "temporal proximity" of the official illegality and the discovery of the evidence, "the presence of intervening circumstances," and "the purpose and flagrancy of the official misconduct." The Court retains this general framework, but states that "[a]ttenuation analysis" should be "concerned with the differences between live-witness testimony and inanimate evidence." Ante, at 278-279. The differences noted by the Court, however, have to a large extent already been accommodated by current doctrine. Where they have not been so accommodated, it is because the differences asserted are either illusory or of no relevance to the issue of attenuation. One difference mentioned by the Court is that witnesses, unlike inanimate objects, "can, and often do, come forward and offer evidence entirely of their own volition." Ante, at 276. Recognition of this obvious fact does nothing to advance *287 the attenuation inquiry. We long ago held that, if knowledge of evidence is gained from a source independent of police illegality, the evidence should be admitted. Silverthorne Lumber This "independent source" rule would plainly apply to a witness whose identity is discovered in an illegal search but who later comes to the police for reasons unrelated to the official misconduct. In the instant case, however, as the Court recognizes, ante, at 273, there is a "`straight and uninterrupted'" road between the illegal search and the disputed testimony. Even where the road is uninterrupted, in some cases the Government may be able to show that the illegally discovered evidence would inevitably have come to light in the normal course of a legal police investigation. Assuming such evidence is admissiblea proposition |
Justice Marshall | 1,978 | 15 | dissenting | United States v. Ceccolini | https://www.courtlistener.com/opinion/109816/united-states-v-ceccolini/ | a legal police investigation. Assuming such evidence is admissiblea proposition that has been questioned, this "inevitable discovery" rule would apply to admit the testimony of a witness who, in the absence of police misconduct, would have come forward "entirely of [his or her] own volition." Again, however, no such situation is presented by this case, since the Court accepts the findings of the two lower courts that Hennessey's testimony would not inevitably have been discovered. Ante, at 273. Both the independent-source and inevitable-discovery rules, moreover, can apply to physical evidence as well as to verbal evidence. The police may show, for example, that they learned from an independent source, or would inevitably have discovered through legal means, the location of an object that they also knew about as a result of illegal police activity. It may be that verbal evidence is more likely to have an independent source, because live witnesses can indeed come forward of their own volition, but this simply underscores the degree to which the Court's approach involves a form of judicial "double counting." The Court would apparently first *288 determine whether the evidence stemmed from an independent source or would inevitably have been discovered; if neither of these rules was found to apply, as here, the Court would still somehow take into account the fact that, as a general proposition (but not in the particular case), witnesses sometimes do come forward of their own volition. The Court makes a related point that "[t]he greater the willingness of the witness to freely testify, the smaller the incentive to conduct an illegal search to discover the witness." Ante, at 276. The somewhat incredible premise of this statement is that the police in fact refrain from illegal behavior in which they would otherwise engage because they know in advance both that a witness will be willing to testify and that he or she "will be discovered by legal means." This reasoning surely reverses the normal sequence of events; the instances must be very few in which a witness' willingness to testify is known before he or she is discovered. In this case, for example, the police did not even know that Hennessey was a potentially valuable witness, much less whether she would be willing to testify, prior to conducting the illegal search. See ante, at 279-280. When the police are certain that a witness "will be discovered by legal means," ante, at 276if they ever can be certain about such a factthey of course have no incentive to find him or her by illegal means, but the same can |
Justice Marshall | 1,978 | 15 | dissenting | United States v. Ceccolini | https://www.courtlistener.com/opinion/109816/united-states-v-ceccolini/ | him or her by illegal means, but the same can be said about physical objects that the police know will be discovered legally. The only other point made by the Court is that exclusion of testimony "perpetually disable[s] a witness from testifying about relevant and material facts." Ante, at 277. The "perpetual. disable[ment]" of which the Court speaks, however, applies as much to physical as to verbal evidence. When excluded, both types of evidence are lost for the duration of the particular trial, despite their being "relevant and material. [and] unrelated to the purpose of the originally *289 illegal search." Moreover, while it is true that "often" the exclusion of testimony will be very costly to society, ante, at 278, at least as often the exclusion of physical evidence such as heroin in a narcotics possession case or business records in a tax casewill be as costly to the same societal interests. But other, more important societal interests, see -600; Wong 371 U. S., have led to the rule, which the Court today reaffirms, that "fruits of the poisonous tree" must be excluded despite their probative value, unless the facts of the case justify a finding of sufficient attenuation. The facts of this case do not justify such a finding. Although, as the Court notes, ante, at 272; see ante, at 279, four months elapsed between the illegal search and the FBI's first contact with Hennessey, the critical evidence was provided at the time and place of the search, when the police officer questioned Hennessey and she identified respondent, ante, at 270. The time that elapsed thereafter is of no more relevance than would be a similar time period between the discovery of an object during an illegal search and its later introduction into evidence at trial. In this case, moreover, there were no intervening circumstances between Hennessey's statement at the time of the search and her later testimony. She did not come to the authorities and ask to testify, despite being a student of police science; an FBI agent had to go to her home and interrogate her. Ante, at 272. Finally, whatever the police officer's purpose in the flower shop on the day of the search, the search itself was not even of arguable legality, as was conceded by the Government below. It is also undisputed that the shop had been under surveillance as part of an ongoing gambling investigation in which the local police force had actively participated; its participation included interception of at least one of respondent's telephone conversations *290 in the very month of the |
Justice Stevens | 1,998 | 16 | dissenting | Brogan v. United States | https://www.courtlistener.com/opinion/118168/brogan-v-united-states/ | Although I agree with nearly all of what Justice Ginsburg has written in her concurrencea concurrence that raises serious concerns that the Court totally ignoresI dissent for the following reasons. *419 The mere fact that a false denial fits within the unqualified language of 18 U.S. C. 1001 is not, in my opinion, a sufficient reason for rejecting a well-settled interpretation of that statute. It is not at all unusual for this Court to conclude that the literal text of a criminal statute is broader than the coverage intended by Congress. See, e. g., ; United ; (stating that lower court interpretation of statute rejected by the Court was "quite obviously the only grammatical reading "); ; ("We are unable to conclude that it was the intention of the Congress in enacting [a Prohibition Act] statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them"); United (holding that although "words `any person or persons,' [in maritime robbery statute] are broad enough to comprehend every human being[,] general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them"). Although the text of 1001, read literally, makes it a crime for an undercover narcotics agent to make a false statement to a drug peddler, I am confident *420 that Congress did not intend any such result. As Justice Ginsburg has explained, it seems equally clear that Congress did not intend to make every "exculpatory no" a felony.[1] Even if that were not clear, I believe the Court should show greater respect for the virtually uniform understanding of the bench and the bar that persisted for decades with, as Justice Ginsburg notes, ante, at 414-415, the approval of this Court as well as the Department of Justice.[2] See Central Bank of Denver, N. ;[3] Or, as Sir Edward Coke phrased it, "it is the common opinion, and communis *421 opinio is of good authoritie in law."[4] 1 E. Coke, Institutes 186a (15th ed. 1794). Accordingly, I respectfully dissent. |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | We consider whether a District of Columbia prohibition on the possession of *27 usable handguns in the home violates the Second Amendment to the Constitution. I The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D.C.Code 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See 22-4504(a), 22-4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, "unloaded and dissembled or bound by a trigger lock or similar device" unless they are located in a place of business or are being used for lawful recreational activities. See 7-2507.02.[1] Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of "functional firearms within the home." App. 5a. The District Court dismissed respondent's complaint, see The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense,[2] reversed, see It held that the Second Amendment protects an individual right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. See at 35, 3-. The Court of Appeals directed the District Court to enter summary judgment for respondent. We granted certiorari. 552 U.S. II We turn first to the meaning of the Second Amendment. A The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free the right of the people to keep and bear Arms, shall not be infringed." In interpreting this text, we are guided by the principle that "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | and phrases were used in their normal and ordinary as distinguished from technical meaning." United ; see also Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation. *27 The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today's dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11-12; post, at 222 (STEVENS, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2-4. The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, "Because a well regulated Militia is necessary to the security of a free the right of the people to keep and bear Arms shall not be infringed." See J. Tiffany, A Treatise on Government and Constitutional Law 55, p. 34 (1); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists' Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N.Y.U.L.Rev. 73, 14-21 Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, "A well regulated Militia, being necessary to the security of a free the right of the people to petition for redress of grievances shall not be infringed." That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause ("The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence." The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 26-26 (P. Potter ed. 171) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42-45[3] "`It is nothing unusual in acts for the enacting part |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | "`It is nothing unusual in acts for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.'" J. Bishop, Commentaries on Written Laws and Their Interpretation 51, p. 4 (2) (quoting Rex v. Marks, 3 East, 157, 165 (K.B.102)). Therefore, while we will begin *270 our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.[4] 1. Operative Clause. a. "Right of the People." The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.[5] Three provisions of the Constitution refer to "the people" in a context other than "rights"the famous preamble ("We the people"), 2 of Article I (providing that "the people" will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with "the s" or "the people"). Those provisions arguably refer to "the people" acting collectivelybut they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right.[6] What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not *271 an unspecified subset. As we said in United : "`[T]he people' seems to have been a term of art employed in select parts of the Constitution [Its uses] sugges[t] that `the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people"those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear Arms" in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as "the people." We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. b. "Keep and bear Arms." We move now from the holder of the right"the people"to the substance of the right: "to keep and bear Arms." Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 1th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined "arms" as "weapons of offence, or armour of defence." 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (12) (reprinted 1) (hereinafter Webster) (similar). The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham's legal dictionary gave as an example of usage: "Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms." See also, e.g., An Act for the trial of Negroes, 7 Del. Laws ch. XLIII, 6, p. 104, in 1 First Laws of the of Delaware 102, 104 (J. Cushing ed.11 (pt. 1)); see generally Although one founding-era thesaurus limited "arms" (as opposed to "weapons") to "instruments of offence generally made use of in war," even that source stated that all firearms constituted "arms." 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (4) (emphasis added). Some have made the argument, bordering on the frivolous, that only those arms in existence in the 1th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., and the Fourth Amendment applies to modern forms of search, e.g., the Second Amendment extends, *272 prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | even those that were not in existence at the time of the founding. We turn to the phrases "keep arms" and "bear arms." Johnson defined "keep" as, most relevantly, "[t]o retain; not to lose," and "[t]o have in custody." Johnson 5. Webster defined it as "[t]o hold; to retain in one's power or possession." No party has apprised us of an idiomatic meaning of "keep Arms." Thus, the most natural reading of "keep Arms" in the Second Amendment is to "have weapons." The phrase "keep arms" was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to "keep Arms" as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to "keep arms in their houses." 4 Commentaries on the Laws of England 55 (176) (hereinafter Blackstone); see also 1 W. & M., c. 15, 4, in 3 Eng. Stat. at Large 422 (16) ("[N]o Papist shall or may have or keep in his House any Arms"); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to "keep" arms in connection with militia service, and they conclude from this that the phrase "keep Arms" has a militia-related connotation. See Brief for Petitioners 16-17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to "file complaints" with federal agencies, the phrase "file complaints" has an employment-related connotation. "Keep arms" was simply a common way of referring to possessing arms, for militiamen and everyone else.[7] *273 At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (6); 2 Oxford English Dictionary 20 (2d ed.1) (hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a particular purposeconfrontation. In in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, Justice GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution's Second Amendment indicate[s]: `wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | or defensive action in a case of conflict with another person.'" (dissenting opinion) ). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms." Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action," it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that "bear arms" had in the 1th century. In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 1th century or the first two decades of the 1th, which enshrined a right of citizens to "bear arms in defense of themselves and the state" or "bear arms in defense of himself and the state."[] It is clear from those formulations that "bear arms" did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution's arms-bearing right, for example, as a recognition of the natural right of defense "of one's person or house"what he called the law of "self preservation." 2 Collected Works of James Wilson 1142, and n. x (citing Pa. Const., Art. IX, 21 (0)); see also T. Walker, Introduction to American Law 1 (137) *274 ("Thus the right of self-defence [is] guaranteed by the [Ohio] constitution"); see also That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.[] These provisions demonstrateagain, in the most analogous linguistic contextthat "bear arms" was not limited to the carrying of arms in a militia. The phrase "bear Arms" also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: "to serve as a soldier, do military service, fight" or "to wage war." See Linguists' Brief 1; post, at 227-22 (STEVENS, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition "against," which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶ 2, used the phrase: "He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country") Every example given by petitioners' amici for the idiomatic meaning of "bear arms" from the founding period either includes the preposition "against" or is not clearly idiomatic. See Linguists' Brief 1-23. Without the preposition, |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | not clearly idiomatic. See Linguists' Brief 1-23. Without the preposition, "bear arms" normally meant (as it continues to mean today) what Justice GINSBURG's opinion in Muscarello said. In any event, the meaning of "bear arms" that petitioners and Justice STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage waran absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque. Petitioners justify their limitation of "bear arms" to the military context by pointing out the unremarkable fact that it was often used in that contextthe same mistake they made with respect to "keep arms." It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners' inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only "bear arms" but also "carry arms," "possess arms," and "have arms"though no one *275 thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 3 Tex. L.Rev. 237, 261 The common references to those "fit to bear arms" in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. See, e.g., 30 Journals of Continental Congress 34-351 (J. Fitzpatrick ed.134). Other legal sources frequently used "bear arms" in nonmilitary contexts.[10] Cunningham's legal dictionary, cited above, gave |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | arms" in nonmilitary contexts.[10] Cunningham's legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs ("Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms"). And if one looks beyond legal sources, "bear arms" was frequently used in nonmilitary contexts. See Cramer & Olson, What Did "Bear Arms" Mean in the Second Amendment?, 6 Georgetown J.L. & Pub. Pol'y online at http://papers.ssrn.com/abstract= 106176 (as visited June 200, and available in Clerk of Court's case file) (identifying numerous nonmilitary uses of "bear arms" from the founding period). Justice STEVENS points to a study by amici supposedly showing that the phrase "bear arms" was most frequently used in the military context. See post, at 22-22, n. ; Linguists' Brief Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study's collection appears to include (who knows how many times) the idiomatic phrase "bear arms against," which is irrelevant. The amici also dismiss examples such as "`bear arms for the purpose of killing game'" because those uses are "expressly qualified." Linguists' Brief (Justice STEVENS uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 22.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass *276 (except, apparently, in some courses on Linguistics). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that "to bear arms" is not limited to military use.[11] Justice STEVENS places great weight on James Madison's inclusion of a conscientious-objector clause in his original draft of the Second Amendment: "but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." Creating the Bill of Rights 12 (H. |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | service in person." Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds.11) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended "bear Arms" to refer only to military service. See post, at 236. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.[12] In any case, what Justice STEVENS would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoeverso much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though "[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense must sometimes have been almost overwhelming." P. Brock, Pacifism in the United s 35 (16); see M. Hirst, The Quakers in Peace and War 336-33 (123); 3 T. Clarkson, Portraiture of Quakerism 103-104 (3d ed. 107). The Pennsylvania Militia Act of 1757 exempted from service those "scrupling the use of arms"a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders eds. 1) (emphasis added). Thus, the most natural interpretation of Madison's deleted text is that those opposed to carrying weapons for potential violent confrontation would not be "compelled to render military service," in which such carrying would be required.[13] *277 Finally, Justice STEVENS suggests that "keep and bear Arms" was some sort of term of art, presumably akin to "hue and cry" or "cease and desist." (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of "keep arms.") Justice STEVENS believes that the unitary meaning of "keep and bear Arms" is established by the Second Amendment's calling it a "right" (singular) rather than "rights" (plural). See post, at 230-231. There is nothing to this. constitutions of the founding period routinely grouped multiple (related) guarantees under a singular "right," and the First Amendment protects the "right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances." See, e.g., Pa. Declaration of Rights IX, XII, XVI, in 5 Thorpe 303-304; Ohio Const., Arts. VIII, 11, 1 (102), in[14] And even if "keep and bear Arms" were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 170 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as "a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defense." 4 The London Magazine or Gentleman's Monthly Intelligencer 4 (170). In response, another member of Parliament referred to "the right of bearing arms for personal defence," making clear that no special military meaning for "keep and bear arms" was intended in the discussion.[15] c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The *27 Second amendment declares that it shall not be infringed"[16] Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31-53 (14) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 16, p. 76 (11). Under the auspices of the 11 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103-106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." 1 W. & M., c. 2, 7, in 3 Eng. Stat. at Large 441 (16). This right has long been understood to be the predecessor to |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (157); W. Rawle, A View of the Constitution of the United s of America 122 (125) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 21; but see 3 J. Story, Commentaries on the Constitution of the United s 15 (133) (hereinafter Story) (contending that the "right to bear arms" is a "limitatio[n] upon the power of parliament" as well). But it was secured to them as individuals, according to "libertarian political principles," not as members of a fighting force. Schwoerer, Declaration of Rights, at 23; see also ; G. Jellinek, The Declaration of the Rights of Man and of Citizens 4, and n. 7 (101) (reprinted 17). By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 13-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, "the natural right of resistance and self-preservation," and "the right of having and using arms for self-preservation and defence," ; see also 3 (176). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-1, 27 (3d ed. 172); 2 J. de Lolme, The Rise and Progress of the English Constitution 6-7 (174) (A. Stephens ed. 13); W. Blizard, Desultory Reflections on Police 5-60 (175). Thus, the right secured in 16 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual *27 right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 176 said that "[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence." A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 176, in Boston Under Military Rule 7 (O. Dickerson ed.136); see also, e.g., Shippen, Boston Gazette, Jan. 30, 176, in 1 The Writings of Samuel Adams 2 (H. Cushing ed.16). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone's Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the "right of self-preservation" as permitting a citizen to "repe[l] force by force" when "the intervention of society in his behalf, may be too late to prevent an injury." 1 Blackstone's Commentaries 145-146, n. 42 (103) (hereinafter Tucker's Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United s 31-32 (133). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United s v. Williams, U.S. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. 2. Prefatory Clause. The prefatory clause reads: "A well regulated Militia, being necessary to the security of a free" a. "Well-Regulated Militia." In United we explained that "the Militia comprised all males physically capable of acting in concert for the common defense." That definition comports with founding-era sources. See, e.g., Webster ("The militia of a country are the able bodied men organized into companies, regiments and brigades and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations"); The Federalist No. 46, pp. 32, 334 (B. Wright ed.161) (J. Madison) ("near half a million of citizens with arms in |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | Madison) ("near half a million of citizens with arms in their hands"); Letter to Destutt de Tracy (Jan. 26, 111), in The Portable Thomas Jefferson 520, 5 (M. Peterson ed. 175) ("[T]he militia of the that is to say, of every man in it able to bear arms"). Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, cls. 15-16)." Brief for Petitioners 12. Although we agree with petitioners' interpretive assumption that "militia" means the same thing in Article I *200 and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create ("to raise Armies"; "to provide a Navy," Art. I, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to "provide for calling forth the militia," cl. 15; and the power not to create, but to "organiz[e]" itand not to organize "a" militia, which is what one would expect if the militia were to be a federal creation, but to organize "the" militia, connoting a body already in existence, ib cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia." Act of May 2, To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. Finally, the adjective "well-regulated" implies nothing more than the imposition of proper discipline and training. See Johnson 161 ("Regulate": "To adjust by rule or method"); Rawle 121-122; cf. Va. Declaration of Rights 13 (1776), in 7 Thorpe 312, 314 (referring to "a well-regulated militia, composed of the body of the people, trained to arms"). b. "Security of a Free" The phrase "security of a free state" meant "security of |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | The phrase "security of a free state" meant "security of a free polity," not security of each of the several s as the dissent below argued, see and n. 10. Joseph Story wrote in his treatise on the Constitution that "the word `state' is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community." 1 Story 20; see also 3 10 (in reference to the Second Amendment's prefatory clause: "The militia is the natural defence of a free country"). It is true that the term "" elsewhere in the Constitution refers to individual s, but the phrase "security of a free state" and close variations seem to have been terms of art in 1th-century political discourse, meaning a "`free country'" or free polity. See Volokh, "Necessary to the Security of a Free" 3 Notre Dame L.Rev. 1, 5 ; see, e.g., 4 Blackstone 151 (176); Brutus Essay III (Nov. 15, 177), in The Essential Antifederalist 253 (W. Allen & G. Lloyd eds., 2d ed.2002). Moreover, the other instances of "state" in the Constitution are typically accompanied by modifiers making clear that the reference is to the several s"each state," "several states," "any state," "that state," "particular states," "one state," "no state." And the presence of the term "foreign state" in Article I and Article III shows that the word "state" did not have a single meaning in the Constitution. There are many reasons why the militia was thought to be "necessary to the security of a free state." See 3 Story 10. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessaryan argument that Alexander Hamilton made in favor of federal control *201 over the militia. The Federalist No. 2, pp. 226, 227 (B. Wright ed.161) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. 3. Relationship between Prefatory Clause and Operative Clause We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 17 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 177), in 2 The Complete Anti-Federalist 234, 2 (H. Storing ed.11). John Smilie, for example, worried not only that Congress's "command of the militia" could be used to create a "select militia," or to have "no militia at all," but also, as a separate concern, that "[w]hen a select militia is formed; the people in general may be disarmed." 2 Documentary History of the Ratification of the Constitution 50-50 (M. Jensen ed.176) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 17), in The Origin of the Second Amendment 275, 276 (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 17, in ; A Citizen of America, (Oct. 10, 177) in ; Remarks on the Amendments to the federal Constitution, Nov. 7, 17, in It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that rightunlike some other English rightswas codified in a written Constitution. Justice BREYER's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 1, is profoundly mistaken. He bases that assertion solely upon the prologuebut that can only show that self-defense had little to do |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself. Besides ignoring the historical reality that the Second Amendment was not intended to lay down a "novel principl[e]" *202 but rather codified a right "inherited from our English ancestors," 41 L. Ed. petitioners' interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petitioners if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment's guaranteeit does not assure the existence of a "citizens' militia" as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.[17] That is why the first Militia Act's requirement that only whites enroll caused s to amend their militia laws to exclude free blacks. See Siegel, The Federal Government's Power to Enact Color-Conscious Laws, 2 Nw. U.L.Rev. 477, 521-525 Thus, if petitioners are correct, the Second Amendment protects citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people's militia that was the concern of the founding generation. B Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. Four s adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of themPennsylvania and Vermontclearly adopted individual rights unconnected to militia service. Pennsylvania's Declaration of Rights of 1776 said: "That the people have a right to bear arms for the defence of themselves, and the state." XIII, in 5 Thorpe 302, 303 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, 15, in 6 North Carolina also codified a right to bear arms in 1776: "That the people have a right to bear arms, for the defence of the" Declaration of Rights XVII, in This could plausibly be read to support only a right to bear arms in a militiabut that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See 14, 1, 35, in 5 Many colonial statutes required |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | See 14, 1, 35, in 5 Many colonial statutes required individual arms-bearing for public-safety reasonssuch as the 1770 Georgia law that "for the security and defence of this province from internal dangers and insurrections" required those men who qualified for militia duty individually "to carry fire arms" "to places of *203 public worship." 1 Colonial Records of the of Georgia 137-13 (A. Candler ed.111 (pt. 2)) (emphasis added). That broad public-safety understanding was the connotation given to the North Carolina right by that 's Supreme Court in 143. See The 170 Massachusetts Constitution presented another variation on the theme: "The people have a right to keep and to bear arms for the common defence." Pt. First, Art. XVII, in 3 Thorpe 12. Once again, if one gives narrow meaning to the phrase "common defence" this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the 's highest court thought otherwise. Writing for the court in an 125 libel case, Chief Justice Parker wrote: "The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction." (1th-century courts never read "common defence" to limit the use of weapons to militia service). We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other s did not include rights to bear arms in their pre-17 constitutionsalthough in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: "No freeman shall ever be debarred the use of arms [within his own lands or tenements]."[1] 1 The Papers of Thomas Jefferson 344 (J. Boyd ed.150)). Between 17 and 120, nine s adopted Second Amendment analogues. Four of themKentucky, Ohio, Indiana, and Missourireferred to the right of the people to "bear arms in defence of themselves and the" See n. Another three sMississippi, Connecticut, and Alabamaused the even more individualistic phrasing that each citizen has the "right to bear arms in defence of himself and the" See Finally, two sTennessee and Maine used the "common defence" language of Massachusetts. See Tenn. Const., Art. XI, 26 (6), in 6 Thorpe 3414, 34; Me. Const., Art. I, 16 (11), in 3 at 1646, 164. That of the nine state constitutional protections for the right to bear arms enacted immediately after 17 at least |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | right to bear arms enacted immediately after 17 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II-D-2, 1th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. (133). The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on *204 little more than an overreading of the prefatory clause. C Justice STEVENS relies on the drafting history of the Second Amendment the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice STEVENS flatly misreads the historical record. It is true, as Justice STEVENS says, that there was concern that the Federal Government would abolish the institution of the state militia. See post, at 232-233. That concern found expression, however, not in the various Second Amendment precursors proposed in the conventions, but in separate structural provisions that would have given the s concurrent and seemingly nonpre-emptible authority to organize, discipline, and arm the militia when the Federal Government failed to do so. See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates in the Several Conventions on the Adoption of the Federal Constitution 4, 5 (2d ed. 136) (reprinted 141) (North Carolina proposal); see also 2 Documentary Hist. 6 (Pennsylvania minority's proposal). The Second Amendment precursors, by contrast, referred to the individual English right already codified in two (and probably four) constitutions. The Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists' view, unnecessary) individual-rights amendments. The Second Amendment right, protecting only individuals' liberty to keep and carry arms, did nothing to assuage Antifederalists' concerns about federal control of the militia. See, e.g., Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 17, in Young 711, 712. Justice STEVENS thinks it significant that the Virginia, New York, and North Carolina Second Amendment proposals were "embedded within a group of principles that are distinctly military in meaning," such as statements about the danger of standing armies. Post, at 233-234. |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | statements about the danger of standing armies. Post, at 233-234. But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. 6. Other than that erroneous point, Justice STEVENS has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast, New Hampshire's proposal, the Pennsylvania minority's proposal, and Samuel Adams' proposal in Massachusetts unequivocally referred to individual rights, as did two state constitutional provisions at the time. See Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J. Kaminski & G. Saladino eds. 2000) (Samuel Adams' proposal). Justice STEVENS' view thus relies on the proposition, unsupported by any evidence, that different people of the founding period had vastly different conceptions of the right to keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties. D We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 1th century. Before proceeding, *205 however, we take issue with Justice STEVENS' equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court's interpretive task. See post, at 237, n. 2. "Legislative history," of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. "Postenactment legislative history," ib a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do. 1. Post-ratification Commentary Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker's version of Blackstone's Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker's Blackstone 143. In Note D, entitled, "View of the Constitution of the United s," Tucker elaborated on the Second Amendment: "This may be considered as the true palladium of liberty. The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." 1 at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting "keeping a gun or other engine for the destruction of game." Ibid; see also 2 and nn. 40 and 41. He later grouped the right with some of the individual rights included in the First Amendment and said that if "a law be passed by congress, prohibiting" any of those rights, it would "be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused." 1 at App. 357. It is unlikely that Tucker was referring to a person's being "accused" of violating a law making it a crime to bear arms in a state militia.[1] In 125, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the *206 Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: "The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. "The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. "The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." Rawle 121-122.[20] Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. See Rawle clearly differentiated between the people's right to bear arms and their |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | differentiated between the people's right to bear arms and their service in a militia: "In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war." Rawle further said that the Second Amendment right ought not "be abused to the disturbance of the public peace," such as by assembling with other armed individuals "for an unlawful purpose"statements that make no sense if the right does not extend to any individual purpose. Joseph Story published his famous Commentaries on the Constitution of the United s in 133. Justice STEVENS suggests that "[t]here is not so much as a whisper" in Story's explanation of the Second Amendment that favors the individual-rights view. Post, at 0. That is wrong. Story explained that the English Bill of Rights had also included a "right to bear arms," a right that, as we have discussed, had nothing to do with militia service. 3 Story 15. He then equated the English right with the Second Amendment: " 11. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 16, it being declared, `that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.' But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege." (Footnotes omitted.) This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 3 years after Story wrote his Commentaries, "[t]he passage from Story, shows clearly that this right was intended and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights." 13 (171). Story's Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected *207 to militia service. See 3 Story 10, n. 2; 11, n. 3. In addition, in a shorter 140 work Story wrote: "One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia." A Familiar Exposition of the Constitution of the United s 450 (reprinted in 16). Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone's description of the right, wrote that "the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed." A Treatise on the Unconstitutionality of American Slavery 117-11 (1); see also L. Spooner, The Unconstitutionality of Slavery 116 (145) (right enables "personal defence"). In his famous Senate speech about the 156 "Bleeding Kansas" conflict, Charles Sumner proclaimed: "The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that `the right of the people to keep and bear arms shall not be infringed,' the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmedof course, that the fanatics of Slavery, his allies and constituents, may meet no impediment." The Crime Against Kansas, May 1-20, 156, in American Speeches: Political Oratory from the Revolution to the Civil War 606-607 (2006). We have found only one early 1th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militiaand he recognized that the prevailing view was to the contrary. "The provision of the constitution, declaring the right of the people to keep and bear arms, & c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it." B. Oliver, The Rights of an American Citizen 177 (132). 2. Pre-Civil War Case Law The 1th-century cases that interpreted the Second |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | War Case Law The 1th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In 5 L. Ed. 1 (120), this Court held that s have concurrent power over the militia, at least where not preempted by Congress. Agreeing in dissent that s could "organize, discipline, and arm" the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment "may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested." Of course, if the Amendment simply "protect[ed] the right of the people of each of the several s to maintain a well-regulated militia," post, at 222 (STEVENS, J., dissenting), it would have enormous *20 and obvious bearing on the point. But the Court and Story derived the s' power over the militia from the nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely "confirms and illustrates" the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of 13 F. Cas. 40, 50, 52 (CC Pa. 133), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has "a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either." Many early 1th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in holding that the Constitution did not extend to free blacks explained that "numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this and of the United s as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this and upon their right to bear arms." 44 (Gen.Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia.[21] See also 30 (Md.143) (because free blacks were treated as a "dangerous population," "laws have been passed to prevent their migration into this ; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness"). An 12 decision |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | even their religious assemblages with peculiar watchfulness"). An 12 decision by the Supreme Court of Michigan said: "The constitution of the United s also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose." United s v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed.140) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any "unlawful or unjustifiable purpose," but any nonmilitary purpose whatsoever. *20 In 1 Ga. 3, (146), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free Our opinion is, that any law, or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 16, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!" Likewise, in 5 La. Ann. 4, 40 (150), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United s, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations." Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court's 140 decision in The case does not stand for |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | Court's 140 decision in The case does not stand for that broad proposition; in fact, the case does not mention the word "militia" at all, except in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to "bear" arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 16 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to "protect[ion of] the public liberty" and "keep[ing] in awe those in power," at 15. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adoptbut it is not petitioners' reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right "of all the free citizens of the to keep and bear arms for their defence," Simpson, 5 Yer., at ; and 21 years later the court held that the "keep" portion of the state constitutional right included the right to personal self-defense: "[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace." Andrews, 50 Tenn., at 17; see also 3. Post-Civil War Legislation. In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether *0 and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 166- (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 1th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive. Blacks were routinely disarmed by Southern s after the Civil War. Those who opposed these |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | Southern s after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen's Bureau in 166 stated plainly: "[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. Their arms are taken from them by the civil authorities. Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed." H.R. Exec. Doc. No. 70, 3th Cong., 1st Sess., 233, 236. A joint congressional Report decried: "in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United s, which declares that `the right of the people to keep and bear arms shall not be infringed.' The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals." Joint Comm. on Reconstruction, H.R.Rep. No. 30, 3th Cong., 1st Sess., pt. 2, p. 22 (166) (Proposed Circular of Brigadier General R. Saxton). The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 166, assured blacks that "[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves." Halbrook 1. Congress enacted the Freedmen's Bureau Act on July 16, 166. Section 14 stated: "[T]he right to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens without respect to race or color, or previous condition of slavery." -177. The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation "were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense." Cong. Globe, 3th Cong., 1st Sess., 362, 371 (166) (Sen. Davis). |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | Globe, 3th Cong., 1st Sess., 362, 371 (166) (Sen. Davis). Similar discussion attended the passage of the Civil Rights Act of 171 and the Fourteenth Amendment. For example, Representative Butler said of the Act: "Section eight is intended to enforce the well-known constitutional provision guaranteeing *1 the right of the citizen to `keep and bear arms,' and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same." H.R.Rep. No. 37, 41st Cong., 3d Sess., pp. 7- (171). With respect to the proposed Amendment, Senator Pomeroy described as one of the three "indispensable" "safeguards of liberty under the Constitution" a man's "right to bear arms for the defense of himself and family and his homestead." Cong. Globe, 3th Cong., 1st Sess., 112 (166). Representative Nye thought the Fourteenth Amendment unnecessary because "[a]s citizens of the United s [blacks] have equal right to protection, and to keep and bear arms for self-defense." (166). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. 4. Post-Civil War Commentators. Every late-1th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 16 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: "Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms. The alternative to a standing army is `a well-regulated militia,' but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts." That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 0 work, General Principles of Constitutional Law. The Second Amendment, he said, "was adopted with some modification and enlargement from the English Bill of Rights of 16, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people." In a section entitled "The Right in General," he continued: "It might be supposed from the phraseology of this provision that the right to keep and bear arms was |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their *2 efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order." All other post-Civil War 1th-century sources we have found concurred with Cooley. One example from each decade will convey the general flavor: "[The purpose of the Second Amendment is] to secure a well-armed militia. But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms. The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected." J. Pomeroy, An Introduction to the Constitutional Law of the United s 152-153 (16) (hereinafter Pomeroy). "As the Constitution of the United s, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question." 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 173) (hereinafter Kent). "Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a pistol for prudent self-defence." B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (0) (hereinafter Abbott). "The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed." J. Ordronaux, Constitutional Legislation in the United s 1-2 (11). E We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment. United in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. *3 The second amendment means no more than that it shall not be infringed by Congress." 2 U.S., at s, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob's attack, |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | the local militia unit the year before the mob's attack, see C. Lane, The Day Freedom Died 62 We described the right protected by the Second Amendment as "`bearing arms for a lawful purpose'"[22] and said that "the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the s' police power. 2 U.S., at That discussion makes little sense if it is only a right to bear arms in a state militia.[23] 6 S. Ct. 50, 2 L. Ed. 615 (6), held that the right to keep and bear arms was not violated by a law that forbade "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law." at 264-, 6 S. Ct. 50. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that s may not ban such groups. Justice STEVENS presses Presser into service to support his view that the right to bear arms is limited to service in the militia by joining Presser's brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for Justice STEVENS' argument, that later portion deals with the Fourteenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in the militia was relevant. Thus, Justice STEVENS' statement that Presser "suggested that. nothing in the Constitution protected the use of arms outside the context of a militia," post, at 3, is simply wrong. Presser said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations. Justice STEVENS places overwhelming reliance upon this Court's decision in United "[H]undreds of judges," we are told, "have relied on the view of the amendment we endorsed there," post, at 223, and "[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself would prevent most *4 jurists from endorsing such a dramatic upheaval in the law," post, at 2. And what is, according to Justice STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature's power to regulate the nonmilitary |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | does not curtail the legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 223. Nothing so clearly demonstrates the weakness of Justice STEVENS' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 4 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for military purposes" but for "nonmilitary use," post, at 223. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." 307 U.S., at 17, (emphasis added). "Certainly," the Court continued, "it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Beyond that, the opinion provided no explanation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice STEVENS can say again and again that Miller did "not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 5, but the words of the opinion prove otherwise. The most Justice STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United s, O.T.13, No. 66, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Justice STEVENS claims, post, at 5, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The respondent made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United 3 N.Y.U.J.L. & Liberty 4, 65-6 The Government's *5 brief spent two pages discussing English legal sources, concluding "that at least the carrying of weapons without lawful occasion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early English law did not guarantee an unrestricted right to bear arms." Brief for United s, O.T.13, No. 66, at -11. It then went on to rely primarily on the discussion of the English right to bear arms in for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United s, O.T.13, No. 66, at 12-1. The final section of the brief recognized that "some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property," and launched an alternative argument that "weapons which are commonly used by criminals," such as sawed-off shotguns, are not protected. See at 1-21. The Government's Miller brief thus provided scant discussion of the history of the Second Amendmentand the Court was presented with no counterdiscussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U.S., at 17, (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, at 17-12, Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.[] |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | the mighty rock upon which the dissent rests its case.[] We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U.S., at The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." 2 Ore. 35, 36, 614 P.2d 4, (10) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (173)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment *6 does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.[25] We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the s, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment's guarantee of freedom of speech in almost 150 years after the Amendment was ratified, see 23 U.S. and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. 6 S. Ct. 461, 2 L. Ed. 64 (14). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 164, nearly two centuries |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | not addressed by this Court until 164, nearly two centuries after the founding. See New York Times 4 S. Ct. 710, 11 L. Ed. 2d 66 (164). It is demonstrably not true that, as Justice STEVENS claims, post, at 4-5, "for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial." For most of our history the question did not present itself. III Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 1th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 1th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., 5 La. Ann., at 4-40; 1 Ga., at ; see generally 2 Kent *340, n. 2; The American Students' Blackstone 4, n. 11 (G. Chase ed. 4). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession *7 of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[26] We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U.S., at We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." See 4 Blackstone 14-14 (176); 3 B. Wilson, Works of the Honourable James Wilson 7 (104); J. Dunlap, The New-York Justice (115); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 42 (122); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (131); H. Stephen, Summary of the Criminal Law 4 (140); E. Lewis, An Abridgment of the Criminal Law of the United s 64 (147); F. Wharton, A Treatise on the Criminal Law of the United s 726 (152). See also v. Langford, 10 N.C. 31, 33-34 ; O'Neill v. (1); English v. (171); v. Lanier, 71 N.C. 2, 2 It may be objected that if weapons that are |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | 2 It may be objected that if weapons that are most useful in military serviceM-16 rifles and the likemay be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 1th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. IV We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[27] banning from the home * "the most preferred firearm in the nation to `keep' and use for protection of one's home and family," 47 F.3d, at 400, would fail constitutional muster. Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down. In the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at In the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol "publicly or privately, without regard to time or place, or circumstances," 50 Tenn., at 17, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. See also v. |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | not restrict the carrying of long guns. See also v. Reid, (140) It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. We must also address the District's requirement (as applied to respondent's handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: "Except for law enforcement personnel, each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia." D.C.Code 7-2507.02. The nonexistence of a self-defense exception is also suggested by the D.C. Court of Appeals' statement that the statute forbids residents to use firearms to * stop intruders, see 35 A.2d 744, (17).[2] Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement "in such a manner as to forbid the carrying of a firearm within one's home or possessed land without a license." App. 5a. The Court of Appeals did not invalidate the licensing requirement, but held only that the District "may not prevent [a handgun] from being moved throughout one's house." 47 F.3d, at 400. It then ordered the District Court to enter summary judgment "consistent |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | then ordered the District Court to enter summary judgment "consistent with [respondent's] prayer for relief." at Before this Court petitioners have stated that "if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified," by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 5. Respondent conceded at oral argument that he does not "have a problem with licensing" and that the District's law is permissible so long as it is "not enforced in an arbitrary and capricious manner." Tr. of Oral Arg. 74-75. We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement. Justice BREYER has devoted most of his separate dissent to the handgun ban. He says that, even assuming the Second Amendment is a personal guarantee of the right to bear arms, the District's prohibition is valid. He first tries to establish this by founding-era historical precedent, pointing to various restrictive laws in the colonial period. These demonstrate, in his view, that the District's law "imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted." Post, at Of the laws he cites, only one offers even marginal support for his assertion. A 173 Massachusetts law forbade the residents of Boston to "take into" or "receive into" "any Dwelling House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building" loaded firearms, and permitted the seizure of any loaded firearms that "shall be found" there. Act of Mar. 1, 173, ch. 13, 173 Mass. Acts p. 21. That statute's text and its prologue, which makes clear that the purpose of the prohibition was to eliminate the danger to firefighters posed by the "depositing of loaded Arms" in buildings, give reason to doubt that colonial Boston authorities would have enforced that general prohibition against someone who temporarily loaded a firearm to confront an intruder (despite the law's application in that case). In any case, we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home. The other laws Justice BREYER cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | or on the top floor of the home. Post, at 2-250. Nothing about those fire-safety laws undermines *220 our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Justice BREYER points to other founding-era laws that he says "restricted the firing of guns within the city limits to at least some degree" in Boston, Philadelphia and New York. Post, at ). Those laws provide no support for the severe restriction in the present case. The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year's Eve and the first two days of January, and was aimed at preventing the "great Damages frequently done on [those days] by persons going House to House, with Guns and other Firearms and being often intoxicated with Liquor." 5 Colonial Laws of New York 4-6 (14). It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year's Day against such drunken hooligans. The Pennsylvania law to which Justice BREYER refers levied a fine of 5 shillings on one who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the governor. See Act of Aug. 26, 1721, 4, in 3 Stat. at Large 253-254. Given Justice Wilson's explanation that the right to self-defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for self-defense. Justice BREYER cites a Rhode Island law that simply levied a 5-shilling fine on those who fired guns in streets and taverns, a law obviously inapplicable to this case. See An Act for preventing Mischief being done in the town of Newport, or in any other town in this Government, 1, Rhode Island Session Laws. Finally, Justice BREYER points to a Massachusetts law similar to the Pennsylvania law, prohibiting "discharg[ing] any Gun or Pistol charged with Shot or Ball in the Town of Boston." Act of May 2, 1746, ch. X, Acts and Laws of Mass. Bay 20. It is again implausible that this would have been enforced against a citizen acting in self-defense, particularly given its preambulatory reference to "the indiscreet firing of Guns." (emphasis added). A broader point about the laws that Justice BREYER cites: All of them |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | about the laws that Justice BREYER cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.[2] They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a "Do Not Walk" sign in order to flee an attacker, or that the Government would enforce those laws under such circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a *221 gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. See D.C.Code 7-2507.06. Justice BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering "interest-balancing inquiry" that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests." Post, at 252. After an exhaustive discussion of the arguments for and against gun control, Justice BREYER arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of governmenteven the Third Branch of Governmentthe power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or |
Justice Scalia | 2,008 | 9 | majority | District of Columbia v. Heller | https://www.courtlistener.com/opinion/145777/district-of-columbia-v-heller/ | understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of 7 S. Ct. 2205, 53 L. Ed. 2d 6 (177) The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the peoplewhich Justice BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. Justice BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 26-270. But since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United s, U.S. 145, 25 L. Ed. 4 (17), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as *222 does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. * * * We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see at 6-7, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | Federal courts lack competence to rule definitively on the meaning of state legislation, see, e. g., nor may they adjudicate challenges to state measures absent a showing of actual impact on the challenger, see, e. g., The Ninth Circuit, in the case at hand, lost sight of these limitations. The initiating plaintiff, Maria-Kelly F. Yniguez, sought federal-court resolution of a novel question: the compatibility with the Federal Constitution of a 1988 amendment to Arizona's Constitution declaring English "the official language of the State of Arizona""the language of. all government functions and actions." Ariz. Const., Art. XXVIII, 1(1), 1(2). Participants in the federal litigation, proceeding with benefit of the views of the Arizona Supreme Court, expressed diverse opinions on the meaning of the amendment. Yniguez commenced and maintained her suit as an individual, not as a class representative. A state employee at the time she filed her complaint, Yniguez voluntarily left the State's employ in 1990 and did not allege she would seek to return to a public post. Her departure for a position in the private sector made her claim for prospective relief moot. Nevertheless, the Ninth Circuit held that a plea for nominal damages could be read into Yniguez's complaint to save the case, and therefore pressed on to an ultimate decisio A three-judge panel of the Court of Appeals declared Article XXVIII unconstitutional in and a divided en banc court, in adhered to the panel's positio The Ninth Circuit had no warrant to proceed as it d The case had lost the essential elements of a justiciable controversy and should not have been retained for adjudication on the merits by the Court of Appeals. We therefore *49 vacate the Ninth Circuit's judgment, and remand the case to that court with directions that the action be dismissed by the District Court. We express no view on the correct interpretation of Article XXVIII or on the measure's constitutionality. I A 1988 Arizona ballot initiative established English as the official language of the State. Passed on November 8, 1988, by a margin of one percentage point,[1] the measure became effective on December 5 as Arizona State Constitution Article XXVIII. Among key provisions, the Article declares that, with specified exceptions, the State "shall act in English and in no other language." Ariz. Const., Art. XXVIII, 3(1)(a). The enumerated exceptions concern compliance with federal laws, participation in certain educational programs, protection of the rights of criminal defendants and crime victims, and protection of public health or safety. 3(2). In a final provision, Article XXVIII grants standing to any person residing or doing business |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | XXVIII grants standing to any person residing or doing business in the State "to bring suit to enforce th[e] Article" in state court, under such "reasonable limitations" as "[t]he Legislature may enact." 4.[2] Federal-court litigation challenging the constitutionality of Article XXVIII commenced two days after the ballot initiative passed. On November 10, 1988, Maria-Kelly F. Yniguez, then an insurance claims manager in the Arizona Department of Administration's Risk Management Division, sued the State of Arizona in the United States District Court for the District of Arizona. Yniguez invoked 42 U.S. C. *50 1983 as the basis for her suit.[3] Soon after the lawsuit commenced, Yniguez added as defendants, in their individual and official capacities, Arizona Governor Rose Mofford, Arizona Attorney General Robert K. Corbin, and the Director of Arizona's Department of Administration, Catherine Ede Yniguez brought suit as an individual and never sought designation as a class representative. Fluent in English and Spanish, Yniguez was engaged primarily in handling medical malpractice claims against the State. In her daily service to the public, she spoke English to persons who spoke only that language, Spanish to persons who spoke only that language, and a combination of English and Spanish to persons able to communicate in both languages. Record, Doc. No. 62, ¶¶ 8, 13 Yniguez feared that Article XXVIII's instruction to "act in English," 3(1)(a), if read broadly, would govern her job performance "every time she [did] something." See Record, Doc. No. 62, ¶ 10. She believed she would lose her job or face other sanctions if she did not immediately refrain from speaking Spanish while serving the State. See App. 58, ¶ 19 (Second Amended Complaint). Yniguez asserted that Article XXVIII violated the First and Fourteenth Amendments to the United States Constitution and Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d. She requested injunctive and declaratory relief, counsel fees, and "all other relief that the *51 Court deems just and proper under the circumstances." App. 60. All defendants named in Yniguez's complaint moved to dismiss all claims asserted against them.[4] The State of Arizona asserted immunity from suit under the Eleventh Amendment. The individual defendants asserted the absence of a case or controversy because "none of [them] ha[d] threatened [Yniguez] concerning her use of Spanish in the performance of her job duties [or had] ever told her not to use Spanish [at work]." Record, Doc. No. 30, p. 1. The defendants further urged that novel state-law questions concerning the meaning and application of Article XXVIII should be tendered first to the state courts. See[5] Trial on |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | be tendered first to the state courts. See[5] Trial on the merits of Yniguez's complaint, the parties agreed, would be combined with the hearing on her motion for a preliminary injunctio[6] Before the trial occurred, the State Attorney General, on January 24, 1989, released an opinion, No. I89-009, construing Article XXVIII and explaining why he found the measure constitutional. App. 61-76. *52 In Opinion No. I89-009, the Attorney General said it was his obligation to read Article XXVIII "as a whole," in line "with the other portions of the Arizona Constitution" and "with the United States Constitution and federal laws." App. 61. While Article XXVIII requires the performance of "official acts of government" in English, it was the Attorney General's view that government employees remained free to use other languages "to facilitate the delivery of governmental services." Construction of the word "act," as used in Article XXVIII, to mean more than an "official ac[t] of government," the Attorney General asserted, "would raise serious questions" of compatibility with federal and state equal protection guarantees and federal civil rights legislatio[7] On February 9, 1989, two weeks after release of the Attorney General's opinion, the parties filed a statement of stipulated facts, which reported Governor Mofford's opposition to the ballot initiative, her intention nevertheless "to comply with Article XXVIII," and her expectation that "State service employees [would] comply" with the measure. See Record, Doc. No. 62, ¶¶ 35, 36, The stipulation confirmed the view of all parties that "[t]he efficient operation [and administration] of the State is enhanced by permitting State service employees to communicate with citizens of the State in languages other than English where the citizens are not proficient in English." In particular, the parties recognized that "Yniguez'[s] use of a language other *53 than English in the course of her performing government business contributes to the efficient operationand administration of the State." The stipulation referred to the Attorney General's January 24, 1989, opinion, and further recounted that since the passage of Article XXVIII, "none of [Yniguez's] supervisors ha[d] ever told her to change or cease her prior use of Spanish in the performance of her duties,"[8] The District Court heard testimony on two days in February and April 1989, and disposed of the case in an opinion and judgment filed February 6, 1990. Prior to that final decision, the court had dismissed the State of Arizona as a defendant, accepting the State's plea of Eleventh Amendment immunity. See Yniguez's second amended complaint, filed February 23, 1989, accordingly named as defendants only the Governor, the Attorney General, and the Director of |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | only the Governor, the Attorney General, and the Director of the Department of Administratio See App. 55.[9] The District Court determined first that, among the named defendants, only the Governor, in her official capacity, was a proper The Attorney General, the District Court found, had no authority under Arizona law to enforce provisions like Article XXVIII against state 730 F. Supp., -312. The Director and the Governor, *54 on the other hand, did have authority to enforce state laws and rules against state service But nothing in the record, the District Court said, showed that the Director had undertaken or threatened to undertake any action adverse to Yniguez. That left Governor Mofford. The Attorney General "ha[d] formally interpreted Article XXVIII as not imposing any restrictions on Yniguez's continued use of Spanish during the course of her official duties," and indeed all three named defendants Mofford as well as Corbin and Eden, see 0"ha[d] stated on the record that Yniguez may continue to speak Spanish with fear of official retributio" 730 F. Supp., Governor Mofford therefore reiterated that Yniguez faced no actual or threatened injury attributable to any Arizona executive branch officer, and hence presented no genuine case or controversy. See But the District Court singled the stipulations that "Governor Mofford intends to comply with Article XXVIII," and "expects State service employees to comply with Article XXVIII." Record, Doc. No. 62, ¶¶ 35, 36; see 730 F. Supp., If Yniguez proved right and the Governor wrong ab the breadth of Article XXVIII, the District Court concluded, then Yniguez would be vulnerable to the Governor's pledge to enforce compliance with the Article. See Proceeding to the merits, the District Court found Article XXVIII fatally overbroad. The measure, as the District Court read it, was not merely a direction that all official acts be in English, as the Attorney General's opinion maintained; instead, according to the District Court, Article XXVIII imposed a sweeping ban on the use of any language other than English by all of Arizona officialdom, with only limited exceptions. The District Court adverted to the Attorney General's confining construction, but found it unpersuasive. Opinion No. 189-009, the District Court is "merely advisory," not binding on any *55 "More importantly," the District Court concluded, "the Attorney General's interpretation is simply at odds with Article XXVIII's plain language." The view that Article XXVIII's text left no room for a moderate and restrained interpretation led the District Court to decline "to allow the Arizona courts the initial opportunity to determine the scope of Article XXVIII." The District Court ultimately dismissed all parties save |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | Article XXVIII." The District Court ultimately dismissed all parties save Yniguez and Governor Mofford in her official capacity, then declared Article XXVIII unconstitutional as violative of the First and Fourteenth Amendments, but denied Yniguez's request for an injunction because "she ha[d] not established an enforcement threat sufficient to warrant [such] relief." -317. Postjudgment motions followed, sparked by Governor Mofford's announcement that she would not pursue an appeal. See App. 98. The Attorney General renewed his request to certify the pivotal state-law questionthe correct construction of Article XXVIIIto the Arizona Supreme Court. See Record, Doc. No. He also moved to intervene on behalf of the State, pursuant to 28 U.S. C. 2403(b),[10] in order to contest on appeal the District Court's declaration that a provision of Arizona's Constitution violated the Federal Constitutio Record, Doc. Nos. 92, 93. * Two newcomers also appeared in the District Court after judgment: the Arizonans for Official English Committee (AOE) and Robert D. Park, Chairman of AOE. Invoking Rule 24 of the Federal Rules of Civil Procedure, AOE and Park moved to intervene as defendants in order to urge on appeal the constitutionality of Article XXVIII. App. 102. AOE, an unincorporated association, was principal sponsor of the ballot initiative that became Article XXVIII. AOE and Park alleged in support of their intervention motion the interest of AOE members in enforcement of Article XXVIII and Governor Mofford's unwillingness to defend the measure on appeal. Responding to the AOE/Park motion, Governor Mofford confirmed that she did not wish to appeal, but would have no objection to the Attorney General's intervention to pursue an appeal as the State's representative, or to the pursuit of an appeal by any other See Record, Doc. No. Yniguez expressed reservations ab proceeding further. "She ha[d] won [her] suit against her employer" and had "obtained her relief," her counsel noted. Record, Doc. No. 114, p. 18 If the litigation "goes forward," Yniguez's counsel told the District Court, "I guess we do, too," but, counsel added, it might be in Yniguez's "best interest if we stopped it right here." The District Court agreed. In an opinion filed April 3, 1990, the District Court denied all three postjudgment motions. 130 F. R. D. 410. Certification was inappropriate, the District Court ruled, in light of the court's prior rejection of the Attorney General's narrow reading of Article XXVIII. See at 412. As to the Attorney General's intervention application, the District Court that 2403(b) addresses only actions "`to which the State or any agency, officer, or employee thereof is not a ' " See ( 2403(b)). Yniguez's |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | thereof is not a ' " See ( 2403(b)). Yniguez's action did not fit the 2403(b) description, *57 the District Court said, because the State and its officers were the very defendantsthe sole defendants Yniguez's complaint named. Governor Mofford remained a party through the District Court proceedings. If the State lost the opportunity to defend the constitutionality of Article XXVIII on appeal, the District Court reasoned, it was "only because Governor Mofford determine[d] that the state's sovereign interests would be best served by foregoing an appeal." Turning to the AOE/Park intervention motion, the District Court first that the movants had failed to file a pleading "setting forth the[ir] claim or defense," as required by Rule 24(c). But that deficiency was not critical, the District Court sa The insurmountable hurdle was Article III standing. The labor and resources AOE spent to promote the ballot initiative did not suffice to establish standing to sue or defend in a federal tribunal, the District Court held. Nor did Park or any other AOE member qualify for party status, the District Court ruled, for the interests of voters who favored the initiative were too general to meet traditional standing criteria. at 415. In addition, the District Court was satisfied that AOE and Park could not tenably assert practical impairment of their interests stemming from the precedential force of the decisio As nonparticipants in the federal litigation, they would face no issue preclusio And a lower federal-court judgment is not binding on state courts, the District Court noted. Thus, AOE and Park would not be precluded by the federal declaration from pursuing "any future state court proceeding [based on] Article XXVIII." at 415-416. II The Ninth Circuit viewed the matter of standing to appeal differently. In an opinion released July 19, 1991, the Court of Appeals reached these *58 conclusions: AOE and Park met Article III requirements and could proceed as appellants; Arizona's Attorney General, however, having successfully moved in the District Court for his dismissal as a defendant, could not reenter as a party, but would be permitted to present argument regarding the constitutionality of Article XXVIII. The Ninth Circuit reported it would retain jurisdiction over the District Court's decision on the merits, at but did not then address the question whether Article XXVIII's meaning should be certified for definitive resolution by the Arizona Supreme Court. Concerning AOE's standing, the Court of Appeals reasoned that the Arizona Legislature would have standing to defend the constitutionality of a state statute; by analogy, the Ninth Circuit maintained, AOE, as principal sponsor of the ballot initiative, qualified to |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | AOE, as principal sponsor of the ballot initiative, qualified to defend Article XXVIII on appeal. ; see also at 734, 5 ("[W]e hold that AOE has standing in the same way that a legislature might."). AOE Chairman Park also had standing to appeal, according to the Ninth Circuit, because Yniguez "could have had a reasonable expectation that Park (and possibly AOE as well) would bring an enforcement action against her" under 4 of Article XXVIII, which authorizes any person residing in Arizona to sue in state court to enforce the Article. at 734, and 5.[11] *59 Having allowed AOE and Park to serve as appellants, the Court of Appeals held Arizona's Attorney General "judicial[ly] estoppe[d]" from again appearing as a at 738-7; see also at ("[H]aving asked the district court to dismiss him as a party, [the Attorney General] cannot now become one agai").[12] With Governor Mofford choosing not to seek Court of Appeals review, the appeal became one to which neither "[the] State [n]or any agency, officer, or employee thereof [was] a party," the Ninth Circuit so the State's Attorney General could appear pursuant to 28 U.S. C. 2403(b). See[13] But, the Ninth Circuit added, 2403(b) "confers only a limited right," a right pendent to the AOE/Park appeal, "to make an argument on the question of [Article XXVIII's] constitutionality." Prior to the Ninth Circuit's July 1991 opinion, indeed the very day after AOE, Park, and the Arizona Attorney General filed their notices of appeal, a development of prime importance occurred. On April 10, 1990, Yniguez resigned from state employment in order to accept another job. Her resignation *60 apparently became effective on April 25, 1990. Arizona's Attorney General so informed the Ninth Circuit in September 1991, "suggest[ing] that this case may lack a viable plaintiff and, hence, may be moot." Suggestion of Mootness in Nos. 90-46 and 90-81 (CA9), Affidavit and Exh. A. One year later, on September 16, 1992, the Ninth Circuit rejected the mootness suggestio The court's ruling adopted in large part Yniguez's argument opposing a mootness dispositio See App. 1-204 (Appellee Yniguez's Response Regarding Mootness Considerations). "[T]he plaintiff may no longer be affected by the English only provision," the Court of Appeals Nevertheless, the court continued, "[her] constitutional claims may entitle her to an award of nominal " Her complaint did "not expressly request nominal damages," the Ninth Circuit noted, but "it did request `all other relief that the Court deems just and proper under the circumstances.' " at 647, 1; see Thus, the Court of Appeals reasoned, one could regard the District Court's judgment as |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | Appeals reasoned, one could regard the District Court's judgment as including an "implicit denial" of nominal 2. To permit Yniguez and AOE to clarify their positions, the Ninth Circuit determined to return the case to the District Court. There, with the Ninth Circuit's permission, AOE's Chairman Park could file a notice of appeal from the District Court's judgment, following up the Circuit's decision 14 months earlier allowing AOE and Park to intervene. at 647.[14] And next, Yniguez could cross-appeal to place before *61 the Ninth Circuit, explicitly, the issue of nominal at 647, and 2.[15] In line with the Ninth Circuit's instructions, the case file was returned to the District Court on November 5, 1992; AOE and Park filed their second notice of appeal on December 3, App. 206-208, and Yniguez cross-appealed on December 15, App. 209.[16] The Ninth Circuit heard argument on the merits on May 3, After argument, on June 21, the Ninth Circuit allowed Arizonans Against Constitutional Tampering (AACT) and Thomas Espinosa, Chairman of AACT, to intervene as plaintiffs-appellees. App. 14; AACT was the principal opponent of the ballot initiative that became Article XXVIII. In permitting this late intervention, the Court of Appeals noted that "it d[id] not rely on [AACT's] standing as a " The standing of the preargument participants, in the Ninth Circuit's view, sufficed to support a determination on the merits. See In December the Ninth Circuit panel that had superintended the case since 1990 affirmed the judgment declaring Article XXVIII unconstitutional and remanded the case, directing the District Court to award Yniguez nominal *62 Despite the Court of Appeals' July 1991 denial of party status to Arizona, the Ninth Circuit apparently viewed the State as the defendant responsible for any damages, for it noted: "The State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal " at 1243. The Ninth Circuit agreed to rehear the case en banc, and in October by a 6-to-5 vote, the en banc court reinstated the panel opinion with minor alterations. Adopting the District Court's construction of Article XXVIII, the en banc court read the provision to prohibit "`the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in 3(2) of Article XXVIII.' " ( 730 F. Supp., ). Because the court found the "plain language" it rejected the State Attorney General's limiting construction and |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | language" it rejected the State Attorney General's limiting construction and declined to certify the matter to the Arizona Supreme Court, As an additional reason for its refusal to grant the Attorney General's request for certification, the en banc court stated: "The Attorney General never conceded that [Article XXVIII] would be unconstitutional if construed as Yniguez asserts it properly should be." and 14.[17] The Ninth Circuit also pointed to a state-court challenge to the constitutionality of *63 Article XXVIII, Ruiz v. State, No. CV92-19603 In Ruiz, the Ninth Circuit the state court of first instance "dispos[ed] of [the] First Amendment challenge in three paragraphs" and "d[id] nothing to narrow [the provision]." 69 F.3d,[18] After construing Article XXVIII as sweeping in scope, the en banc Court of Appeals condemned the provision as manifestly overbroad, trenching untenably on speech rights of Arizona officials and public See -8. For prevailing in the 1983 action, the court ultimately announced, Yniguez was "entitled to nominal " On remand, the District Court followed the en banc Court of Appeals' order and, on November 3, awarded Yniguez $1 in App. 211. AOE and Park petitioned this Court for a writ of certiorari to the Ninth Circuit.[19] They raised two questions: (1) Does Article XXVIII violate the Free Speech Clause of the First *64 Amendment by "declaring English the official language of the State and requiring English to be used to perform official acts"?; (2) Do public employees have "a Free Speech right to disregard the [State's] official language" and perform official actions in a language other than English? This Court granted the petition and requested the parties to brief as threshold matters (1) the standing of AOE and Park to proceed in this action as defending parties, and (2) Yniguez's continuing satisfaction of the case-or-controversy requirement. 517 U.S. 2 III Article III, 2, of the Constitution confines federal courts to the decision of "Cases" or "Controversies." Standing to sue or defend is an aspect of the case-or-controversy requirement. Northeastern Fla. Chapter, Associated Ge Contractors of ; v.Charles, To qualify as a party with standing to litigate, a person must show, first and foremost, "an invasion of a legally protected interest" that is "concrete and particularized" and "`actual or imminent.' " 0 ). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of -576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess "a direct stake in the come." 476 U. |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | litigant possess "a direct stake in the come." 476 U. S., ). The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. 476 U. S., The decision to seek review "is not to be placed in the *65 hands of `concerned bystanders,' " persons who would seize it "as a `vehicle for the vindication of value interests.' " An intervenor cannot step into the shoes of the original party unless the intervenor independently "fulfills the requirements of Article III." In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasilegislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. See[20] AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated. Cf. Don't Bankrupt Washington AOE also asserts representational or associational standing. An association has standing to sue or defend in such *66 capacity, however, only if its members would have standing in their own right. See Food and Commercial ; The requisite concrete injury to AOE members is not apparent. As nonparties in the District Court, AOE's members were not bound by the judgment for Yniguez. That judgment had slim precedential effect, see[21] and it left AOE entirely free to invoke Article XXVIII, 4, the citizen suit provision, in state court, where AOE could pursue whatever relief state law authorized. Nor do we discern anything flowing from Article XXVIII's citizen suit provisionwhich authorizes suits to enforce Article XXVIII in state courtthat could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal We thus have grave doubts whether AOE and Park have standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | to pursue appellate review. Nevertheless, we need not definitively resolve the issue. Rather, we will follow a path we have taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue. See For purposes of that inquiry, we will assume, arguendo, that AOE and Park had standing to place this case before an appellate tribunal. See at 366 (Stevens, J., dissenting) (Court properly assumed standing, even though that matter raised a serious question, in order to analyze mootness issue). We may resolve the question whether *67 there remains a live case or controversy with respect to Yniguez's claim with first determining whether AOE or Park has standing to appeal because the former question, like the latter, goes to the Article III jurisdiction of this Court and the courts below, not to the merits of the case. Cf. U. S. Bancorp Mortgage IV To qualify as a case fit for federal-court adjudication, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." ) As a state employee subject to Article XXVIII, Yniguez had a viable claim at the set of the litigation in late 1988. We need not consider whether her case lost vitality in January 1989 when the Attorney General released Opinion No. I89-009. That opinion construed Article XXVIII to require the expression of "official acts" in English, but to leave government employees free to use other languages "if reasonably necessary to the fair and effective delivery of services" to the public. See App. 74; ; see also Marston's (19) ("Attorney General opinions are advisory only and are not binding on the This does not mean, however, that citizens may not rely in good faith on Attorney General opinions until the courts have spoke"). Yniguez left her state job in April 1990 to take up employment in the private sector, where her speech was not governed by Article XXVIII. At that point, it became plain that she lacked a still vital claim for prospective relief. Cf. U.S. 77, *68 The Attorney General suggested mootness,[22] but Yniguez resisted, and the Ninth Circuit adopted her proposed method of saving the case. See[23] It was not the court said, that Yniguez "may no longer be affected by the English only provision," for Yniguez had raised in response to the mootness suggestion "[t]he possibility that [she] may seek nominal damages," ; see App. 197-200 (Appellee Yniguez's Response Regarding Mootness Considerations). At that stage of the litigation, however, Yniguez's plea for nominal damages was not the possibility the |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | Yniguez's plea for nominal damages was not the possibility the Ninth Circuit imagined. Yniguez's complaint rested on 42 U.S. C. 1983. See and 3. Although Governor Mofford in her official capacity was the sole defendant against whom the *69 District Court's February 1990 declaratory judgment ran, see the Ninth Circuit held the State answerable for the nominal damages Yniguez requested on appeal. See 69 F.3d, at 8-9 (declaring Yniguez "entitled to nominal damages for prevailing in an action under 42 U.S. C. 1983" and noting that "[t]he State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages"). We have held, however, that 1983 actions do not lie against a State. Thus, the claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent. The barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that 1983 creates no remedy against a State.[24] Furthermore, under the Ninth Circuit's ruling on intervention, the State of Arizona was permitted to participate in the appeal, but not as a 9 F.3d, The Court of Appeals never revised that ruling. To recapitulate, *70 in July 1991, two months prior to the Attorney General's suggestion of mootness, the Court of Appeals rejected the Attorney General's plea for party status, as representative of the State. The Ninth Circuit accorded the Attorney General the "right [under 28 U.S. C. 2403(b)] to argue the constitutionality of Article XXVIII contingent upon AOE and Park's bringing the appeal." at ; see But see (State's 2403(b) right to urge on appeal the constitutionality of its laws is not contingent on participation of other appellants). AOE and Park, however, were the sole participants recognized by the Ninth Circuit as defendants-appellants. The Attorney General "ha[d] asked the district court to dismiss him as a party," the Court of Appeals noted, hence he "cannot now become one agai" 9 F.2d, at While we do not rule on the propriety of the Ninth Circuit's exclusion of the State as a party, we note this lapse in that court's accounting for its decision: The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nevertheless, to an obligation to pay True, Yniguez and the Attorney General took the steps the Ninth Circuit prescribed: Yniguez filed a cross-appeal notice, see ; the Attorney General waived the State's right to assert the Eleventh Amendment as a defense to an award of nominal damages, see |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | as a defense to an award of nominal damages, see 69 F.3d, at 8-9. But the earlier, emphatic Court of Appeals ruling remained in place: The State's intervention, although proper under 2403(b), the Ninth Circuit maintained, gave Arizona no status as a party in the lawsuit. See 9 F.2d,[25] * In advancing cooperation between Yniguez and the Attorney General regarding the request for and agreement to pay nominal damages, the Ninth Circuit did not home in on the federal courts' lack of authority to act in friendly or feigned proceedings. Cf. United States v.Johnson, (13) (absent "a genuine adversary issue between parties," federal court "may not safely proceed to judgment"). It should have been clear to the Court of Appeals that a claim for nominal damages, extracted late in the day from Yniguez's general prayer for relief and asserted solely to avoid otherwise certain mootness, bore close inspectio Cf. On such inspection, the Ninth Circuit might have perceived that Yniguez's plea for nominal damages could not genuinely revive the case.[26] When a civil case becomes moot pending appellate adjudication, "[t]he established practice in the federal system. is to reverse or vacate the judgment below and remand with a direction to dismiss." United States v.Munsingwear, Inc., Vacatur "clears the path for future relitigation" by eliminating a judgment the loser was stopped from opposing on direct review. Vacatur is in order when mootness occurs through happenstancecircumstances not attributable to the partiesor, *72 relevant here, the "unilateral action of the party who prevailed in the lower " U. S. Bancorp Mortgage 513 U. S., 3; cf. 9 As just explained, Yniguez's changed circumstancesher resignation from public sector employment to pursue work in the private sectormooted the case stated in her complaint.[27] We turn next to the effect of that development on the judgments below. Yniguez urges that vacatur ought not occur here. She maintains that the State acquiesced in the Ninth Circuit's judgment and that, in any event, the District Court judgment should not be upset because it was entered before the mooting event occurred and was not properly appealed. See Brief for Respondent Yniguez 23-25. Concerning the Ninth Circuit's judgment, Yniguez argues that the State's Attorney General effectively acquiesced in that court's dispositions when he did not petition for this Court's review. See 4-25; Brief for United States as Amicus Curiae 10-11, and 4 ).[28] We do not agree that this Court is disarmed in the manner suggested. *73 We have taken up the case for consideration on the petition for certiorari filed by AOE and Park. Even if we were to |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | filed by AOE and Park. Even if we were to rule definitively that AOE and Park lack standing, we would have an obligation essentially to search the pleadings on core matters of federal-court adjudicatory authorityto inquire not only into this Court's authority to decide the questions petitioners present, but to consider, also, the authority of the lower courts to proceed. As explained in : "[E]very federal appellate court has a special obligation to `satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. See `And if the record discloses that the lower court was with jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.' United" See also Iron Arrow Honor (vacating judgment below where Court of Appeals had ruled on the merits although case had become moot). In short, we have authority to "make such disposition of the whole case as justice may require." U. S. Bancorp Mortgage 513 U. S., 1 Because the Ninth Circuit refused to stop the adjudication when Yniguez's departure from public employment came to its attention, we set aside the unwarranted en banc Court of Appeals judgment. *74 As to the District Court's judgment, Yniguez stresses that the date of the mooting eventher resignation from state employment effective April 25, 1990was some 2[1]20442 months after the February 6, 1990, decision she seeks to preserve. Governor Mofford was the sole defendant bound by the District Court judgment, and Mofford declined to appeal. Therefore, Yniguez contends, the District Court's judgment should remain untouched. But AOE and Park had an arguable basis for seeking appellate review, and the Attorney General promptly made known his independent interest in defending Article XXVIII against the total demolition declared by the District Court. First, the Attorney General repeated his plea for certification of Article XXVIII to the Arizona Supreme Court. See Record, Doc. No. And if that plea failed, he asked, in his motion to intervene, "to be joined as a defendant so that he may participate in all post-judgment proceedings." Record, Doc. No. 93, p. 2. Although denied party status, the Attorney General had, at a minimum, a right secured by Congress, a right to present argument on appeal "on the question of constitutionality." See 28 U.S. C. 2403(b). He was in the |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | constitutionality." See 28 U.S. C. 2403(b). He was in the process of pursuing that right when the mooting event occurred. We have already recounted the course of proceedings thereafter. First, Yniguez did not tell the Court of Appeals that she had left the State's employ. See 23. When that fact was disclosed to the court by the Attorney General, a dismissal for mootness was suggested, and rejected. A mootness disposition at that point was in order, we have just explained. Such a dismissal would have stopped in midstream the Attorney General's endeavor, premised on 2403(b), to defend the State's law against a declaration of unconstitutionality, and so would have warranted a path-clearing vacatur decree. The State urges that its current plea for vacatur is compelling in view of the extraordinary course of this litigatio *75 See Brief for Respondents State of Arizona et al. 34 ("It would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable judgment, take voluntary action [that] moot[s] the dispute, and then retain the [benefit of the] judgment."). We agree. The "exceptional circumstances" that abound in this case, see U. S. Bancorp Mortgage 513 U. S., 9, and the federalism concern we next consider, lead us to conclude that vacatur down the line is the equitable solutio V In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?[29] When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of that core questio See, e. g., ("[N]ormally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts."); Rescue (17); Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 580-585 Arizona's Attorney General, in addition to releasing his own opinion on the meaning of Article XXVIII, see asked both the District Court and the Court of Appeals to pause before proceeding to judgment; specifically, he asked both federal courts to seek, through the State's certification process, an authoritative construction of the new measure from the Arizona Supreme Court. See and 5, 55, 62-63, and n 17, 18. Certification today covers territory once dominated by a deferral device called "Pullman abstention," after the generative *76 case, Railroad Comm'n of Tex. v. Pullman (11). Designed to avoid federal-court error in deciding state-law questions antecedent to federal constitutional issues, the Pullman mechanism remitted parties to the |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | federal constitutional issues, the Pullman mechanism remitted parties to the state courts for adjudication of the unsettled state-law issues. If settlement of the state-law question did not prove of the case, the parties could return to the federal court for decision of the federal issues. Attractive in theory because it placed state-law questions in courts equipped to rule authoritatively on them, Pullman abstention proved protracted and expensive in practice, for it entailed a full round of litigation in the state court system before any resumption of proceedings in federal See generally 17A C. Wright, A. Miller, & E. Federal Practice and Procedure 4242, 4243 Certification procedure, in contrast, allows a federal court faced with a novel state-law question to put the question directly to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response. See Note, Federal CourtsCertification Before Facial Invalidation: A Return to Federalism, Most States have adopted certification procedures. See generally 17A Wright, Miller, & 4. Arizona's statute, set 5, permits the State's highest court to consider questions certified to it by federal district courts, as well as courts of appeals and this Court. Both lower federal courts in this case refused to invite the aid of the Arizona Supreme Court because they found the language of Article XXVIII "plain," and the Attorney General's limiting construction unpersuasive. See -316; -931.[30] Furthermore, the Ninth *77 Circuit suggested as a proper price for certification a concession by the Attorney General that Article XXVIII "would be unconstitutional if construed as [plaintiff Yniguez] contended it should be." ; see and 14. Finally, the Ninth Circuit acknowledged the pendency of a case similar to Yniguez's in the Arizona court system, but found that litigation no cause for a stay of the federal-court proceedings. See ; -63, and 18 (describing the Ruiz litigation). A more cautious approach was in order. Through certification of novel or unsettled questions of state law for authoritative answers by a State's highest court, a federal court may save "time, energy, and resources and hel[p] build a cooperative judicial federalism." Lehman 1 ; see also It is true, as the Ninth Circuit 69 F.3d, that in our decision certifying questions in Virginia v. American Booksellers Ass, Inc., we noted the State's concession that the statute there challenged would be unconstitutional if construed as plaintiffs contended it should be, at 3-6. But neither in that case nor in any other did we declare such a concession a condition precedent to certificatio The District Court and the Court of Appeals ruled certification primarily |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | District Court and the Court of Appeals ruled certification primarily because they believed Article XXVIII was not fairly subject to a limiting constructio See 730 F. Supp., ); 69 F.3d, The assurance with which the lower courts reached that judgment is all the more puzzling *78 in view of the position the initiative sponsors advanced before this Court on the meaning of Article XXVIII. At oral argument on December 4, counsel for petitioners AOE and Park informed the Court that, in petitioners' view, the Attorney General's reading of the Article was "the correct interpretatio" Tr. of Oral Arg. 6; see The Ninth Circuit found AOE's "explanations as to the initiative's scope confused and selfcontradictory," 12, and we agree that AOE wavered in its statements of position, see, e. g., Brief for Petitioners 15 (AOE may "protect its political and statutory rights against the State and government employees"), 32- (Article XXVIII regulates Yniguez's "language on the job"), 44 ("AOE might sue the State for limiting Art. XXVIII"). Nevertheless, the Court of Appeals understood that the ballot initiative proponents themselves at least "partially endorsed the Attorney General's reading." 12. Given the novelty of the question and its potential importance to the conduct of Arizona's business, plus the views of the Attorney General and those of Article XXVIII's sponsors, the certification requests merited more respectful consideration than they received in the proceedings below. Federal courts, when confronting a challenge to the constitutionality of a federal statute, follow a "cardinal principle": They "will first ascertain whether a construction is fairly possible" that will contain the statute within constitutional bounds. See ; ; 442 U.S. 6, ; Rescue 331 U. S., at 8-9. State courts, when interpreting state statutes, are similarly equipped to apply that cardinal principle. See Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest See Rescue 331 U. S., at "Speculation by a federal court ab the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when the state courts stand willing to address questions of state law on certification from a federal " Blending abstention with certification, the Ninth Circuit found "no unique circumstances in this case militating in favor of certificatio" 69 F.3d, Novel, unsettled questions of state law, however, not "unique circumstances," are necessary before federal courts may avail themselves of state certification procedures.[31] Those procedures do |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | may avail themselves of state certification procedures.[31] Those procedures do not entail the delays, expense, and procedural complexity that generally attend abstention decisions. See Taking advantage of certification made available by a State may "greatly simplif[y]" an ultimate adjudication in federal See The course of Yniguez's case was complex. The complexity might have been avoided had the District Court, more than eight years ago, accepted the certification suggestion made by Arizona's Attorney General. The Arizona Supreme Court was not asked by the District Court or the Court of Appeals to say what Article XXVIII means. But the State's highest court has that very question before it in *80 Ruiz v. Symington, see -63, and 18, the case the Ninth Circuit considered no cause for federal-court hesitatio In Ruiz, which has been stayed pending our decision in this case, see at 63, 18, the Arizona Supreme Court may now rule definitively on the proper construction of Article XXVIII. Once that court has spoken, adjudication of any remaining federal constitutional question may indeed become greatly simplified. * * * For the reasons stated, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with directions that the action be dismissed by the District Court. It is so ordered. APPENDIX TO OPINION OF THE COURT ARTICLE XXVIII. ENGLISH AS THE OFFICIAL LANGUAGE 1. English as the official language; applicability Section 1. (1) The English language is the official language of the State of Arizona. (2) As the official language of this State, the English language is the language of the ballot, the public schools and all government functions and actions. (3)(a) This Article applies to: (i) the legislative, executive and judicial branches of government[,] (ii) all political subdivisions, departments, agencies, organizations, and instrumentalities of this State, including local governments and municipalities, (iii) all statutes, ordinances, rules, orders, programs and policies[,] (iv) all government officials and employees during the performance of government business. *81 (b) As used in this Article, the phrase "This State and all political subdivisions of this State" shall include every entity, person, action or item described in this Section, as appropriate to the circumstances. 2. Requiring this state to preserve, protect and enhance English Section 2. This State and all political subdivisions of this State shall take all reasonable steps to preserve, protect and enhance the role of the English language as the official language of the State of Arizona. 3. Prohibiting this state from using or requiring the use of languages other than English; exceptions Section 3. (1) Except as provided in |
Justice Ginsburg | 1,997 | 5 | majority | Arizonans for Official English v. Arizona | https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/ | than English; exceptions Section 3. (1) Except as provided in Subsection (2): (a) This State and all political subdivisions of this State shall act in English and in no other language. (b) No entity to which this Article applies shall make or enforce a law, order, decree or policy which requires the use of a language other than English. (c) No governmental document shall be valid, effective or enforceable unless it is in the English language. (2) This State and all political subdivisions of this State may act in a language other than English under any of the following circumstances: (a) to assist students who are not proficient in the English language, to the extent necessary to comply with federal law, by giving educational instruction in a language other than English to provide as rapid as possible a transition to English. (b) to comply with other federal laws. (c) to teach a student a foreign language as a part of a required or voluntary educational curriculum. (d) to protect public health or safety. (e) to protect the rights of criminal defendants or victims of crime. * 4. Enforcement; standing Section 4. A person who resides in or does business in this State shall have standing to bring suit to enforce this Article in a court of record of the State. The Legislature may enact reasonable limitations on the time and manner of bringing suit under this subsectio |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | In this case we consider whether the Cheyenne River Sioux Tribe may regulate hunting and fishing by non-Indians on lands and overlying waters located within the Tribe's reservation *682 but acquired by the United for the operation of the Oahe Dam and Reservoir. I In 1868, the Fort Laramie Treaty, established the Great Sioux Reservation, which comprised most of what is now western South Dakota and part of North Dakota. Article II of the treaty provided that the reservation was to be held for the "absolute and undisturbed use and occupation" of Sioux Tribes and that no non-Indians (except authorized government agents) would "ever be permitted to pass over, settle upon, or reside in" the Great Sioux Reservation. The Act of Mar. 2, 1889, ch. 405, removed a substantial amount of land from the reservation and divided the remaining territory into several reservations, including the Cheyenne River Reservation, which is located in north-central South Dakota. The 1889 Act preserved those rights of the Sioux under the Fort Laramie Treaty that were "not in conflict" with the newly enacted statute. 19, The land designated for the Cheyenne River Reservation was held in trust by the United for the benefit of the Tribe. The 1889 Act also authorized the President to allot parcels of land within the reservation to individual Indians. 8, Some of these allotted lands were subsequently acquired by persons not members of the Cheyenne River Sioux Tribe. Non-Indians also acquired fee title to some of the unallotted and "surplus" lands on the reservation pursuant to the Indian General Allotment Act of 1887, ch. 119, and the Act of May 29, 1908, ch. 218, The Indian General Allotment Act allowed surplus lands to be sold to non-Indians; the Act of 1908 authorized the Secretary of the Interior to open for non-Indian settlement more than 1.6 million acres previously held in trust by the United These enactments vastly reduced the amount of *683 reservation land held in trust by the United for the Tribe and its members. Today trust lands comprise less than 50% of the reservation. App. 64. After severe floods devastated the lower Missouri River basin in 1943 and 1944, Congress passed the Flood Control Act of 1944, ch. 665, This Act authorized the establishment of a comprehensive flood control plan along the Missouri River, which serves as the eastern border of the Cheyenne River Reservation. The Act also directed the Army Chief of Engineers to "construct, maintain, and operate public park and recreational facilities in reservoir areas," and provided that the "reservoirs shall be open to public use |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | provided that the "reservoirs shall be open to public use generally," subject to "such rules and regulations as the Secretary of War may deem necessary." 4, -890. Seven subsequent Acts of Congress authorized limited takings of Indian lands for hydroelectric and flood control dams on the Missouri River in both North and South Dakota. See Lower Brule Sioux cert. denied, One of the largest of these takings involved the Oahe Dam and Reservoir Project, for which Congress required the Cheyenne River Sioux Tribe to relinquish 104,420 acres of its trust lands, including roughly 2,000 acres of land underlying the Missouri River.[1] The Tribe's agreement to "convey to the United all tribal, allotted, assigned, and inherited lands or interests" needed for the project is memorialized in the Cheyenne River Act of Sept. 3, 1954,[2]*684 Pursuant to the Flood Control Act, the United also acquired for the Oahe Dam and Reservoir Project an additional 18,000 acres that were owned in fee by non-Indians.[3] Although the Tribe conveyed all interests in the 104,420 acres of former trust lands to the United[4] the Cheyenne River Act reserved to the Tribe or tribal members certain rights respecting the use of these lands. Section 6 reserved "mineral rights" to the Tribe or individual tribal landowners, "subject to all reasonable regulations, which may be imposed by the [Army's] Chief of Engineers." Section 7 gave tribal members the right "without charge to cut and remove all timber and to salvage improvements" until the dam area was impounded. Section 9 allowed tribal members to continue residing on the land taken until closure of the dam's gates. -1193. Section 10 provided that the Tribe would have the right to "graze stock" on the taken lands and that: "[The] Tribal Council and the members of said Indian Tribe shall have, without cost, the right of free access to the shoreline of the reservoir including the right to hunt and fish in and on the aforesaid shoreline and reservoir, subject, however, to regulations governing the corresponding use by other citizens of the United"[5] *685 Before this dispute arose, both the Tribe and the State of South Dakota enforced their respective game and fish regulations in the taken area. The Tribe enforced its regulations against all violators; the State limited its enforcement to non-Indians. In 1988, following a dispute between the State and the tribal respondents regarding the 1988 deer hunting season, the Tribe announced that it would no longer recognize state hunting licenses and that hunters within the reservation would be "subject to prosecution in tribal court" unless licensed by the Tribe. |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | to prosecution in tribal court" unless licensed by the Tribe. App. 58. In response, the State filed this action against the Chairman of the Cheyenne River Sioux Tribe and the Director of Cheyenne River Sioux Tribe Game, Fish and Parks. In its complaint, the State sought to enjoin the Tribe from excluding non-Indians from hunting on nontrust lands within the reservation. In the alternative, the State sought a declaration that the federal takings of tribal lands for the Oahe Dam and Reservoir had reduced the Tribe's authority by withdrawing these lands from the reservation. The District Court concluded that the Cheyenne River Act "did not disestablish the Missouri River boundary of the Cheyenne River Reservation." Nevertheless, relying on the District Court held that 10 of the Cheyenne River Act clearly abrogated the Tribe's right to exclusive use and possession of the former trust lands. App. 125. The court further found that "Congress has not expressly delegated to the Tribe hunting and fishing jurisdiction over nonmembers" on the taken lands.[6] at 149. The District Court permanently *686 enjoined the Tribe and its members from exerting such authority.[7] The Court of Appeals affirmed in part, reversed in part, and remanded. The court distinguished between the 104,420 acres of former trust lands acquired pursuant to the Cheyenne River Act and the 18,000 acres of former non-Indian fee lands acquired pursuant to the Flood Control Act. As to the former trust lands, the court held that the Tribe had authority to regulate nonIndian hunting and fishing because the Cheyenne River Act did not clearly reveal Congress' intent to divest the Tribe of its treaty right to do so. As to the 18,000 acres of former fee lands, however, the court found that and controlled. Assuming the 18,000 acres had previously been held in fee by nonIndians pursuant to one of the Allotment Acts, the Court of Appeals noted that: "Since held that tribes have been divested of their regulatory authority over non-Indians hunting and fishing on land held in fee by non-Indians pursuant to an *687 allotment act, the lack of a grant of such power requires us to conclude that the Tribe does not possess such authority, unless one of the exceptions is met."[8] The Eighth Circuit therefore remanded the case for a determination whether the Tribe could regulate non-Indian hunting and fishing on the former fee lands pursuant to one of the exceptions to the general rule that an Indian tribe's inherent sovereign powers do not extend to non-Indian activity. We granted certiorari, and now reverse. II Congress has the power to |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | certiorari, and now reverse. II Congress has the power to abrogate Indians' treaty rights, see, e. g., Rosebud Sioux though we usually insist that Congress clearly express its intent to do so. See Menominee ; United See also County of (citations omitted). Our reading of the relevant statutes persuades us that Congress has abrogated the Tribe's rights under the Fort Laramie Treaty to regulate hunting and fishing by non-Indians in the area taken for the Oahe Dam and Reservoir Project. The Fort Laramie Treaty granted to the Cheyenne River Sioux Tribe the unqualified right of "absolute and undisturbed *688 use and occupation" of their reservation lands. We have interpreted identical language in a parallel treaty between the United and the Crow Tribe as embracing the implicit "power to exclude others" from the reservation and thereby "arguably conferr[ing] upon the Tribe the authority to control fishing and hunting on those lands." (construing the second Fort Laramie Treaty, ). Thus, we may conclude that pursuant to its original treaty with the United the Cheyenne River Tribe possessed both the greater power to exclude non-Indians from, and arguably the lesser included, incidental power to regulate non-Indian use of, the lands later taken for the Oahe Dam and Reservoir Project. Like this case, concerned an Indian Tribe's power to regulate non-Indian hunting and fishing on lands located within a reservation but no longer owned by the Tribe or its members. Under the General Allotment Act of 1887, ch. 119, as amended, 25 U.S. C. 332 et and the Crow Allotment Act of 1920, ch. 224, Congress had provided for certain Crow lands to be conveyed in fee to non-Indians for homesteading. We held that because the Tribe thereby lost the right of absolute use and occupation of lands so conveyed, the Tribe no longer had the incidental power to regulate the use of the lands by nonIndians. See Similarly, six Members of this Court, in Brendale v. Confederated Tribes, determined that at least with regard to the "open" portion of the Yakima Reservation, the Yakima Tribe had lost the authority to zone lands that had come to be owned in fee by non-Indians. -424 (opinion of White, J.); Because significant portions of that part of the reservation had been allotted under the General Allotment Act and had passed to non-Indians, those Justices concluded that the treaty's "exclusive use and benefit" provision was inapplicable to those lands and therefore could not confer *689 tribal authority to regulate the conduct of non-Indians there. and Brendale establish that when an Indian tribe conveys ownership of its tribal |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | that when an Indian tribe conveys ownership of its tribal lands to non-Indians, it loses any former right of absolute and exclusive use and occupation of the conveyed lands. The abrogation of this greater right, at least in the context of the type of area at issue in this case,[9] implies the loss of regulatory jurisdiction over the use of the land by others. In taking tribal trust lands and other reservation lands for the Oahe Dam and Reservoir Project, and broadly opening up those lands for public use, Congress, through the Flood Control and Cheyenne River Acts eliminated the Tribe's power to exclude nonIndians from these lands, and with that the incidental regulatory jurisdiction formerly enjoyed by the Tribe. The Flood Control Act authorized the construction, management, and operation of public recreational facilities on the lands taken for the Oahe Reservoir. 4, as amended, 16 U.S. C. 460d. Section 4 of the Act provides that "all such projects shall be open to public use generally" for various "recreational purposes, when such use is determined by the Secretary of the Army not to be contrary to the public interest, all under such rules and regulations as the Secretary of the Army may deem necessary." Section 4 further mandates "ready access to and exit from such water areas for general public use." Thus, the clear effect of the Flood Control Act is to open the lands taken for the Oahe Dam and Reservoir Project for the general recreational use of the public. Because hunting and fishing are "recreational purposes," the Flood Control Act affirmatively allows nonIndians to hunt and fish on such lands, subject to federal *690 regulation. The Act also clearly prohibits any "use" of the lands "which is inconsistent with the laws for the protection of fish and game of the State in which such area is situated" or which is determined by the Secretary of the Army to be "contrary to the public interest." If the Flood Control Act leaves any doubt whether the Tribe retains its original treaty right to regulate non-Indian hunting and fishing on lands taken for federal water projects, the Cheyenne River Act extinguishes all such doubt. Section II of that Act declares that the sum paid by the Government to the Tribe for former trust lands taken for the Oahe Dam and Reservoir Project, "shall be in final and complete settlement of all claims, rights, and demands" of the Tribe or its allottees. This provision reliably indicates that the Government and the Tribe understood the Act to embody the full terms of their |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | understood the Act to embody the full terms of their agreement, including the various rights that the Tribe and its members would continue to enjoy after conveying the 104,420 acres to the Government.[10] The Tribe's IX "right of free access to the shoreline of the reservoir includ[es] the right to hunt and fish " but is "subject to regulations governing the corresponding use by other citizens of the United " If Congress had intended by this provision to grant the Tribe the additional right to regulate hunting and fishing, it would have done so by a similarly explicit statutory command. The rights granted the Tribe in IX stand in contrast to the expansive treaty right originally granted to the Tribe of "absolute and undisturbed use," which does encompass the right to exclude and to regulate. See 558. *691 At oral argument, respondents insisted that they did not claim the right to exclude nonmembers from the taken area, but only the right to prevent nonmembers from hunting or fishing without appropriate tribal licenses. See Tr. of Oral Arg. 27-28, 30-31. It is ultimately irrelevant whether respondents claim a power to exclude.[11] Congress gave the Army Corps of Engineers, not the Tribe, regulatory control over the taken area. And as we have noted, an abrogated treaty right of unimpeded use and occupation of lands "can no longer serve as the basis for tribal exercise of the lesser included power" to regulate. Brendale, In the absence of applicable Army Corps regulations allowing the Tribe to assert regulatory jurisdiction over the project lands, we conclude that the Flood Control Act's openaccess mandate and the Cheyenne River Act's relevant provisions affirmatively abrogate the Tribe's authority to regulate entry onto or use of these lands.[12] The Court of Appeals found inapposite with respect to the 104,420 acres of former trust lands because "[t]he purpose of the [Cheyenne River] Act, unlike that of the Allotment Act at issue in was not the destruction of tribal self-government, but was only to acquire the property rights necessary to construct and operate the Oahe Dam and Reservoir." To focus on purpose is to misread In the Court did refer to the purpose of the Allotment Acts and discussed the legislative debates surrounding the allotment policy, as well as Congress' eventual repudiation of the policy in 1934 by the Indian *692 Reorganization Act, 25 U.S. C. 461 et -560, n. 9. However, at the end of this discussion, the Court unequivocally stated that "what is relevant is the effect of the land alienation occasioned by that policy on Indian treaty rights |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land. " n. 9 Thus, regardless of whether land is conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control.[13] Although involved lands conveyed in fee to nonIndians within the Crow Reservation, `s framework for examining the "effect of the land alienation" is applicable to the federal takings in this case. The takings at issue here do differ from the conveyances of fee title in however, in that the terms of the *693 Cheyenne River Act preserve certain limited land-use rights belonging to the Tribe. It could be argued that by reserving these rights, Congress preserved the right to regulate use of the land by non-Indians. Thus, the Court of Appeals treated the mineral, grazing, and timber rights retained by the Tribe under the Cheyenne River Act as evidence that the taking "was not a simple conveyance of land and all attendant interests in the land," and the court accordingly concluded that Congress had not abrogated the Tribe's pre-existing regulatory authority. We disagree. Congress' explicit reservation of certain rights in the taken area does not operate as an implicit reservation of all former rights. Our decision in United supports this conclusion. In Dion, we considered whether an Indian who takes an eagle on tribal land violates the Bald Eagle Protection Act.[14] We demanded "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." The Bald Eagle Protection Act contains an exemption allowing the Secretary of the Interior to permit the taking of an eagle "for the religious purposes of Indian tribes" and for other narrow purposes found to be compatible with the goal of eagle preservation. 16 U.S. C. 668a. We found this exemption "difficult to explain except as a reflection of an understanding that the statute otherwise bans the taking of eagles by Indians." 476 U.S., Likewise, we cannot explain X of the Cheyenne River Act and 4 of the Flood Control Act except as indications that Congress sought to divest the Tribe of its right to "absolute and undisturbed use and occupation" of the taken area. When Congress reserves limited rights to a tribe or its members, *694 the very presence of such a limited reservation of rights |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | the very presence of such a limited reservation of rights suggests that the Indians would otherwise be treated like the public at large. III Respondents and their amici raise several alternative arguments, none of which undercuts our statutory analysis. Respondents argue, for example, that their right to regulate hunting and fishing in the taken area was not abrogated because the $10,644,014 appropriated in the Cheyenne River Act did not include compensation for the Tribe's loss of licensing revenue. This sum, respondents argue, did include payment for, inter alia, the loss of grazing permit revenues and the destruction of wildlife, wild fruit, and other natural resources, as those losses were itemized in the House Report on the Cheyenne River Act. See Brief for Respondents 9 (citing H. R. Rep. No. 2484, 83d Cong., 2d Sess., 4 (1954)). To hold their regulatory authority divested, respondents contend, would imply that Congress breached its duty to compensate the Tribe for all taken resources. The Act itself, however, does not itemize the losses covered by the compensation but rather plainly states that the appropriated funds constitute a "final and complete settlement of all claims, rights, and demands" of the Tribe arising out of the Oahe Dam and Reservoir Project. II, Given the express text of the Act, we will not conclude that the Act reserved to the Tribe the right to regulate hunting and fishing simply because the legislative history does not include an itemized amount for the Tribe's loss of revenue from licensing those activities. General principles of "inherent sovereignty" also do not enable the Tribe to regulate non-Indian hunting and fishing in the taken area. Although Indian tribes retain inherent authority to punish members who violate tribal law, to regulate tribal membership, and to conduct internal tribal relations, United v. Wheeler, the "exercise of tribal power beyond what is necessary to protect *695 tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation," Having concluded that Congress clearly abrogated the Tribe's pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribe to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty.[15] The question remains, however, whether the Tribe may invoke other potential sources of tribal jurisdiction over nonIndians on these lands. discussed two exceptions to "the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." First, a tribe may license |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | of nonmembers of the tribe." First, a tribe may license or otherwise regulate activities of nonmembers who enter "consensual relationships" with the tribe or its members through contracts, leases, or other commercial dealings. Second, a "tribe may retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." The District Court made extensive findings that neither of these exceptions applies to either the former trust lands or the former fee lands. See App. 142-149. And although the Court of Appeals instructed the District Court *696 to undertake a new analysis of the exceptions on remand as to the 18,000 acres, it did not pass upon the District Court's previous findings regarding the taken area as a whole. See Thus, we leave this to be resolved on remand. Finally, respondents contend that Army Corps regulations permit the Tribe to regulate non-Indian hunting and fishing. Although Congress abrogated the Tribe's right to regulatory control in the taken area through the Flood Control and Cheyenne River Acts, it gave primary regulatory authority over the water project lands to the Army Corps of Engineers. 16 U.S. C. 460d. See 36 CFR 327.1(a) The Corps has authority to promulgate regulations "not inconsistent with treaties and Federal laws and regulations" concerning "the rights of Indian Nations." 327.1(f). The Corps permits "[h]unting, fishing and trapping except in areas where prohibited by the District Engineer." 327.8. This regulation provides that "[a]ll Federal, state and local laws governing these activities apply on project lands and waters, as regulated by authorized enforcement officials." See also 327.26. Respondents argue that these regulations "not only allow for tribal regulation of hunting and fishing, they affirmatively establish the primacy of tribal treaty rights over both public use rights and state and federal regulatory interests." Brief for Respondents 33 (emphasis in original) (footnote omitted). Insisting that "tribal" law is a subset of "local" law, respondents contend that the Tribe's hunting and fishing laws apply to all who pass through the taken area. Respondents did not rely on the Army Corps' regulations in the proceedings below. And although the United as amicus curiae asserted at oral argument that 327.8 leaves all pre-existing state, local, and tribal hunting and fishing regulations in effect on project lands, see Tr. of Oral Arg. 50, it did not even mention the Army Corps regulation *697 in its brief. Moreover, it is inconsistent with evidence in the record that |
Justice Thomas | 1,993 | 1 | majority | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | Moreover, it is inconsistent with evidence in the record that the Corps in fact believed that jurisdiction over non-Indian hunting and fishing on water project lands is a matter of state law.[16] See App. 288, 284. Thus, we find this argument undeveloped. Under these circumstances, we decline to defer to the Government's litigating position. IV "[T]reaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands." In this case, the United took former trust lands pursuant to the Flood Control Act, which mandated that all water project lands be open for the general public's use and recreational enjoyment. The Cheyenne River Act reserved some of the Tribe's original treaty rights in the former trust lands (including the right to hunt and fish) but not the right to exert regulatory control. These statutes clearly abrogated the Tribe's "absolute and undisturbed use and occupation" of these tribal lands, and thereby deprived the Tribe of the power to license non-Indian use of the lands. Accordingly, the judgment of the Court of Appeals is reversed, and the case *698 is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Blackmun | 1,972 | 11 | dissenting | Webb v. Texas | https://www.courtlistener.com/opinion/108634/webb-v-texas/ | The facts before us do not, in my opinion, justify the Court's summary disposition. Petitioner Webb (who, on a prior occasion, had been convicted on still another *99 burglary charge) was apprehended by the owner of a lumber business. The owner, armed with his shotgun, had driven to his office at three o'clock in the morning upon the activation of a burglar alarm. When he entered the building, the owner observed a broken window and an assortment of what he regarded as burglary tools on his desk. When men emerged from an adjacent room, a gun fight ensued. Two intruders escaped, but the owner, despite his having been shot twice, succeeded in holding the petitioner at gunpoint until police arrived. Although the admonition given by the state trial judge to the sole witness proffered by the defense was obviously improper, sufficient facts have not been presented to this Court to demonstrate the depth of prejudice that requires a summary reversal. The admonition might prove far less offensive, and the conduct of the trial judge understandable, if, for example, as is indicated in petitioner's brief, p. 8, prepared by counsel and filed with the Texas Court of Criminal Appeals, the witness were known to have been called for the purpose of presenting an alibi defense. Against the backdrop of being caught on the premises and of apparently overwhelming evidence of guilt, offset only by a bare allegation of prejudice, I would deny the petition for certiorari and, as the Court so often has done, I would remit the petitioner to the relief available to him by way of a post-conviction proceeding with a full evidentiary hearing.[*] |
Justice Kennedy | 1,995 | 4 | majority | ICC v. Transcon Lines | https://www.courtlistener.com/opinion/117886/icc-v-transcon-lines/ | Though recent Acts of Congress have made substantial changes in the regulation of interstate motor see Negotiated Rates Act of ; Trucking Industry Regulatory Reform Act of 1994, this case arises under the law in effect before those enactments. We address once again the Interstate Commerce Act's filed rate requirements, 49 U.S. C. 10761(a), 10762(a)(1), and *140 their bearing on the authority of the Interstate Commerce Commission (ICC) to enforce related provisions of the Act and regulations adopted under it. Under the filed rate doctrine applicable to the transactions here in question, motor were required to publish their shipping rates in tariffs filed with the ICC and to receive only the published rates. Our cases have taught the necessity of strict compliance with this scheme. E. g., Industries, U. S., ; Louisville & Nashville R. The question now presented is whether the filed rate doctrine bars the ICC from obtaining injunctive relief to enforce its credit regulations in a manner that would prevent collection of a rate filed in a published tariff. We hold that the filed rate doctrine does not bar the injunction the ICC seeks. I Lines () was once the 12th largest motor carrier in the United States, operating under authorization from the ICC. Like many other became a victim of the heightened competition resulting from Congress' partial deregulation of the motor carrier industry in 1980. See Motor Carrier Act of 1980, In May 1990, consented to an order for relief pursuant to an involuntary bankruptcy petition filed against it under Chapter 11. The trustee appointed by the Bankruptcy Court followed the practice of some other trustees for the estates of bankrupt and sought to collect undercharges from 's former customers. The trustee sought not only to collect unpaid freight charges but also to collect liquidated damages for late payment. Some 3,000 adversary proceedings brought by the trustee against 's former customers are pending, and the ICC estimates the liquidated damages in question total about $15 million. *141 The Act bars common subject to the ICC's jurisdiction from extending credit for their services except "[u]nder regulations of the [ICC] governing the payment for transportation and service and preventing discrimination." 49 U.S. C. 10743(b)(1), 10743(a). By regulations under this express statutory delegation, the ICC has set out in detail the exclusive means by which common can extend credit to shippers. See 49 CFR pt. 1320 Under the regulations, are authorized to establish credit periods of up to 30 calendar days, 1320.2(c), (d), and, if shippers fail to pay their charges within the established credit period, to assess service |
Justice Kennedy | 1,995 | 4 | majority | ICC v. Transcon Lines | https://www.courtlistener.com/opinion/117886/icc-v-transcon-lines/ | their charges within the established credit period, to assess service (or interest) charges, 1320.2(e). Carriers also may assess liquidated damages to cover collection costs, either by a tariff rule or through contract terms in their bills of lading. 1320.2(g)(1), (3). Before collecting liquidated damages by tariff rule, however, a carrier must follow specified procedural requirements. First, the timing and conditions of any potential liquidated damages must be described clearly in the carrier's filed tariff. 1320.2(g)(2)(i). Second, the original bill sent to the shipper must set forth any liquidated damages that would be assessed for failure to make timely payment of the freight charges. 1320.3(c). Third, within 90 days after expiration of the authorized credit period the carrier must "issu[e] a revised freight bill or notice of imposition of collection expense charges for late payment." 1320.2(g)(2)(vi). Finally, liquidated damages "[s]hall be applied only to the nonpayment of original, separate and independent freight bills and shall not apply to aggregate balance-due claims sought for collection on past shipments by a bankruptcy trustee, or any other person or agent" 1320.2(g)(2)(iii). Upon satisfying these requirements, may assess liquidated damages through a tariff rule by one of two methods. The first is "to assess liquidated damages as a separate additional charge to the unpaid freight bill." 1320.2(g)(1) (i). The second is to charge the shipper a "full, nondiscounted *142 rate instead of the discounted rate [that might otherwise be] applicable." 1320.2(g)(1)(ii). used the second, so-called loss-of-discount method to assess liquidated damages. The measure of liquidated damages under this method is prescribed by an ICC regulation. It provides: "The difference between the discount and the full rate constitutes a carrier's liquidated damages for its collection effort. Under this method the tariff shall identify the discount rates that are subject to the condition precedent and which require the shipper to make payment by a date certain." 's customers had been charged discount rates, expressed as a percentage of a generic bureau rate. To collect liquidated damages, the trustee demanded the nondiscount bureau rate from former customers who had failed to pay their original discount charges on time. The ICC sued in the United States District Court for the Central District of California to enjoin the trustee from collecting loss-of-discount liquidated damages. It did not allege that had failed to state its liquidated damages provisions in its filed tariff. had specified in its "rules tariff" that "discounts shall apply only when tariff charges are paid within 90 calendar days from date of shipment." ICC TCON 103A, Item 210, 1 Supplemental Excerpts of Record 41. The ICC did assert, |
Justice Kennedy | 1,995 | 4 | majority | ICC v. Transcon Lines | https://www.courtlistener.com/opinion/117886/icc-v-transcon-lines/ | 1 Supplemental Excerpts of Record 41. The ICC did assert, though, that had violated each of the three other liquidated damages requirements set out above. 's original bills did not advise shippers of the consequences of late payment, as required by 1320.3(c); revised bills were not issued until several years after the 90-day period provided in 1320.2(g)(2)(vi); and the loss-of-discount provision was being applied by a bankruptcy trustee on an aggregate basis, contrary to 1320.2(g)(2)(iii). The requested injunction would prohibit the trustee from pursuing claims in violation of those requirements. *143 The District Court granted summary judgment for respondents, and the United States Court of Appeals for the Ninth Circuit affirmed in relevant part, The Court of Appeals understood that the ICC as a general matter is authorized to enforce its credit regulations by seeking an injunction, see 49 U.S. C. 11702(a)(4), (a)(6). It also recognized, or at least implied, that the credit regulations are valid on their face, but said that "[r]egulations, however valid in other contexts, cannot furnish the reason for letting the carrier abandon the filed rate." Relying on our decision in Industries, U. S., that the filed rate doctrine bars the ICC from interpreting the unreasonable practice rule to prevent collection of a filed rate where a carrier had agreed to a lower one, the court concluded that "[t]he ICC's interpretation of [the liquidated damages] regulations has no greater force than the policy rejected in " 990 F.2d, It held that "the filed rate doctrine trumps the manner in which the ICC seeks to regulate carrier credit in this case." After the Court of Appeals issued its opinion, we decided The Court addressed whether a shipper's unreasonable rate claim could be raised in a carrier's suit to collect the difference between the amount charged and the higher amount due under the tariff, or whether the shipper's claim had to be raised in a separate proceeding before the ICC. We held the filed rate doctrine does not bar shippers from raising claims and defenses accorded by the Act, even if this results in defeating collection of a filed rate, and allowed the shipper to allege, subject to the ordinary rules governing counterclaims, an unreasonable-rate counterclaim to the carrier's undercharge action. at 262-267. In light of Reiter, we vacated the Court of Appeals' judgment in the instant matter and remanded for further consideration. *144 On remand, the Court of Appeals adhered to its earlier determination. It found Reiter distinguishable but concluded that, even if it were apposite, Reiter did no more than require a balancing of the carrier's |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.