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Congress's Power Over Courts: Jurisdiction Stripping and the Rule of 'Klein' [September 26, 2017]
"Article III of the Constitution establishes the judicial branch of the federal government. Notably, it empowers federal courts to hear 'cases' and 'controversies.' The Constitution further creates a federal judiciary with significant independence, providing federal judges with life tenure and prohibiting diminutions of judges' salaries. But the Framers also granted Congress the power to regulate the federal courts in numerous ways. For instance, Article III authorizes Congress to determine what classes of 'cases' and 'controversies' inferior courts have jurisdiction to review. Additionally, Article III's Exceptions Clause grants Congress the power to make 'exceptions' and 'regulations' to the Supreme Court's appellate jurisdiction. Congress sometimes exercises this power by 'stripping' federal courts of jurisdiction to hear a class of cases. Congress has gone so far as to eliminate a court's jurisdiction to review a particular case in the midst of litigation. More generally, Congress may influence judicial resolutions by amending the substantive law underlying particular litigation of interest to the legislature."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2017-09-26
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Supreme Court October Term 2016: A Review of Select Major Rulings [September 15, 2017]
"The Supreme Court term that began on October 3, 2016, was notably different from recent terms at the High Court. It was the first term (1) in thirty years to begin without Justice Antonin Scalia on the Court; (2) since 1987 to commence with a Court made up of fewer than nine active Justices; and (3) since 2010 in which a new member (Justice Neil Gorsuch) joined the High Court. Court observers have suggested that the lack of a fully staffed Supreme Court for the bulk of the last term likely had an impact on the Court's work both with regard to the volume of cases that the Court heard and the nature of those cases. The Court issued seventy written opinions during the October 2016 term and heard oral arguments in sixty-four cases, numbers that constitute the lightest docket for the Court since at least the Civil War era. Moreover, unlike in recent terms where the Court issued opinions on matters related to abortion and affirmative action, the Court's docket for the October 2016 term had comparatively very few high-profile issues."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brown, Cynthia; Garcia, Michael John . . .
2017-09-15
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Second Amendment Right to Sell Firearms? The Ninth Circuit, Sitting En Banc, Weighs In [November 02, 2017]
"On October 10, 2017, in a 9-2 ruling, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) sitting en banc reversed a decision by a three-judge Ninth Circuit panel that held that the Second Amendment protects the commercial sale of firearms. The case, 'Teixeira v. County of Alameda,' involves a Second Amendment challenge to a zoning regulation applicable to firearms stores in Alameda County, California. Teixeira provides Congress with the most substantive guidance on the Second Amendment's applicability to the commercial sale of arms since the Supreme Court commented in 'District of Columbia v. Heller' that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on . . . laws imposing conditions and qualifications on the commercial sale of firearms,' among other 'presumptively lawful' regulations. The en banc ruling coincidentally was handed down as Congress is poised to consider legislation designed to limit the manufacture, sale, and possession of 'bump stock' devices, a firearm accessory that allows a semi-automatic firearm to mimic the firing rate of a fully automatic machine gun."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2017-11-02
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Firearm Background Checks: Current Federal Framework and the House-Passed Proposals in the 116th Congress [Updated March 1, 2019]
From the Document: "Federal law requires a background check for many, but not all, firearms transfers. The Brady Handgun Violence Prevention Act (Brady Act), Pub. L. No. 103-159, 107 Stat. 1536, established the federal framework for firearms background checks. Under the Act, the Federal Bureau of Investigation (FBI) established the National Instant Criminal Background Check System (NICS), which queries various government records that could reveal a prospective transferee is ineligible to receive a firearm. Since the Brady Act became law in 1993 and NICS went live in 1998, the framework governing the background check system has remained largely unchanged. Amendments to the Brady Act generally have addressed getting more records entered into the system by state and federal entities."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2019-03-01
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'Flores Settlement' and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions [September 17, 2018]
"The Immigration and Nationality Act (INA) authorizes--and in some case requires--DHS to detain aliens pending removal proceedings. However, neither the INA nor other federal laws specifically address when or whether alien family members must be detained together. DHS's options regarding the detention or release of alien families are significantly restricted by a binding settlement agreement from a case in the U.S. District Court for the Central District of California now called Flores v. Sessions. The 'Flores Settlement' establishes a policy favoring the release of alien minors, including accompanied alien minors, and requires that those alien minors who are not released from government custody be transferred within a brief period to non-secure, state-licensed facilities. DHS indicates that few such facilities exist that can house adults and children together. Accordingly, under the Flores Settlement and current circumstances, DHS asserts that it generally cannot detain alien children and their parents together for more than brief periods."
Library of Congress. Congressional Research Service
Peck, Sarah Herman; Harrington, Ben
2018-09-17
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'Flores Settlement' and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions [August 28, 2018]
"Reports of alien minors being separated from their parents at the U.S. border have raised questions about the Department of Homeland Security's (DHS's) authority to detain alien families together pending the aliens' removal proceedings, which may include consideration of claims for asylum and other forms of relief from removal. The Immigration and Nationality Act (INA) authorizes--and in some case requires--DHS to detain aliens pending removal proceedings. However, neither the INA nor other federal laws specifically address when or whether alien family members must be detained together. DHS's options regarding the detention or release of alien families are significantly restricted by a binding settlement agreement from a case in the U.S. District Court for the Central District of California now called Flores v. Sessions. The 'Flores Settlement' establishes a policy favoring the release of alien minors, including accompanied alien minors, and requires that those alien minors who are not released from government custody be transferred within a brief period to non-secure, state-licensed facilities. DHS indicates that few such facilities exist that can house adults and children together. Accordingly, under the Flores Settlement and current circumstances, DHS asserts that it generally cannot detain alien children and their parents together for more than brief periods."
Library of Congress. Congressional Research Service
Peck, Sarah Herman; Harrington, Ben
2018-08-28
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Does ATF's Bump-Stock Ban Comport with the APA? [May 8, 2019]
From the Document: "Congressional interest in regulating 'bump stock' devices grew after authorities discovered that the perpetrator of the October 2017 mass shooting in Las Vegas had attached to his semiautomatic firearms an accessory that allowed his rifles to effectively mimic the firing capabilities of a fully automatic weapon (e.g., a machine gun). But to date, federal legislation has not been enacted that expressly regulates bump stocks. At the administrative level, though, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) banned these devices--effective March 26, 2019--in a final rule published in the 'Federal Register' 90 days earlier on December 26, 2018. ATF achieved this ban by classifying bump-stock devices as 'machineguns,' as that term is defined in the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). Several bump-stock owners and advocates challenged ATF's rule in multiple lawsuits, arguing, among other things, that ATF promulgated the rule in violation of the Administrative Procedure Act (APA). In one of those lawsuits, 'Guedes v. ATF,' the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) upheld a lower court ruling that declined to preliminarily enjoin the rule from taking effect. This Sidebar explains the statutory framework for regulating machine guns, discusses ATF's final rule, and examines the APA-related litigation."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2019-05-08
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Congress's Power over Courts: Jurisdiction Stripping and the Rule of Klein [August 9, 2018]
"Article III of the Constitution establishes the judicial branch of the federal government. Notably, it empowers federal courts to hear 'cases' and 'controversies.' The Constitution further creates a federal judiciary with significant independence, providing federal judges with life tenure and prohibiting diminutions of judges' salaries. But the Framers also granted Congress the power to regulate the federal courts in numerous ways. For instance, Article III authorizes Congress to determine what classes of 'cases' and 'controversies' inferior courts have jurisdiction to review. Additionally, Article III's Exceptions Clause grants Congress the power to make 'exceptions' and 'regulations' to the Supreme Court's appellate jurisdiction. Congress sometimes exercises this power by 'stripping' federal courts of jurisdiction to hear a class of cases. Congress has gone so far as to eliminate a court's jurisdiction to review a particular case in the midst of litigation. More generally, Congress may influence judicial resolutions by amending the substantive law underlying particular litigation of interest to the legislature."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-08-09
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Family Separation at the Border and the Ms. L. Litigation [July 31, 2018]
"The separation of families of non-U.S. nationals (aliens) apprehended by immigration authorities near the border has prompted contentious debate among policymakers as well as legal challenge to immigration detention policies. Trump Administration officials have called for legislation addressing family separation, while some lawmakers have urged the executive branch to modify current separation policies to ensure that families detained by immigration authorities are held or released from custody together. On June 20, 2018, President Trump issued an executive order announcing that it is 'the policy of this Administration to maintain family unity, including by detaining families together where appropriate and consistent with law and available resources.'"
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-07-31
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Oops: When Does a Plain Error in Calculating a Defendant's Sentencing Guidelines Range Warrant Resentencing? [August 8, 2018]
"In the federal criminal justice system, not all errors justify relief. Notably, under Federal Rule of Criminal Procedure 52(b), federal courts may, but are not required to, correct an error if a defendant failed to notify the district court about the error. (These kinds of forfeited errors, like failing to object when an error is made, are generally called 'plain errors.') However, the Supreme Court has opined that an appellate court should exercise its discretion to correct an unpreserved error 'if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.' For example, under that standard a new trial unlikely would be warranted if defense counsel neglected to object to a prosecutor's improper leading question. But what about if defense counsel doesn't point out an error in the district court's calculation of the defendant's U.S. Sentencing Guidelines (Guidelines) range? Rosales-Mireles v. United States, argued during the Supreme Court's October 2017 term, addressed that question. Specifically, the case evaluated the scope of an appellate court's discretion to order resentencing when the district court makes a plain error in calculating a defendant's Guidelines range. In a 7-2 ruling authored by Justice Sotomayor, the Court held that 'in the ordinary case,' resentencing will be warranted."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-08-08
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Supreme Court Reiterates Congress's Exclusive Role in Regulating Lower Federal Court Jurisdiction [November 29, 2017]
"The Supreme Court's first signed opinion from the October 2017 term addressed the Federal Rules of Appellate Procedure (FRAP), a body of procedural rules created by the Supreme Court (under statutory authorization) that supplements statutory rules governing federal appellate litigation. In 'Hamer v. Neighborhood Housing Services of Chicago,' the Court assessed whether FRAP 4(a)(5)(C), which governs the timeliness of an appeal, is jurisdictional in nature or, rather, a mandatory claim-processing rule. When a rule is jurisdictional, a party's failure to comply with it deprives the court of jurisdiction to hear the matter. Conversely, a claim-processing rule is designed to streamline litigation by requiring parties to do certain things at certain times (e.g., a rule laying out the procedures and timeline for filing a notice of appeal) but, if not followed, does not interfere with a court's jurisdiction. In 'Hamer,' the Supreme Court unanimously reversed the Seventh Circuit's holding that FRAP 4(a)(5)(C) is a jurisdictional rule requiring a lawsuit's dismissal if the appellant untimely files a notice of appeal. In doing so the Court sent a clear message that Congress, and only Congress, may create rules governing the jurisdiction of the lower federal courts, and thus, court-made rules -- even if made pursuant to legislative authority -- will never be construed as jurisdictional."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2017-11-29
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In Any Way, Shape, or Form? What Qualifies as 'Any Court' Under the Gun Control Act? [November 14, 2017]
"The mass shooting that took place at the First Baptist Church in Sutherland Springs, Texas has raised questions about whether a required background check should have blocked the assailant, Devin P. Kelley, from purchasing the semi-automatic rifle. [...] Preliminary reports reveal that Kelley may have been barred from purchasing and possessing a firearm for two possible reasons related to criminal activity: (1) a felony conviction and/or (2) a domestic violence conviction. This speculation is based on reports that Kelley, while serving in the U.S. Air Force, had been convicted of crimes related to domestic abuse against his wife and stepchild, yet those convictions never made it into the FBI's firearm background check database, the National Instant Criminal Background Check System (NICS). The Uniform Code of Military Justice (UCMJ) is a body of criminal law applicable to members of the U.S. Armed Forces. Created by Congress through its Article I, Section 8 war powers, UCMJ crimes are tried in military tribunals called 'courts-martial.' Because Kelley was convicted by a court-martial, it is necessary to determine whether convictions from those courts qualify to create a firearm disability under the Gun Control Act of 1968 (GCA), as amended."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2017-11-14
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Civil-Suit Provision in House-Passed Concealed Carry Reciprocity Bill (H.R. 38): Scope and Application [February 21, 2018]
"In December 2017, the House of Representatives passed H.R. 38, The Concealed Carry Reciprocity Act of 2017. H.R. 38's overarching purpose is to allow persons who are eligible to carry a concealed handgun in one state to lawfully carry a handgun in other states that have a concealed-carry regime for their residents, without regard to differences in the states' eligibility requirements for concealed carry. In furtherance of this goal, the bill authorizes a private right of action against any person who interferes with a concealed-carry right that the bill establishes."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-02-21
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U.S. Gun Policy: Framework and Major Issues [December 3, 2018]
"Federal firearms regulation has been a subject of continuous interest for legislators. In recent Congresses, a range of proposals has been introduced, with some seeking to ease various federal firearms restrictions or facilitate reciprocity in state treatment of persons authorized to carry a firearm by another state. Other proposals have sought greater restrictions on the federal rules concerning the possession, transfer or sale of firearms,or the expansion of background checks for firearm purchases. These various approaches, in turn, prompt debate about not only their pros and cons but also their legalities, as Congress's ability to legislate on such matters must comport with the Second Amendment and other constitutional constraints."
Library of Congress. Congressional Research Service
Peck, Sarah Herman; Krouse, William J.
2018-12-03
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'Sanctuary' Jurisdictions: Federal, State, and Local Policies and Related Litigation [Updated April 16, 2019]
From the Introduction: "This report discusses legal issues related to state and local measures limiting law enforcement cooperation with federal immigration authorities, as well as the federal government's efforts to counter those measures. It begins by providing a general explanation of the term 'sanctuary jurisdiction' for the purpose of this report. Next, it provides an overview of constitutional principles underlying the relationship between federal immigration laws and related state and local measures, namely, preemption and the anti-commandeering doctrine. Then, it discusses various types of laws and policies adopted by states and localities to limit their participation with federal immigration enforcement efforts, which may give rise to a label of 'sanctuary jurisdiction,' and federal efforts to counter those measures. Finally, the report concludes with a discussion of the lawsuits challenging the executive order targeting sanctuary jurisdictions and certain executive branch actions to implement the executive order."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2019-04-16
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Federal Firearms Laws: Overview and Selected Legal Issues for the 116th Congress [March 25, 2019]
From the Document: "Firearms have a unique significance in American society. Millions own or use firearms for numerous lawful purposes, such as hunting and protecting themselves in the home. Still, firearms annually cause tens of thousands of injuries and deaths, including in high-profile mass shootings. The widespread lawful and unlawful uses of firearms have prompted vigorous debate over whether further firearm regulation would be effective or appropriate. And framing the policy debate are legal issues stemming from the existing federal framework of firearms laws and the constitutional constraints that may cabin Congress's ability to legislate in this area. [...] This report provides an overview of the development of federal firearms laws and the major components of the current statutory regimes governing firearms. It then describes the constitutional considerations that may impact Congress's ability to enact firearms laws. Finally, this report describes selected topical areas where the 115th and 116th Congresses have considered legislation to amend the existing federal framework regulating firearms, highlighting some of the constitutional issues that may arise in those areas."
Library of Congress. Congressional Research Service
Peck, Sarah Herman; Foster, Michael A. (Legislative attorney)
2019-03-25
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When Can the Firearm Industry Be Sued? [April 24, 2019]
From the Document: "There has been increased interest in the scope of the Protection of Lawful Commerce in Arms Act (PLCAA) after the Connecticut Supreme Court ruled that a wrongful death lawsuit may go forward against the manufacturer, distributor, and dealer of the semiautomatic rifle used by the assailant in the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. The PLCAA generally bars lawsuits in federal or state court against firearm manufacturers, distributors, and dealers when a third party acquires a firearm from that distribution chain and uses it for criminal ends. But the plaintiffs in 'Soto v. Bushmaster Firearms International' contend, and the Connecticut Supreme Court agreed, that the alleged claims fit within one of the PLCAA's enumerated exceptions: when a manufacturer or seller knowingly violates a state or federal law 'applicable to' the sale or marketing of firearms, and that violation 'was a proximate cause' of the harm the lawsuit seeks to vindicate (known as the 'predicate exception'). This Sidebar outlines the PLCAA, explains the 'Soto' ruling, and evaluates the impact it may have on future litigation against the firearms industry if plaintiffs may invoke consumer-protection laws-- the type of law relied on in 'Soto'--as a means for shooting victims to seek compensation from the makers and distributors of firearms."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2019-04-24
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ATF's Ability to Regulate 'Bump Stocks' [March 22, 2018]
"Congressional interest in the legal framework for regulating 'bump stock' devices abounded after authorities discovered that the perpetrator of the October 2017 mass shooting in Las Vegas, Nevada, had attached to his semiautomatic firearms an accessory that allowed his rifles to effectively mimic the firing capabilities of a fully automatic weapon. (These firearm accessories are commonly called 'bump-fire,' 'slide-fire,' or 'bump-stock' devices, and more information on how they function can be found in this CRS Insight by William J. Krouse.) One pertinent question involves the degree to which the Department of Justice's Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) may regulate, and potentially proscribe, the sale and possession of such devices under existing law. The answer to this question largely depends on whether a bump-stock device reasonably can be construed as falling under the federal statutory definition of a 'machinegun.'"
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-03-22
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ATF's Ability to Regulate 'Bump Stocks' [April 11, 2018]
"Congressional interest in the legal framework for regulating 'bump stock' devices abounded after authorities discovered that the perpetrator of the October 2017 mass shooting in Las Vegas, Nevada, had attached to his semiautomatic firearms an accessory that allowed his rifles to effectively mimic the firing capabilities of a fully automatic weapon. (These firearm accessories are commonly called 'bump-fire,' 'slide-fire,' or 'bump-stock' devices, and more information on how they function can be found in this CRS Insight by William J. Krouse.) One pertinent question involves the degree to which the Department of Justice's Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) may regulate, and potentially proscribe, the sale and possession of such devices under existing law. The answer to this question largely depends on whether a bump-stock device reasonably can be construed as falling under the federal statutory definition of a 'machinegun.'"
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-04-11
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Civil-Suit Provision in the House-Passed Concealed Carry Reciprocity Act of 2017 (H.R. 38) [February 20, 2018]
"This memorandum evaluates legal issues potentially arising from the civil-suit provision in H.R. 38, the Concealed Carry Reciprocity Act of 2017, which the House of Representatives passed on December 6, 2017.1 The bill's broader purpose is to allow persons who are eligible to carry a concealed handgun in one state to lawfully carry a handgun in other states that have a concealed-carry regime for their residents, without regard to differences in the states' eligibility requirements for concealed carry.2 The bill's civilsuit provision, broadly speaking, authorizes a private right of action against any person who interferes with a concealed-carry right that the bill establishes. This memorandum evaluates what rights are created by the bill, identifies who may be able to sue and be sued under the bill's civil-suit provision, addresses questions of sovereign immunity raised by the civil-suit provision, and examines potential liability under H.R. 38 versus 42 U.S.C. § 1983."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-02-20
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Immigration Consequences of Criminal Activity [April 5, 2018]
"Congress's power to create rules governing the admission of non-U.S. nationals (aliens) has long been viewed as plenary. In the Immigration and Nationality Act (INA), as amended, Congress has specified grounds for the exclusion or removal of aliens, including on account of criminal activity. Some criminal offenses, when committed by an alien who is present in the United States, may render that alien subject to removal from the country. And certain criminal offenses may preclude an alien outside the United States from being either admitted into the country or permitted to reenter following an initial departure. Further, criminal conduct may disqualify an alien from certain forms of relief from removal or prevent the alien from becoming a U.S. citizen. In some cases, the INA directly identifies particular offenses that carry immigration consequences; in other cases, federal immigration law provides that a general category of crimes, such as 'crimes involving moral turpitude' or an offense defined by the INA as an 'aggravated felony,' may render an alien ineligible for certain benefits and privileges under immigration law."
Library of Congress. Congressional Research Service
Peck, Sarah Herman; Smith, Hillel R.
2018-04-05
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DOJ Grant Conditions Targeting Sanctuary Jurisdictions: Litigation Update [May 4, 2018]
"On April 19, 2018, the U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) upheld a nationwide preliminary injunction blocking the Department of Justice (DOJ) from implementing two new conditions that the agency imposed on the receipt of federal funds from the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program. This litigation is one of several lawsuits stemming from Section 9 of President Trump's January 30, 2017 Executive Order targeting 'sanctuary jurisdictions' and executive implementation of that order. One group of lawsuits has sought to enjoin the executive order's enforcement. Another group of lawsuits, including one filed by the City of Chicago, Illinois, were brought after the DOJ announced new conditions for certain federal grant programs that made the receipt of funds contingent on grant recipients' compliance with particular federal immigration policies. The focus of this Sidebar discusses the Chicago litigation, including potential legislative responses to the injunction."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2018-05-04
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Post-'Heller' Second Amendment Jurisprudence [Updated March 25, 2019]
From the Document: "The Second Amendment states that '[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.' Before the Supreme Court's 2008 opinion in 'District of Columbia v. Heller', the Second Amendment had received little Supreme Court attention and had been largely interpreted, at least by the lower federal courts, to be intertwined with military or militia use. Still, there had been ample debate in the lower federal courts and political discussion over whether the Second Amendment provides an individual right to keep and bear arms, versus a collective right belonging to the states to maintain militias. 'Pre-Heller', the vast majority of lower federal courts had embraced the collective right theory."
Library of Congress. Congressional Research Service
Peck, Sarah Herman
2019-03-25
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