Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P51 ppt

DISQUALIFY To deprive of eligibility or render unfit; to disable or incapacitate. To be disqualified is to be stripped of legal capacity. A wife would be disqualified as a juror in her husband’s trial for MURDER due to the nature of their relationship. A person may be disqualified for employment at a certain job because of a physical disability. DISSENT An explicit disagreement by one or more judges with the decision of the majority on a case before them. A dissent is often accompanied by a written dissenting opinion, and the terms dissent and dissenting opinion are used interch angeably. Dissents have several functions. In some cases, they are a simple declaration of disagree- ment with the majority. In others, they instruct, prod, scold, or otherwise urge the majority to consider the dissenter’s point of view. Dissents carry no precedential weight and are not relied on as authority in subsequent cases. However, attorneys and judges sometimes consult them to understand the dissenter’s analysis of the majority opinion. Attorneys and judges may also cite a dissent if they agree with its reasoning and conclusion and seek support for a change in the law. Although the majority opinion constitutes the judgment of the court, its legal weight can be dim i nished if a sufficient number of judges dissent. On issues that divide the courts and the country, there can be sharply divergent opi- nions on what the law is or should be. During the 1990s, for example, one divisive question before the U.S. Supreme Court was whether AFFIRMATIVE ACTION programs to redress the effects of past discrimination were constitution- al. In Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995 ), the U.S. Supreme Court held that Georgia’s congressio- nal redistricting plan, implemented to give minorities a strong voting block, constituted racial gerrymandering and violated the EQUAL PROTECTION Clause. However, the case was not an unqualified success for those urging the rejection of affirmative action. Five justices joined in the majority block ( PLURALITY)inthe case, and four justices filed dissents. With such a large minority, the dissents gained significance. Legal analysts monitor close cases such as Miller because a shift by one justice would signal a change in the law. Dissents are a relatively recent phenome- non. Chief Justice JOHN MARSHALL, who served on the Supreme Court from 1801 to 1835, urged unanimity on the Court to demonstrate that its opinions were the last word on an issue. Others believed that individual conscience should dictate a justice’ s opinions, without regard to unanimity. In its early years, most of the Supreme Court’s decisions showed little or no dissent. During the late nineteenth century and early twentieth century, as the Court became firmly established as the LAW OF THE LAND, more dissents appeared. Yet, even those who dis- sented during this period often recognized the importance of consensus opinions. For in- stance, Justice Oliver Wendell Holmes Jr., a frequent and famous dissenter, wrote a scathing dissent in LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), but not before he expressed his reluctance to do so: “I regret sincerely that I am unable to agree with the judgment in this case, and that I think it is my duty to express my dissent” (Lochner). International Longshore and Warehouse Union members rally in August 2002 in an attempt to keep the Bush administration out of their labor dispute with the Pacific Maritime Association. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 488 DISQUALIFY By the 1960s and 1970s dissents were an accepted part of the Court’s business, perhaps reflecting the fractious political and social climate of those years. One frequent dissenter during the mid–twentieth century was Justice WILLIAM O. DOUGLAS. During his 36 years on the Court, from 1939 to 1975, Douglas wrote 524 opinions of the Court, 154 concurring opinions, and an astounding 486 dissenting opinions. In addition, he dissented without opinion in 309 cases. Justice BENJAMIN N. CARDOZO, of the Supreme Court, defended those who disagree with the majority, writing that the dissenter is “the gladiator making a last stand against the lions.” A few justices raised their roles as dissenters to an art form. Justices William J. Brennan Jr. and THURGOOD MARSHALL displayed particular cour- age in opposition to the majority. During their long tenure on the Court, Brennan and Marshall were unwavering in their conviction that the death penalty violates the Constitution. By doggedly and relentlessly repeating their dissent, they sought to win others to their view that the law on CAPITAL PUNISHMENT should be changed. Together as well as separately, Brennan and Marshall wrote scores of dissents in death penalty cases. In so doing, they opposed clear precedent that supported the legality of capital punishment. However, both were convinced that they were justified in their continued opposition. Brennan felt that the intrinsic morality of the EIGHTH AMENDMENT superseded any right of individual states to impose capital punishment. He wrote, “It would effectively write the ( CRUEL AND UNUSUAL PUNISHMENT) [C]lause out of the BILL OF RIGHTS were we to permit legislatures to police themselves by having the last word on the scope of the protection that theclauseisintendedtosecureagainsttheirown overreaching.” Marshall’s opposition was less philosophical and more practical. He repeatedly pointed out that the application of the death penalty was arbitrary and unfair, and affected minorities disproportionately. He felt a responsi- bility to continue bringing this issue before the public and believed that most people, if suffi- ciently informed about all its ramifications, would find capital punishment “shocking, unjust, and unacceptable” ( FURMAN V. GEORGIA, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 [1972] [Marshall, J., dissenting]). Some legal analysts believe that dissents are an important part of the system of checks and balances. Justice Charles E. Hughes—who served on the Court from 1910 to 1916, left the bench to run for president, and then returned to the Court as chief justice from 1930 to 1941— wrote, “A dissent … is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have be en betrayed.” FURTHER READINGS Mello, Michael. 1995. “Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment.” Florida State Univ. Law Review 22 (winter). Neumann, Richard K. 2005. Legal Reasoning and Legal Writing: Structure, Strategy, and Style. Frederick, Md.: Aspen. Tushnet, Mark. 2008. I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon. CROSS REFERENCE Court Opinion. DISSOLUTION Act or process of dissolving; termination; winding up. In this sense it is frequently used in the phrase dissolution of a partnership. The dissolution of a contract is its RESCISSION by the parties themselves or by a court that nullifies its binding force and reinstates each party to his or her original position prior to the contract. The dissolution of a corporation is the termination of its existence as a legal entity. This might occur pursuant to a statute, the surrender or expiration of its charter, LEGAL PROCEEDINGS,or BANKRUPTCY. In domestic relations law, the term dissolu- tion refers to the ending of a marriage through DIVORCE. The dissolution of a partnership is the end of the relationship that exists among the partners as a result of any partner discontinuing his or her involvement in the partnership, as distinguished from the winding up of the outstanding obligations of the business. DISSOLVE To terminate; abrogate; cancel; annul; disintegrate. To release or unloose the binding force of anything. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISSOLVE 489 The dissolution of something is the act of disorganizing or disuniting it, as in marriage, contracts, or corporations. DISTINGUISH To set apart as being separate or different; to point out an essential disparity. To distinguish one case from another case means to show the dissimilarities between the two. It means to prove a case that is cited as applicable to the case currently in dispute is really inapplicable because the two cases are different. DISTRAIN To seize the property of an individual and retain it until an obligation is performed. The taking of the good s and chattels of a tenant by a landlord in order to satisfy an unpaid debt. Distrain is a comprehensive term that may be used in reference to any DETENTION of PERSONAL PROPERTY , lawful or unlawful. DISTRESS The seizure of personal property for the satisfac- tion of a demand. The process of distress, sometimes called distrain, began at COMMON LAW wherein a landlord had the right to confiscate the chattels of a tenant who had defaulted on a rent payment. Today, it is regulated by statute, and is used to mean the taking of property to enforce the performance of some obligation. A warrant of distress is a WRIT that authorizes an officer to seize a person’s goods. It is usually used in situations where a landlord has the right to obtain a LIEN on a tenant’s goods for nonpayment of rent. If PERSONAL PROPERTY is seized to enforce the payment of taxes and then publicly sold if the taxes are not subsequently paid, the sale is called a distress sale. Distressed goods are chattels sold at a distress sale. DISTRIBUTEE An heir; a person entitled to share in the distribution of an estate. This term is used to denote one of the persons who is entitled, under the statute of distributions, to the personal estate of one who is dead intestate. DISTRIBUTOR A wholesaler; an individual, corporation, or partnership buying goods in bulk quantities from a manufacturer at a price close to the cost of manufacturing them and reselling them at a higher price to other dealers, or to various retailers, but not directly to the general public. DISTRICT One of the territorial areas into which an entire state or country, county, municipality, or other political subdivision is divided, for judicial, political, electoral, or administrative purposes. The circuit or territory within which a person may be compelled to appear. Circuit of authority; province. A judicial district is a designated area of a state over which a court has been empowered to hear lawsuits that arise within it or that involve its inhabitants. A federal judicial district is an area of a state in which a federal district court sits to determine matters involving federal ques- tions or DIVERSITY OF CITIZENSHIP of the parties. A congressional district is a geographical subdivision of a state that elects a representative to Congress. A legislative district is a specific section of a state that elects a representative to the state legislatur e. DISTRICT AND PROSECUTING ATTORNEYS The elected or appointed public officers of each state, county, or other political subdivision who institute criminal proceedings on behalf of the government. Federal attorneys who represent the United States in prosecuting federal offenses are U.S. attorneys. A district or prosecuting attorney is the LEGAL REPRESENTATIVE of the state, county, or municipality, whose primary function resides in instituting criminal proceedings against violators of state or municipal penal laws. The law of the particular jurisdiction determines whether t hey are appointed or elected to office and their term of office. The legislature may, within the restrictions imposed by constitution or statute, prescribe the qualifications of the prosecuting attorney. He or she may be required to reside in the district or satisfy a particular minim um-age requisite. District attorneys usually must be attorneys-at-law who are licensed to practice in the state and, depending upon the jurisdiction, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 490 DISTINGUISH must have spent a specified number of years practicing law. The duty of the district attorney is to ensure that offenses committed against the public are rectified pursuant to the commencement of criminal prosecutions. He or she may exercise considerable discretion in ascertaining the man- ner in which the duty of district attorney should be performed. The prosecuting attorney, how- ever, must be fair and unbiased, and refrain from conduct that would deprive the defendant of any constitutional or statutory right. The legislature may regulate his or her functions within statutory or constitutional limitations. A district attorney determines when to initiate a particular prosecution and must exercise due diligence in conducting the prose- cution. The individual may neither restrain the GRAND JURY from considering charges by assert- ing that the government will not prosecute nor dismiss a criminal charge pending before it. He or she does, however, maintain control of criminal proceedings in the trial court. Statutes define the duties of the prosecuting attorney with respect to civil litigation. The respective powers of the district attor- ney and of the attorney general, the principal law officer of the state, are ordinarily disparate. Neither the district attorney nor the attorney general may impinge upon powers reserved exclusively to the other. A district attorney is immune from liability for damages incurred as a result of his or her acts or omissions that occur within the scope of official duties, although the person may be held liable for conduct in excess of such scope. Statutes prescribe the compensation of pro- secuting attorneys. A prosecuting attorney whose term is regulated by law cannot be removed or sus- pended from office, other than pursuant to the manner authorized by constitution or statute. The grounds specified by law govern removal. Mere misconduct committed in office, such as habitual intoxication, is usually an insufficient basis for removal. In some jurisdictions, howev- er, conduct that is entirely extraneous to official duties may reveal flaws in personal character that render the individual unfit to hold the office and subject him or her to removal. Suspension or removal may ensue from official misconduct or neglect of duty, such as the improper refusal to initiate criminal inves- tigations or prosecutions, or inept execution of such proceedings. Removal may also be justified on the basis of the prosecuting attorney’s failure to comply with the constitutional duties of disclosure imposed by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the GOOD FAITH or BAD FAITH of the prosecution.” Removal of a prosecuting attorney may also be predicated on his or her conferral of positions in the office to friends or relatives regardless of their qualifications. The removal process must comply with constitutional or statutory requirements. In some jurisdictions, the district attorney may be removed by the court in proceedings com- menced by the interested parties or by IMPEACH- MENT . The legislature, within constitutional limitations, may designate the nature of the removal proceeding. Statutes provide for the appointment of assistant district attorneys to render supplemen- tary services to the district attorney. Indepen- dent of statute, however, the courts frequently exercise discretionary power to appoint attor- neys to assist the prosecuting attorney in cri- minal cases. Statutes primarily govern the qualifications, salary, tenure, powers, and re- moval of such attorneys. Special prosecutors are attorneys appointed by the government to investigate criminal offenses involving officials of the executive branch, since the government cannot effectively investigate itself. CROSS REFERENCES Criminal Procedure; Due Process of Law; Prosecutor; Selective Prosecution. DISTRICT COURT A designation of an inferior state court that exercises general jurisdiction that it has been granted by the constitution or statute which created it. A U.S. judicial tribunal with original jurisdiction to try cases or controversies that fall within its limited jurisdiction. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISTRICT COURT 491 A state district might, for example, deter- mine civil actions between state residents based upon contract violations or TORTIOUS conduct that occurred within the state. Federal district courts are located in places designated by federal law, hearing cases in at least one place in every state. Most federal cases, whether civil actions or criminal prosecutions for violations of federal law, commence in district court. Cases arising under the Constitu- tion, federal law, or treaty, or cases between citizens of different states, must also involve an interest worth more than $75,000 before the district court can exercise its jurisdiction. The federal district co urts also have original and exclusive jurisdiction of BANKRUPTCY cases, and admiralty, maritime, and prize cases, which determine rights in ships and cargo captured at sea. State Courts are powerless to hear these kinds of controversies. A party can appeal a decision made in district court in the COURT OF APPEAL. CROSS REFERENCE Federal Courts. DISTRICT OF COLUMBIA “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten miles square) as may, by Cession of particular States, and the acceptance of Con- gress, become the Seat of the Government of the United States” (U.S. Const. Art. I, § 8). The U.S. Constitution, with this proclamation, left the legal formation of a national capital up to the U.S. Congress. To this day, the District of Columbia is neither a state nor a territory and remains under congressional jurisdiction. History The location of the national capital was born out of a political compromise between the northern and southern states after the United States had achieved its independence. The South feared that the North would have too much influence if the capital were placed in a northern city. The North demanded federal assistance in paying its Revolutionary War debt, some- thing the South was strongly against. ALEXANDER HAMILTON initiated a compromise whereby the federal government would pay off the war debt in return for locating the capital between the states of Maryland and Virginia on the Potomac River. In 1800 Virginia and Maryland ceded portions of land to the federal government. The citizens living in the new capital were required to give up all the political rights they had enjoyed as inhabitants of Maryland and Virginia. In return, Congress, which had exclu- sive power over the district, would allow them some form of self-government. In 1802 Con- gress called for an appointed mayor and an elected council in the district. By 1820 the election of the mayor was also permitted. This form of representative government lasted in the district until 1874, when Congress abolished the citizens’ right to vote for their local officials and established a three-person board of commissioners appointed by the president. For over one hundred years, the residents of the District of Columbia were denied the democratic right to elected local representation. Although residents of the district had always been required to pay federal INCOME TAX and serve in the military, their right to vote in presidential elections was denied until the 1961 passage of the TWENTY-THIRD AMENDMENT to the Constitution. This amendment granted the district a number of votes in the ELECTORAL COLLEGE , not to exceed the number given to the least populous state. Home Rule In 1967, through an executive order (Exec. Order No. 11379, 32 FR 15625, 1967 WL 7776 [Pres.]), President LYNDON B. JOHNSON did away with the three-member board of commissioners and appointed a mayor and a council for the district. In 1970 the district was given back its nonvoting delegate in Congress. But this still did not satisfy residents who demanded full self- determination. Congress then passed the District HOME RULE Act of 1973 (Pub. L. 93-198, Dec. 24, 1973, 87 Stat. 774), and restored to the citizens their right to vote for a local government. For the first time in exactly a hundred years, the residents of the District of Columbia were able to vote for a mayor and a 13-member council. The Constitution granted Congress com- plete legislative authority over the District of Columbia. Congress alone has the jurisdiction to expand the district’s powers over local government affairs. It also has the jurisdiction to contract those same powers. Congress, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 492 DISTRICT OF COLUMBIA through the Home Rule Act, dictated the legislative powers to the district council and the executive powers to the mayor. Advisory neighborhood commi ssions, which are groups elected by the residents, advise the council on matters of PUBLIC POLICY. Congress still retains ultimate legislative authority through its power to veto any of the district’s legislation. Statehood Besides the citizens of U.S. territories, district residents are the only U.S. citizens without full representation in Cong ress and with federal limitations on their own local government. Advocates of statehood rebel against such restrictions. They argue that because the district’s congressional delegate is not allowed to vote, residents are subject to a fundamental demo- cratic wrong, taxation without representation. They add that because Congress retains control over the city’s purse strings, city officials are powerless in raising more revenue. Federal restrictions on taxation have prevented the district from taxing commuters as have some other U.S. cities, which could have given the district a huge tax windfall. Opponents of statehood argue that the District of Columbia belongs to all U.S. citizens, and therefore all citizens shou ld have a say in how it is managed. Constitutionally, Congress has complete authority over the district, and to have it otherwise would require a CONSTITU- TIONAL AMENDMENT (supporters dismiss this argument, pointing out that 37 states were allowed into the Union through only a simple majority vote in Congress). If the district were to become an independent state, some oppo- nents argue, the federal government would have to abide by the laws of this new state. Opponents of statehood also maintain that the district’s power needs to be checked by Congress because of the district’s financial difficulties. The push toward statehood has become a partisan issue, with the DEMOCRATIC PARTY generally in favor of it and the REPUBLICAN PARTY generally opposed. One reason for this division is the political makeup of the city, which is An 1880 drawing of the District of Columbia by C.R. Parsons, Article 1, Section 8 of the U.S. Constitution grants Congress complete legislative authority over the district. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISTRICT OF COLUMBIA 493 predominantly Democratic. Statehood would add more Democratic members to the House and the Senate. When the Democrats won the White House in 1992, the stage was set for the statehood issue to move forward through the 103d Congress. On November 21, 1993, the Hous e consid- ered Bill 51, calling for the creation of New Columbia, the nation’s fifty-first state. Demo- crats spoke in favor of statehood, saying it would give D.C. residents the same benefits of citizenship that are enjoyed by other U.S. citizens. Republicans spoke out against it, saying the city was unable to govern itself. Republican sentiments carried the day, defeating the bill by a vote of 277–153. Legal Challenge to Voting Rights After Congress rejected the idea of statehood for the district, D.C. residents felt they had exhausted their legislative options for change. They explored other ways of increasing their influence in Congress, but again the fact that their representative could not vote in Congress posed a major roadblock. A group of residents sought to overcome this limitation by filing a federal lawsuit that challenged the status quo. Lois Adams and 75 other D.C. residents filed the lawsuit against the president and Congress, arguing that it was unjust that they pay taxes and defend the country in times of war, yet they could not send elected representa- tives to vote on taxes and war. They claimed that this deprived them of EQUAL PROTECTION of the law and denied them a republican form of government. They also argued that this depri- vation violated their due process rights and abridged their PRIVILEGES AND IMMUNITIES as citizens of the United States. A special three-judge panel heard the case but in the end rejected these arguments. In Adams v. Clinton, 90 F.Supp.2d 35 (D.C. 2000), the court addressed both jurisdictional and constitutional issues. Regarding jurisdiction, the executive and legislative branches co ntended that the court had no right to even hear the case because the plaintiffs raised issues that were not subject to review by the judicial branch. However, the court rejected the idea that the issues were political question s beyond its reach and reviewed the merits of the case. The court looked at the language of the Constitution, as well as history and legal precedent, in making is decisions. It first held that Article I of the Constitution repeatedly refers to “each state,” thereby demonstrating that the term did not refer generally to all the people of the United States but to citizens of individual states. Tying the right to Congressio- nal representation to statehood was reinforced by the fact that residents of U.S. territories cannot elect voting representatives to Congress. In addition, history and precedent revealed that the District of Columbia had never been considered a “state” for constitutional purposes. Therefore, the direct constitutional challenge had no merit. The court rejected an even more novel theory advanced by the plaintiffs that they were entitled to vote in Maryland elections because of their “residual citizenship.” This theory relies on the fact that residents of the land ceded by Maryland to form the district continued to vote in Maryland elections be- tween 1790 and 1801, when Congress assumed jurisdiction and provided for the district’s government. The court dismissed this claim, noting that a 1964 court decision had rejected the concept of residual citizenship based on the fact that former residents of Maryland lost their state citizenship when the District of Columbia separated from it. Finally, the court concluded that the Equal Protection Clause of the FOURTEENTH AMENDMENT could not be used to strike down another constitutional provision. Though the court found that Congress and the executive branch had failed to give a compelling reason for denying D.C. residents voting representatives, the denial was based on a provision of Article I. Unlike a statute that contains illegal classifica- tions, the constitution cannot be ruled uncon- stitutional. Therefore, D.C. residents had to convince Congress to either grant it statehood or pass a constitutional amendment that would allow voting representatives from the district. The Courts The courts of the District of Columbia were established by an act of Congress. Originally, federal courts heard controversies that arose in the District of Columbia. Disputes over federal or district law came under the jurisdiction of the federal district courts. Appeals went from the district courts to the Court of Appeals for the District of Columbia Circuit, and then to the U.S. Supreme Court. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 494 DISTRICT OF COLUMBIA Just as the legislative branch of the district government became less dependent on the federal system in the 1970s, so too did the courts. The district court system was completely reorganized under the District of Columbia Court Reform and CRIMINAL PROCEDURE Act of 1970 (Pub. L. 91-358, July 29, 1970, 84 Stat. 473; Pub. L. 99-573, § 17, Oct. 28, 1973, 100 Stat. 3234, 3235). The U.S. District court no longer has jurisdiction over criminal or civil actions occurring under D.C. law. These cases are now heard by the district’s new trial court, the Superior Court. The District of Columbia Court of Appeals has jurisdiction to review decisions of the Superior Court. FURTHER READINGS Harris, Charles Wesley. 1995. Congress and the Governance of the Nation’s Capital: The Conflict of Federal and Local Interests. Washington D.C.: Georgetown Univ. Press. Kofie, Nelson. 1999. Race, Class, and the Struggle for Neighborhood in Washington, D.C. (Studies in African American History and Culture). New York: Routledge. Markham, Steven. 1998. Statehood for the District of Columbia: Is it Constitutional? Is it Wise? Is it Necessary? Washington, D.C.: National Legal Center for the Public Interest. Schrag, Philip G. 1985. Behind the Scenes: The Politics of a Constitutional Convention. Washington D.C.: Georgetown Univ. Press. CROSS REFERENCE States’ Rights. DISTRICT OF COLUMBIA V. HELLER The Supreme Court’s decision in District of Columbia v. Heller (554 U.S. ___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 [2008]) was the most significant SECOND AMENDMENT decision in U.S. history. In a 5–4 decision, the Court affirmed a decision by the D.C. Circuit Court of Appeals to strike down a ban on handguns in the District of Columbia, ruling that the Second Amendment guarantees an individual the right to bear arms. Gun rights activists hailed the decision, while critics argued that Justice ANTONIN SCALIA, who wrote the majority opinion, misread the words of the amendment to reach the conclusion. Concerned with widespread use of hand- guns in violent crimes, the District of Columbia in 1976 enacted a series of statutes that forbid or severely restricted the possession of firearms. Under these statutes, an applicant was requi- red to r egister a handgun with the D.C. city police department, and in m ost instances, the registration was prohibited. The statute also generally prohibited a person from carrying a pistol without a license. For those with lawfully registered handguns, another statute required the owner to keep the firearm unloaded and disassembled or otherwise bound by a trigger lock. The clear intention behind the statute was to decrease gun-related crime by limiting the number of guns on the street. However, data comparing the current crime rates with those in 1976 showed that the GUN CONTROL law did not have the desired effect. One opponent of the gun control law noted that the HOMICIDE rate in the District of Columbia was 72 percent higher in 2001 than it was in 1976. Howe ver, at least one major public health study contradicted this result, conclud- ing that the D.C. suicide and homicide rates dropped after the b an was adopted. The Second Amendment provides, “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.” Historically, the Supreme Court focused its Second Amendment interpretation to allow states to maintain their own militias separate from federally controlled militia. In United States v. Cruikshank (92U.S.542,23L.Ed.588[ 1875]), the Court declared that “the Second Amend- ment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.” In more recent years, however, lower courts reconsidered the scope of this right. Courts provided extensiv e analysis of both the history and the text of the amendment to determine how this amendment should apply. For exam- ple, the Fifth Circuit Court of Appeals in United States v. Emerson (270 F.3d 203 [5th Cir. 2001]) determined that the right to bear arms was an individual right bestowed upon each citizen, rather than a collective right of the people through their states to maintain militias sepa- rate from the federal military. Other states and commentators have argued that the Founders only intended for the Second Amendment to apply to militias, because mainta ining a state militia was a major issue at the time the Second Amendment was ratified. Six residents of the District of Columbia challenged the law. Four of the plaintiffs wanted to have guns in their h omes to provide GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISTRICT OF COLUMBIA V. HELLER 495 SELF-DEFENSE.AnotherPLAINTIFF wanted to keep a gun assembled in his home without a trigger lock. A final plaintiff, Dick Heller (the named plaintiff in the Supreme Court action), wanted to possess a gun both at home and in his position as a special police officer. The U .S. distric t court for the District of Columbia ruled in 2004 that citizens do not have the right to challenge a law based on the Second Amendment. In 2007 the U.S. Court of Appeals for the District of Columbia sparked a major debate when it ruled that the D.C. restrictions on handguns violated the Second Amendment. In a lengthy opinion by Judge Laurence H. Silber- man, the court ruled that the Second Amend- ment provided an individual right and that the D.C. statute violated this individual right. Silberman based his reasoning primarily on the text of the amendment itself (Parker v. Dist. of Columbia, 478 F.3d 370 [D.C. Cir. 2007]). The Supreme Court granted CERTIORARI on November 20, 2007, to review the case. Nearly 48 parties filed amicus briefs with the Court, arguing either in favor of gun rights or in favor of gun control laws. Justice ANTHONY KENNEDY asked a series of questions focused on the need to keep arms in a home for the purpose of self-protection. At one point in the discussion, Kennedy suggested that the amendment had in mind the right of the “remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies.” Other justices, including Justice STEPHEN BREYER, suggested that the ban on handguns might actually interfere with self- defense of a home, noting that the District of Columbia allows residents to keep rifles and shotguns in their homes for self-defense. In a 5–4 decision, the Court affirmed the ruling of the D.C. Circuit. Justice Antonin Scalia’s majority opi nion focused heavily on the text of the amendment itself. Scalia concluded that the amendment consists of two parts, including a prefatory clause and an operative clause. According to Scalia, the amendment could be rephrased to read as follows: “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Scalia noted that the Second Amendment is one of three places in the BILL OF RIGHTS where the phrase “the right of the people” is used. The two other instances include the assembly and petition clause of the FIRST AMENDMENT and the SEARCH AND SEIZURE clause of the FOURTH AMENDMENT . In each instance, Scalia noted, the phrase refers to an individual right, rather than a collectiv e right. Moreover, Scalia noted that prior versions of the Second Amendment clearly referred to the righ t to bear arms as an individual right. Thus, the Court’s first major conclusion was that the Second Amendment indeed provides individual, rather than collec- tive, rights. Based on this conclusion, the Court deter- mined that the D.C. handgun ban and the trigger-lock requirement both violated the Sec- ond Amendment. The total handgun ban effectively prohibits an entire class of “arms” that citizens use for lawful self-defense, accord- ing to the Court. Moreover, the majority determined that the trigger-lock requirement makes it impossible for citizens to use guns for self-defense, thus rendering this restriction to be unconstitutional as well. Justices JOHN PAUL STEVENS and Stephen Breyer dissented, and their dissents were joined by Justices DAVID SOUTER and RUTH BADER GINSBURG . Justice Stevens concluded that even though the Second Amendment protects indi- vidual rights, prior precedent establishes that the amendment “does not curtail the Legisla- ture’s power to regulate the nonmilitary use and ownership of weapons.” Justice Breyer agreed with Stevens, but also concluded that the amend- ment’s protections are not absolute and that the government may regulate the use of guns. FURTHER READINGS Charles, Patrick J. 2009. The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court. Jefferson, N.C.: McFarland. Doherty, Brian. 2008. Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment. Washington, D.C.: Cato Institute. Halbrook, Stephen P. 2008. The Founders’ Second Amend- ment. Stanford, Calf.: Stanford Univ. Press. DISTURBANCE OF PUBLIC MEETINGS It was a MISDEMEANOR at COMMON LAW to be guilty of conduct that tended to disturb a public assembly, though the prosecution, in most instances, was required to prove that the distur- bance was caused wantonly or willfully. In most jurisdictions there is statutory crime for such conduct and the disturbance need not be so turbulent as to constitute a riot. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 496 DISTURBANCE OF PUBLIC MEETINGS DISTURBANCE OF THE PEACE An offen se constituting a malicious and willful intrusion upon the peace and quiet of a community or neighborhood. The crime is usually committed by an offensive or tumultuous act, such as the making of loud or unusual noises, or quarreling in public. The t erm is similar in meaning to BREACH OF THE PEACE ; however, the latter is generally a broader term, e ncompassing all violations of public peace and order. It can al so be a form of DISORDERLY CONDUCT and is similarly punishable upon convic- tion by a fine, imprisonment, or both. DIVERS Several; any number more than two; different. Divers is a collective term used to group a number of unspecified people, objects, or acts. It is used frequently to describe property, as in divers parcels of land. DIVERSION A turning aside or altering of the natural course or route of a thing. The term is chiefly applied to the unauthorized change or alteration of a water course to the prejudice of a lower riparian, or to the unauthorized use of fun ds. A program for the disposition of a criminal charge without a criminal trial; sometimes called operation de nova, intervention, or deferred prosecution. The disposition is conditional on the defen- dant’s performing certain tasks or participating in a treatment program. If the conditions are successfully completed, the charge is dismissed. But if the accused does not meet his or her obligations, prosecution may be instituted. CROSS REFERENCE Riparian Rights. DIVERSITY OF CITIZENSHIP A phrase used with reference to the jurisdiction of the federal courts which, under the U.S. Constitu- tion, Art. III, § 2, extends to cases between citizens of different states designating the condition existing when the party on one side of a lawsuit is a citizen of one state and the party on the other side is a citizen of another state, or between a citizen of a state and an alien. The requisite jurisdictional amount must, in addition, be met. DIVERSITY OF CITIZENSHIP is one of the factors that will allow a federal district court to exercise its authority to hear a lawsuit. This authority is called diversity jurisdiction. It means that a case involving questions that must be answered according to state laws may be heard in federal court if the parties on the two sides of the case are from different states. No matter how many parties are involved in a lawsuit, there must be complete diversity in order for the federal court to exercise this type of authority. If a single PLAINTIFF is a citizen of the same state as any defendant, there is no diversity and the case must be pursued in a state court. Being a citizen of a state is something more than simply owning property or being physically present within the state. Citizenship means that the individual has a residence in the state and intends to have that residence as his or her present home. Residence plus this intent makes that place the individual’s domicile, and a party can have only one domicile at a time. Citizenship does not mean that the individual must swear that he or she never intends to move, but the residence and the intent to consider it home are essential. Students, prisoners, and service personnel can establish a domicile in a state even though they are living in it involuntarily or temporarily. Corporations are citizens of the state in which they are incorporated and also of the state where they maintain their principal place of business. This citizenship in two places has the effect of narrowing the number of cases that qualify for a federal court’s diversity jurisdiction because a corporation’s citizenship is not diverse from the citizenship of anyone else in either of those two states. The citizenship of each party must be determined as of the time the lawsuit is commenced. A party’s domicile at the time of the events that give rise to the CAUSE OF ACTION or a change of domicile during the course of proceed- ings does not affect the court’s jurisdiction. This rule, of course, gives a person contemplating a lawsuit the opportunity to change his or her domicile just before serving legal papers that start an action. This tactic has been challenged on a few occasions on the ground that it violates another federal law that prohibits COLLUSION to create federal jurisdiction. Generally, the courts have ruled that a plaintiff’s motives in moving to a new state are not determinative, and the only question is whether in fact the plaintiff’s domicile GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVERSITY OF CITIZENSHIP 497 . residents of the District of Columbia challenged the law. Four of the plaintiffs wanted to have guns in their h omes to provide GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISTRICT OF COLUMBIA. jurisdiction, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 490 DISTINGUISH must have spent a specified number of years practicing law. The duty of the district attorney is to ensure that offenses. under the District of Columbia Court Reform and CRIMINAL PROCEDURE Act of 1970 (Pub. L. 91 -35 8, July 29, 1970, 84 Stat. 4 73; Pub. L. 99-5 73, § 17, Oct. 28, 19 73, 100 Stat. 32 34, 32 35). The U.S. District