Substantive Due Process

Question 1

Fundamental Rights: Privacy

Answer 1

• The right to marry (including same-sex marriage)
• The right to procreate
• The right to custody of one’s children
• The right to keep the family together
• The right to control child’s upbringing
• The right to contraceptives
• The right to refuse medical treatment

NO fundamental right to:
- Physician-assisted death
- Abortion

NOTE: The right to privacy protects a right to engage in private consensual homosexual activity, but level of scrutiny is unknown

Question 2

Fundamental Rights: Second Amendment Right to Bear Arms

Answer 2

“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.”

The Second Amendment protects the right to have handguns in the home for the sake of security.

State laws that condition having a concealed weapon in public on needing to show a safety need for a permit are unconstitutional.

State laws regulating guns are allowed only if they were a type of regulation that historically existed.

Question 3

Fundamental Rights: Right to Travel

Answer 3

Laws that prevent people from moving into a state must meet strict scrutiny

Durational residency requirements must meet strict scrutiny

Restrictions on foreign travel need meet only the rational basis test

Question 4

Fundamental Rights: Right to Vote

Answer 4

Laws that deny some citizens the right to vote must meet strict scrutiny, BUT regulations of the electoral process to prevent fraud only need be “desirable on balance”

• One-person-one-vote must be met for all state and local elections.
• At-large elections are constitutional unless there is proof of a discriminatory purpose
• The use of race in drawing election district lines must meet strict scrutiny
• Counting uncounted votes without standards in a presidential election violates equal protection

Question 5

Right to Education

Answer 5

NOT a fundamental right