D.C. v. Heller, Part II

As SCOTUS boldly moves into the controversial arena of 2nd Amendment interpretation, some believe that this could be the beginning of a Constitutional revolution...

Lyle Denniston at SCOTUSblog says:

It is a far more ambitious project than may be widely recognized. If it ultimately were to succeed, Congress’ power to spend under the General Welfare Clause would be severely curtailed, economic populism — freedom, especially, for small merchants from pesky government rules — would have a new birth, the bundle of ownership rights in property would expand markedly, the power at all levels of government to intervene to advance progressive social causes would be shrunken considerably — just as a few examples.

Sounds good to me!

A commenter added these interesting remarks...

Philosophical shifts in legal jurisprudence have always come at the tail end of the electoral shift that produced the justices who formulated the doctrinal change. There is a political realignment in America every forty years or so....The Reagan Revolution is almost 30 years old. The views of Roberts, Alito, and Scalia, are representative of their political icon: Reagan and to a lesser degree Bush. But the Reagan era is over or soon will be. Whether that is good or bad is irrelevant. The laws of political cycles are immutable. There is nothing that anyone can do about it. Five years from now, the Roberts court will most likely produce conservative opinions that a loose majority believes conflicts with their values and does not reflect the way America should be governed.

Indiana Voter Law

It always unsettles me somewhat when it is so much easier to vote, than anything else that has to do with the state of Pennsylvania. When we moved here, I had to drive to the DMV three different times because I didn't have the 47 types of ID required. But, to vote...just sign your name!

Indiana has tried to make requirements stiffer by requiring photo ID's be shown prior to voting. This, of course, has ended up in the SCOTUS via a consolidated cases of Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita.

"At issue... is the constitutionality of a 2005 Indiana law that voters who show up at the polls without a photo ID will be allowed only to cast a provisional ballot, to be validated later at another place only if they can travel there and then prove identity. It has been upheld by the Seventh Circuit Court, leading to appeals to the Supreme Court by Democrats or their state party apparatus."

What problem to the Dems have with photo ID? They believe that placing requirements on voting equates to a Republican conspiracy to institute poll taxes affecting the "indigent, elderly and minority."

The Dems have really dumbed down the definition of disenfranchisement from someone desiring to vote and being prevented from doing so to a restriction that may prevent someone from voting who hasn't done due diligence to figure out what the requirements are.

The Indiana law is a bit onerous...it required a photo ID with an expiration date. A photo ID is more difficult to attain for elderly people who no longer drive, and an expiration date severely limits the options available to use as proper ID.

However, the states retain the Constitutional right to enact such policies as they see fit to ensure a republican form of government. This case attempts to mount a facial challenge to the Indiana law. This case, though possibly harming some, does not rise to the point at which the Justices will say that this law is "always, and under all circumstances, unconstitutional."

Stubborn Facts makes a point about disenfranchisement.

Report from Alison Hayward, assistant professor of law at George Mason who was there, then engaged in a lively discussion of the case.

D.C. v. Heller

This is the 2nd Amendment case that SCOTUS has agreed to hear. For background, see my previous post.

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.

For an excellent discussion of the Constitutional issues in this case, read this paper by Nelson Lund, professor at George Mason University.

Below is the gist of his argument:

• The precedent established in Miller will have to be overturned because it is basically obtuse. The Miller test says that weapons that could be used in a militia cannot be banned. Lund makes that point that this test would allow Stingers to be stored in private homes. Therefore, he sees a forthcoming rejection of this test.
• The grammatical structure of the 2nd Amendment
• the "prefatory phrase" (a well-regulated militia) is an absolute construction, which means that it is giving information surrounding the circumstances of the main clause. The "operative clause"(right of the people to keep and bear arms shall not be infringed) is a command. Nothing in this command is qualified by the prefatory phrase, i.e. the phrase "well-regulated militia" has no effect on the meaning of the operative clause.
• There are other examples throughout the Constitution (Patent & Copyright Clause, Preamble) that demonstrate a grammatical structure that intentionally limits certain rights. These devices were decidedly not used in the 2nd Amendment.
• "Instead, the Second Amendment protects the right of the people to keep and bear arms, grammatically unqualified by any militia limitation."
• Women
• As citizens, women's rights to keep and bear arms has always been force, even though they were not allowed to serve in the militia.
• Even if you speciously limit Constitutional rights only to men (since women couldn't vote), what about those over the age of 45 who were not able to serve in the militia? Were they deprived of the right to keep and bear arms? Obviously not.
• So what's the point in mentioning the militia?
• Article I, Section 8, Clause 16 gave Congress virtually unlimited authority to regulate the militia. This clause prevents Congress from disarming the people, even if it decides to eliminate the militia.
• Political Considerations
• Lund understands the mention of militias as a recognition of the then-current fear of standing armies. For those who say that the founders wouldn't put something like that into the Constitution, he presents the 10th Amendment -- the sole purpose of which was to ease state fears of a national government.
• Conclusion
• "The purpose of the Second Amendment emerges readily from the Constitution’s founding principles."
• "In liberal theory, the most fundamental of all rights is the right of self-defense."
• "The exchange of rights that constitutes the social contract does not diminish the central importance of the right to self defense."
• "The foregoing analysis demonstrates the unsoundness of a constitutional rule that a right to possess rifles and shotguns—kept in a condition suitable for militia purposes but not for immediate self defense—is sufficient to satisfy the Second Amendment. The grammatical structure of the provision dictates that its preamble not be read to qualify its operative language. The operative language, in turn, protects a right that belongs to many citizens other than those who are eligible for militia duties. Furthermore, there is strong evidence, in the principles on which the Constitution is based and in the public records of the founding period, that the right of our citizens to keep and bear arms is protected for the sake of self-defense generally, not merely to facilitate militia activities."

HT: David at SCOTUSBlog

Boumediene habeas corpus debate

The government, in response to the plaintiff's brief in Boumediene v. Bush, which claimed a "common law constitutional right" to habeas corpus, has issued a supplemental brief to contradict the argument for this particular interpretation.

From Ben at SCOTUSblog:

The Court has said that the scope of habeas rights at the current time depends in part upon their meaning in past history, especially in 1789. At that time, [U.S. Solicitor General Paul D.] Clement argued in the new brief, there was a common-law rule that a confined individual seeking release “was not permitted to controvert the facts” the government had cited for the confinement. That rule, along with geographic limits that the government argues restrict habeas rights, would have kept today’s detainees from “obtaining anything like the review” they will receive if they challenge their detention in the D.C. Circuit Court under the Detainee Treatment Act.

Ben left out the third reason Clement cited for the detainees lack of access to habeas. The brief says, "That common law rule, together with the geographic limits on the writ and the historical unavailability of habeas to 'prisoners of war,' would have precluded petitioners from obtaining anything like the review they receive under the Detainee Treatment
Act of 2005."

This historical unavailability assertion was supported by saying:

Post-1789 British cases underscore that the British courts did not view prisoners of war as a specialized class, but used the phrase generically to refer to enemy combatants. Indeed, the “prisoner of war” label was even extended to a non-combatant German national who had been resident in England for 25 years. See, e.g., The King v. Superintendent of Vine St. Police Station, 1 K.B. 268, 278 (1916) (Eng.) (If the executive “represents to this Court that it has become necessary to restrain the liberty of an alien enemy within the kingdom, and treat him as a prisoner of war, he must be regarded for the purposes of a writ of habeas corpus as a prisoner of war.”).

New brief in the Boumediene case

Interesting development in that the detainees in Bouemediene v. Bush are arguing that they have a "common law constitutional right" to habeas corpus.

Basically, they are saying the common law (which is widely understood to be the basis of our current system -- see Blackstone's Commentaries on the Laws of England -- a book said to be on the desk of every person during the Constitutional Convention) embraced the principles of their case prior to the creation of federal judiciary. Therefore, this right precedes the authority of Congress to change it.

They are in effect asking the court to equate the right of habeas to natural right as written in our Declaration - our primary organic document. The difference, of course, is that natural rights have no suspension clause, that is to say, no time at which the legislature is authorized to withdraw recognition of the right.

Although common law arguments are always interesting, they carry small weight simply because our system, though built on common law and carries with it many of the principles, is a different system. The question continues to turn on whether or not these particular detainees even have the right of habeas given their circumstances and identity, not necessarily whether or not Congress has the right to remove it.

Constitutional Rights For Everyone!

There was a fascinating argument before SCOTUS today. The case of Boumediene v. Bush, in which a detainee at Guantanamo Bay is suing for a hearing under the Constitutional right of habeas corpus, literally "you have the body", meaning that under the Constitution, an individual has a right to face his accusers in a court of law observing due process. (How's that for a run-on sentence?)

First, we need to look at who is bringing the case...an enemy combatant - a new term devised to define those fighting against our nation without the sanction of a recognized nation. Think Barbary pirates, Indian wars, and in some instances, Vietnam.

What is twisting up everyone's panties, however is that this individual is claiming that he is not a combatant, but that he got caught up in a raid and has been held without a trial for six years.

On the face of it, this is not right. I mean, how would you like to be swept away by the government and separated from your family for six years, just for being in the wrong place at the wrong time?

Wait! Remember, this is not about whether it is a nice, good or edifying thing to be incarcerated for six years. It is about whether or not a non-citizen, let alone an enemy combatant has Constitutional rights. Whenever an individual engages in a social contract with a nation, either through birth or naturalization, the rights and duties of the nation are bestowed. They are not bestowed merely by claiming them.

Unfortunately, some of the Justices didn't seem to want to dwell on the issue of whether or not a non-citizen should be granted Constitutional rights--they see it as a foregone conclusion. Many see being on US soil as being the only requirement to grant the writ (a major reason why they haven't been moved). Justice Kennedy pretty clearly takes this position and is clearing the path to his forthcoming decision by saying the there is no substantive difference between US soil and GTMO.

They are also looking at whether or not the military tribunals that were put in place are an adequate substitution for habeas. This is patently silly because if they don't have a right to habeas, there is nothing in the Constitution that says they should have some sort of substitute. Therefore, SCOTUS should keep its nose out, as this becomes a political, not a judicial issue.

Andrew McBride, in a fascinating debate on the issues in this case over at the Federalist Society says,

The idea that the judiciary would have any role in deciding whether foreign nationals were enemy combatants would have been utterly incomprehensible to our Framers. These were quintessentially “political questions” having elements of both war powers and foreign affairs beyond judicial ken or competence.

The right to invoke the constitutional writ of heabeas corpus (and the constitutional guarantees it is designed to help enforce) is limited to those who have voluntarily created some peaceable relationship with this body politic. Someone whose only connection to this country is having been captured by our military while trying to harm it or its interests has no more right to invoke the writ of habeas corpus than he does to invoke a Second Amendment right to bear arms.

Also Brad Berenson,

To extend constitutional protections to them [enemy combatants] on this basis would be to reward the very civilian disguises that make their belligerency unlawful and so uniquely dangerous to real civilians, ours and other nations'.

I have little confidence that SCOTUS will come down on the right side in this one, judging from Kennedy's questions. Probably the decision will be mixed, with some details being handed back to the circuit court.

What the SCOTUS Justices have to decide...

here's a very weighty matter...via scotusblog:

Docket: 07-284Case name:
Maryland v. PaulinoIssue: Whether the Fourth Amendment permits police to search for drugs hidden between a suspect’s buttocks cheeks during an arrest.

Thomas Understands

This video on Clarence Thomas is a surprisingly evenhanded discussion with the Justice...it always helps when people follow Abraham Lincoln's adage that it's always better to talk to people rather than about people. Perhaps Steve Kroft from CBS found this to be true. See the video here and here. The first video gives background to his life, and the second deals with the Anita Hill accusations and some of his thinking.

I've always greatly admired the Justice for his clear-headed opinions. Watch his reaction to the Senate panel -- "high-tech lynching." Later, notice how he has a clear understanding and concern for the effect on the country..."who won?"

His assertion that "It is always worth it to stand on principle...wrong is wrong, even if it's over a penny." This is one reason why I respect him so much. Read this dissenting opinion of the case that struck down the partial birth abortion ban and see what you think about his clear-headed, straightforward talk.

"The Constitution is what matters, not my personal opinions, whatever they may be..." See my opinion in a previous post:

Scott v. Harris

In a decision handed down on Monday, SCOTUS determined that it is constitutional for a policeman to run a fleeing motorist off the road. That man, who was fleeing at night when there was no innocent pedestrians around to be put at risk, is now a quadripelegic because he crashed his car after he was run off the road. Does that sound right to you?

You need to think about what is being stated...it is NOT it is "right" or "prudent" or "nice" or "politically correct" or anything other than "constitutional." This is where most people get caught up when talking about court opinions.

The constitutional issue was whether or not the officers violated the fleeing person's 4th amendment protection against unreasonable seizure, claiming that by running him off the road they were being "unreasonable." The high court decided that what the officers did was not unreasonable at all, therefore, he has no case.

Pretty clear cut when you limit yourself to the law and not engage in the emotions of the case.