Monday, March 31, 2008

How the Court Should Decide Heller (Part Two)

A while ago I offered my thoughts on how the Court ought to decide the individual rights vs. collective rights dispute in Heller, concluding that the Second Amendment does indeed protect individual rights to keep and bear arms. (n1)  Now, allow me to complete my pseudo-analysis of the case by discussing the substantive standards I believe the Court should apply to the District of Columbia's gun regulations and the conclusions the Court should reach about the constitutionality of those regulations.

I am not arrogant enough to pretend to offer a comprehensive and authoritative statement of the all the constitutionally-derived standards and rules that comprise the true legal meaning of the Second Amendment.  However, I will be brave enough to set out a (very) rough and tentative framework for applying the Amendment.  To put it directly:  A gun regulation is constitutional under the Second Amendment if (1)  it concerns firearms that are not similar in role to those in use at the time of the framing of the Amendment, (2) if it places limited and reasonable restrictions on the classes of people who can possess firearms, or (3) if it places reasonable restrictions on the purchase, storage, or carrying of firearms.

The first category of regulations mentioned survive scrutiny under the Second Amendment because they do not regulate "arms" within the meaning of the Amendment.  Of course, the difficulty arises in determining which sorts of modern weapons are and are not "arms."  The key to resolving this, I think, is to look to how firearms were used at the time of the framing.  That is, we should inquire into the nature of an arm, as the Constitution uses the term.  Firearms at the time of the framing were personal weapons: the squad-based highly portable machine guns of today, or even the Gatling Guns of the 19th century, had no equivalent.  Moreover, when firearms were used -- whether for military purposes, for self-defense, or for hunting -- they were used (almost without exception) overtly: guns made to evade detection (such as plastic guns meant to undetected by metal detectors) or silenced weapons had no equivalent.  On the other hand, the vast majority of modern pistols, rifles, and shotguns are fairly equivalent to their 1780's era predecessors in their personal nature and the functional overtness of their possession and use.  Certainly, not all modern firearms can be so clearly classified in one category of another, but the "personal and overt" standard seems like a decent starting place for discerning what is a constitutionally-protected arm.

The second and third categories of permissible regulations are based upon implied exceptions to what constitutes "infringement" of the right to keep and bear arms under the Amendment.  As was discussed in the Heller oral argument, in pre-framing Anglo-American law the right to possess arms was often denied to certain classes of people.  The example of this that most immediately leaps to my mind is the limitation of the right to own arms in the English Bill of Rights to Protestants; in the immediate aftermath of the Glorious Revolution denying Catholic Englishmen the right to own arms was just fine by Parliament.   More directly importantly for application of the Second Amendment, pre-enactment English law (as collected by Blackstone) assumed that government could make reasonably bar limited classes of people from owning arms without "infringing" on the general right to own arms.  Thus, regulations that, for instance, prevent violent felons or the severely mental ill from owning firearms do not infringe on the constitutional right to possess arms.  (n2)

The danger with recognizing the "certain classes of people" implied exception to the Second Amendment is the same with any implied exception: that the scope of the exception will be defined so broadly as to greatly shrink or essentially destroy the scope of the general right.  One may answering this by offering that only "reasonable" class-of-owner limitations are constitutional.  But of course "reasonable" is a term much abused in American law.  I think a more useful formulation is that governments in the U.S. (n3) may implement narrowly tailored regulations to keep firearms from classes of persons who may be unusually likely, relative to the overall population, to use firearms to endanger themselves or others.  The keys to that standard are the narrow tailoring requirement and the "unusually likely" provision; while governments may ban limited groups (such as felons or the insane) from owning firearms they may not prohibit vast swaths of population from owing arms based on a generalized public safety justification.

Finally, regulations are permissible under the Second Amendment if they reasonably restrict the purchase, storage, or carrying of arms.  Here, we face some quite tough problems in applying the Second Amendment.  The is little doubt from the pre-enactment history of Anglo-American law that governments imposed many and various restrictions on the how firearms could be acquired, kept, and used and that such restrictions were not viewed as infringing the general right to possess arms.  Thus, we have another implied exception to the Second Amendment for such regulations, and also the problem of outlining that exception in a way that is sufficiently limited so as not to swallow the general right.

We may use "reasonableness" again, but again defining reasonableness is a problem.  Indeed, it is much harder problem here that the one discussed above because of the vastly different kinds of firearm regulations that U.S. governments have imposed that fall within this third category.  How, for instance, does one delineate a standard  that can assess the reasonableness of both a prohibition against carrying concealed firearms in public places and a requirement that all gun owners store their firearms with trigger locks in place?  The best answer to that, I think, begins from the recognition that imposing temporary delays or mild inconveniences on the possession of firearms is quite different from banning ownership of firearms.  Governments do have legitimate interests in preventing gun accidents, protecting public safety, and the like, and regulations that pursue those aims without imposing a ban or de facto ban on the ownership of arms are permissible.  Admittedly, this is an imperfect test.  But probably about as good of one that can be applied to all of the types of "purchase, storage, carry" regulations that are out there.  Moreover, remember that in undertaking analysis of particular gun regulations courts would be able to analogize to specific gun regulations that were clearly permitted or considered verboten in pre-Second Amendment Anglo-American as an interpretive aid.

With all of the above being said, we come to the validity of the actual gun regulations at issue in Heller:  D.C.'s ban of the ownership of handguns and its requirement that rifles and shotguns either be stored with trigger locks in place or in a way that makes them immediately inoperable (eg. disassembled).  I think both questions, assessed under the standards outlined above, are actually fairly easy. If the Second Amendment is to have any bite at all, a categorical ban on the possession of handguns cannot be considered a reasonable "purchase, storage, carry" regulation.  On the other hand, from what I know of the trigger lock provisions in question I think they ought to be largely or entirely upheld.  If indeed gun owners have the option of locking their weapons with inexpensive devices that can be removed in a matter of seconds it is difficult to see how that the requirement is equivalent to a de facto ban on ownership.  In my view, the major difficulties the Court faces in Heller relate to beginning to discern the broad standards that should be applied in Second Amendment cases, not to actual application to the facts at hand.

It must be admitted, however, that many future cases brought under the Amendment will be pose problems that require more intensive parsing of facts.  I am particularly thinking of cases addressing the validity of laws that prohibit possessing firearms that have certain types of functionality.  The man-portable machine guns mentioned above are one example.  As discussed,  I'm sure these would not be considered arms within the meaning of the Second Amendment (and thus could be banned).  But what about semi-automatic "assault rifles" (so-called) like those banned during the Clinton administration?  What about, perhaps, even full automatic rifles?  These would present closer questions than the D.C. regulations now at issue, and it will be very interesting to watch courts answer them. (n4)

For now, however, as the Chief Justice pointed out in the Heller argument perhaps we should stick at least somewhat close to addressing the case at hand.  In the interest of not dragging this piece out any longer (and of not turning from offering tentative views to offering ill-though tout views) I shall leave it at that for now.


n1:  I refer to "possession," "ownership," and "keeping and bearing" arms interchangeably here. 

n2:  This sort of implied exception to a right is recognized regarding many protections contained in our Bill of Rights (as was mentioned in the Heller argument, think of the implied exception for libel to the First Amendment's protections).

n3:  I use "governments in the U.S." because although Heller only concerns federal regulations the protections contained in the Second Amendment will almost certain be incorporated to the states (and, by extension, localities) if the Court concludes in Heller that the Amendment offers has any significant force at all.

n4:  Of course, the main reason that the Solicitor General does not fully support affirming the D.C. Circuit's opinion in the case is that the Administration fears that the lower court's reasoning, if entirely adopted by the Supreme Court, might call into question the validity of federal prohibitions against buying machine guns.

Saturday, March 29, 2008

I Haven't Forgotten About Heller

The second part of my analysis of how the Court should decide Heller (aka the D.C. guns case) is almost ready for posting.  What I first started last week as a shorter follow up to Part One is clocking in at about 1,200 words right now.  It will be up tonight or tomorrow.

That brings me to my new poll question: what do you think of the longer (let's say, +500 words) pieces on this blog.  Consider this a chance to influence how I'll run this blog going forward, meaning whether I'll continue my current mix of content, go with fewer long pieces and more posts, or go with more long pieces and fewer total posts.

By the way, FYI in the poll recently closed 60 percent of respondents thought that the Court should strike down some of the gun regs at issue in Heller and uphold others (presumably the trigger lock requirements), while 40 percent thought that the Court should declare them all unconstitutional.

Another Reason to Like the New AG

This week, new Attorney General Michael Mukasey, upholding a tradition that had been neglected by his last two predecessors, argued a case before the Supreme Court.  A review of his performance (in U.S. v. Ressam) can be found here; the transcript of the argument can be found here.

Thursday, March 27, 2008

A Bit About Medellin v. Texas

On Tuesday, the Supreme Court handed down its decision in Medellin v. Texas.  The case presented some interesting questions about the interpretation of treaties and (more directly relating to the proposes of this blog) presidential powers to implement U.S. treaty obligations.

In 1993, José Ernesto Medellín was arrested and charged with a brutal rape and murder in Texas.  Police informed Medellin of his rights under the Constitution but did not tell him about his right, under the Vienna Convention, to speak with a Mexican consular officer.  Medellin was convicted and sentenced to death, and his direct appeals were denied.  Medellin then filed a state habeas corpus motion, which was denied because Medellin had failed to raise an objection to this procedural breach at trial or on direct review.  That judgment was affirmed by the Texas Criminal Court of Appeals. 

However, in 2004 the International Court of Justice (often known as the world court) decided in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) that the United States had violated the Vienna Convention rights of Medellin and 50 other Mexican nationals.  The ICJ ordered the U.S. "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals," without regard to state procedural default rules.  In 2005, President Bush issued a memorandum to the Attorney General purporting to require state courts to comply with the Avena decision.* 

Medellin then filed another habeas petition in Texas, based on the ICJ Avena decision and the President's Memorandum.  The Texas courts concluded that neither was binding on state courts and rejected the petition. 

The Supreme Court granted cert. in Medellin to answer two questions: whether the ICJ judgment in Avena bound state courts by its own effect, and if not, whether the President's Memorandum made Avena binding.  On Tuesday a 6-3 majority of the Court answered both questions in the negative.

The Court's conclusion on the first issue is actually a fairly straightforward bit of treaty interpretation (though it  required a quite lengthy chunk of discussion to explain).  The majority (with Chief Justice Roberts writing) concluded that, by the terms of the treaty provisions creating the ICJ process and the Vienna Convention consular access right  ICJ decisions on the subject are not "self-executing."  This simply means that the protections granted by the Vienna Convention must be implemented by further legislative and regulatory actions, and thus are not directly and immediately binding on state and federal courts.

The more interesting (in my view) aspect of the case is the majority's conclusion that President Bush lacked the power to order state courts to comply with Avena.  The Solicitor General offered two justifications for the President's authority to do so.  First, the President was acting within his powers to implement U.S. treaty obligations and Congress acquiesced in his use of those powers.  Second, the President had authority under an international dispute-resolution power to require state courts to apply Avena.

Although the majority analyzed the Administration's first argument through an application of Justice Jackson's tripartite Youngstown presidential powers framework, the essence of the majority's position is that the President cannot implement non-self-executing treaties by his own fiat.  A key passage:

The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.  As this Court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.”  Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.”  The requirement that Congress, rather than the President implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate.

(Citations omitted.) The majority then dispensed with the Administration's second argument, concluding that the President's international dispute-resolution powers (which have questionably been rooted in the "gloss" of Congressional acceptance) are too narrow to apply in cases such as Medellin.

(Medellin offered a third argument on the question: that the President had the power under the "take care" clause (ie. his duty to take care that laws are faithfully executed), which the Court summarily rejected.)

NRO says that Medellin "is one of the most important international law cases in [the Court's] history."  I'm not completely sure about that, but the case does seem to offer two important take-away points.  First, the majority has, perhaps, announced a tighter standard for determining whether a treaty obligation is self-executing or non-self-executing, with the presumption (perhaps a strong presumption) being that such obligations are non-self-executing.  Second, the Court has restated, in very strong terms, the proposition that the President, in the absence of a grant of authority by Congress, lacks the power to enforce treaty obligations that are not self-executing though judicially-binding mandates.  Although the majority took pains to (in a footnote) state that it was only deciding the case before it, it's hard to see how the Court could find many, or even any, exceptions to that proposition in the future while remaining faithful to this case.

Finally, though it is much less important than the substantive legal implications outlined above, I was taken by the fact that Chief Justice Roberts's majority opinion is more harsh toward the dissenters (Justice Breyer, joined by Justices Ginsburg and Souter) than any of his prior opinions that I can recall.  Here, for instance, is one of a great  number of shots at Justice Breyer and cohorts:

The dissent faults our analysis because it “looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language).”  Given our obligation to interpret treaty provisions to determine whether they are self-executing, we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty.  The interpretive approach employed by the Court today—resorting to the text—is hardly novel.

From Chief Justice Roberts, that demonstrates an almost Scaliaesqe level of dismissiveness.


* I have included only a fairly cursory explanation of the procedural history of the case here.

Tuesday, March 25, 2008

Good for Fox

From today's Washington Post:

In an unusually aggressive step, Fox Broadcasting yesterday refused to pay a $91,000 indecency fine levied by the Federal Communications Commission for an episode of a long-canceled reality television show, even as the network fights two other indecency fines in the Supreme Court.

The FCC proposed fining all 169 Fox-owned and affiliate stations a total of $1.2 million in 2004 for airing a 2003 episode of "Married by America," which featured digitally obscured nudity and whipped-cream-covered strippers.

Fox appealed immediately after the FCC ruling. Last month -- four years later -- the FCC changed its mind, saying it would fine only the 13 Fox stations located in cities that generated viewer complaints about the program. That reduced the fine to $91,000.

Despite the sharp reduction, Fox said it would not pay the fine on principle, calling it "arbitrary and capricious, inconsistent with precedent, and patently unconstitutional" in a statement released yesterday.

We've seen President Bush's FCC take a markedly more aggressive (in my view, unconstitutionally aggressive) approach to regulating "indecent" speech, but the legal tide appears to have recently turned against the agency.  A bit late, but still welcome.

Monday, March 24, 2008

A Bizarre Endorsement

If you were reading NRO during the GOP primary contest this year you may have come across an article or two from GOP lawyer Douglas Kmiec.  He was a prominently featured supporter of Romney, asserting (in an unenviable square-off with Steven Calabresi) that Romney was a better choice for originalists than McCain.  Well, with Romney long out of the race Kmiec has finally come around and made a replacement endorsement:

Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights.

Perhaps most odd is that Kmiec basically admits that a President Obama would be a strong opponent of conservatism and originalism:

As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.

In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.

Now, Kmiec's endorsement is actually not much of a surprise: he's been saying some bizarre things on the net about Obama in the last couple of months.  Still, it's difficult to understand how a man who didn't support McCain because he was (allegedly) insufficiently committed to appointing originalist judges could now endorse Obama, and his post offers little justification (other than his entirely lame and milquetoast "he is not closed to understanding opposing points of view" comment) on the matter.

Saturday, March 22, 2008

George Will Goes Too Far

I'm on the record as being a huge fan of George Will, but even he gets an issue remarkably wrong sometimes.  A good example of that came this week.  In a column published Thursday Will described how one small business owner in Pinal County, Arizona has been tormented by entirely irrational and increasingly onerous local regulations.  Near the end of his column, Will offers this thought:

The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.

Although I loath idiotic economic regulations as much as the next one, I cannot agree with the notion that the due process and equal protection clauses in the 14th Amendment protect a generalized right to economic liberty, for reasons that have been set forth by lots and lots of originalist thinkers.  Will doesn't offer a counter to this conventional originalist wisdom (understandably, considering the space limitations),  but unless he is basing his position on evidence and reasoning that are much more powerful than what we've seen yet on the matter I doubt he would have convinced many had he done so.

By the way, I still maintain that, in the long run, it is impossible to have cases like Lochner without also having cases like Roe, and vise versa.  Both free-market libertarian originalists and living constitutionalists ignore that to ultimate peril of their views.

West Virginia in the News, Yet Again

An AP story from Saturday details why the owners of the historic mental hospital facility in Weston, WV (closed in 1994) have changed the National Historic Landmark's name to "The Trans-Allegheny Lunatic Asylum."  If that were the extent of what the new owners had done, the story would hardly be worth noting.  But, of course, this is West Virginia:

But others say the new owners of the massive Gothic Revival hospital have gone too far, disparaging the suffering of former patients and reopening wounds with planned events like "Psyco (sic) Path" dirt bike races on the grounds.

The owners (a family from Morgantown, to the discredit of my hometown) also plan to hold year-round "'mud bog' races, in which trucks try to speed through a pit without getting stuck," on the historic property.

(Insert your own white trash joke here.)

Friday, March 21, 2008


Although the big news from SCOTUS this week, was, of course, the Heller argument, the Court also handed down decisions in two constitutional cases.  In Snyder v. Louisiana, the Court found (in an opinion by Justice Alito) that a state trial court had committed clear error in rejecting a defense Batson challenge to the prosecution's use of a preemptory strike on a black prospective juror.  In Washington State Grange v. Washington State Republican Party, the Court upheld (in an opinion by Justice Thomas) against a facial First Amendment challenge (focusing on the associational rights of political parties) a Washington primary scheme that allows candidates to designate their "party preference" on the ballot and that advances the top two vote winners for an office, regardless of party designation, to the general election.

Synder is somewhat interesting because it basically mandates that a trial judge who, in applying the process* for determining whether a prosecutor has used a preemptory strike based on the race of a prospective juror, believes the prosecutor's stated non-discriminatory grounds must articulate on the record why he believes the prosecutor.  That's not a terribly burdensome new legal requirement, but I wonder how many trial judges across the nation tend to reject Batson challenges without much explanation.

(By the way, Synder was the case where the prosecutor made  remarks comparing that case to the O.J. Simpson case.  Alas, because of the way the Court decided the case it didn't need to discuss that factor.)

As for Washington State Grange, I might say more about it after I read the opinion over the weekend.  Or perhaps not.  From a skim of syllabus it looks rather dull.


*  "First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has [proven] purposeful discrimination."

Thursday, March 20, 2008

March Madness

Don't forget that CBS offers free live streaming video and archived footage of every game in the NCAA tournament here.

Wednesday, March 19, 2008

How the Court Should Decide Heller (Part One)

Having stated my thoughts on how Heller will be decided, allow me now to put forward my thoughts on how it should be decided.  Considering that every law blogger  more qualified than I to offer views on the subject has done so, this is something of an act of intellectual vanity. But of course law blogging is always a bit about intellectual vanity anyway (and besides, someone actually requested my view on this). So, surely I am compelled not to withhold my opinion on the matter.

As you know, the Second Amendment reads

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.

Of course, in Heller the Court is confronted with the threshold question of whether this language applies to individual challenges to firearm possession restrictions at all; that is, whether the Amendment protects an individual right or merely the rights of states to require their citizens "to keep and bear arms" in preparation for military service.  The collective rights interpretation faces a couple of serious problems that quickly apparent to a reader of the Amendment.  First, it is undisputed that of the eight amendments in the Bill of Rights that clearly address protections against federal power (ie. excluding the Ninth and Tenth Amendments) the provisions in the other seven have all been held to protect individual rights. (n1)  Taking this in combination with the indisputable historical character of the Bill of Rights as a vehicle for protecting individual liberties leads to an assumption that a provision in the first eight amendments should be considered to protect individual rights unless other contextual factors show otherwise.

Closely related to this general presumption, the second immediately apparent problem faced by proponents of the collective rights reading is the Amendment's use of the phrase "the right of the people."    The exact phrase "the right of the people" also appears in the assembly clause of the First Amendment ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble. . . .") and in the first sentence of the Fourth Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .").  Both provisions have been deemed, correctly, to confer individual rights (despite the reference to "the people" as a whole).  It is difficult to see why this phrase refers to individual rights in the First and Fourth Amendments but means something very different in the Second Amendment.  Indeed, the phrase renders a collective rights reading of the Second Amendment strained at best: if the Second Amendment protects the rights of the states, why doesn't actually it refer to the states instead of "the right of the people"? (n2)

Advocates for the collective rights theory concede (though implicitly) that their reading of the "operative clause" of the Second Amendment is unnatural, but claim that the first part of the text -- the "militia" clause -- modifies the second part, restricting the meaning of the Amendment to protecting the right of states to require individuals in their militias to prepare for military service by keeping and bearing arms.  But this proposed reading simply doesn't square with the phrase "the right of the people" in the operative clause.  Moreover, it is fairly clear from the linguistic context that the word "militia" was used in a broad sense, referring to all able-bodied men in the population, who might be obligated to defend public security.  In modern usage an equivalent of that sense of "militia" would be the word "citizenry."   As a theoretical exercise, replace the word "militia" with the word "citizenry" in the text of the Amendment; when one does so, it becomes clear that the "militia clause" argument falls flat. (n4)

Collective rights proponents might be able to overcome these face-of-the-text problems if they could offer strong historical evidence that prior to the enactment of the Second Amendment Anglo-American law rejected the concept of an individual right to possess firearms. (n3) As was revealed in the Heller oral argument, however, the evidence available on the point favors the individual rights side.  The English Bill of Rights of 1689 guaranteed Protestant subjects a general right to have arms, and Blackstone recognized in his Commentaries (first published in the 1760's) that English law protected an individual right to bear arms.  There is little-to-no affirmative evidence that this view was not shared in the pre-revolution American colonies and post-revolution states.  To the contrary, as Justice Kennedy pointed out in his questions during oral argument the individual possession of firearms was a practical necessity for many frontier residents.  Even in urban areas there were few, if any, broad prohibitions on individual ownership. (n5)  Everything indicates that American common and statutory law was, at the least, no less protective of an individual right to own firearms than English law.

Considering the language of Second Amendment as compared with the text of the other amendments in the Bill of Rights and the nature of the Bill of Rights generally, as well as the supporting historical evidence of a strong Anglo-American recognition of an individual right to bear firearms, the overwhelming weight of the contextual evidence points to the conclusion that the Second Amendment grants to individuals some kind of constitutional right to possess firearms.  In Part Two I'll discuss what sort of restrictions on firearms possession the federal government can constitutionally impose and examine the validity of D.C.'s provisions.


n1 This includes even the Establishment Clause, which the Court has concluded -- despite little supporting history for the notion -- grants an individual right.

n2   The framers were clearly able to differentiate between the two.  The Tenth Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

n3  As I'll explain in a lot more detail in the near future, I consider myself a rich-text originalist, meaning that I think a court must examine and weight the evidence about the original contextual framework of a term or phrase in the Constitution in a sort of "totality of the (original) circumstances" manner.

n4  It has also often been noted that, even by the standards of the 1780's, the Second Amendment is rather oddly punctuated. However, I haven't heard or read any really persuasive argument from either the collective rights side or the individual rights side that the placement of the commas is vitally important.  To my eye, all the commas except the one between the militia and operative clauses (ie. just before "the right of the people") are essentially superfluous, and in any event not enough to outweigh the other interpretive evidence.

n5  As I'll discuss in Part Two, there were some restrictions in English and American law exempting some categories of people from owning arms and restricting the manner in which they were stored and used. However, there is little doubt that the general rule was that individuals had a right to possess arms.

Tuesday, March 18, 2008

Something Completely Different

I'm going to wait until tomorrow to post more on Heller.  If you get bored in the meantime, head over to Hulu. The site recently opened to the general public, and though the content is still a bit thin in some areas it might already be the predominant (legal) site for watching full-length TV shows on the net. I've been using it for a few months now and have found myself steadily abandoning regular TV in favor of it, though your mileage may vary.   I was browsing through the SNL archive tonight and came across one of my favorite sketches:


Reminds me of one of my old friends from law school.

Some Thoughts on the Heller Argument

With all the great summaries of what happened this morning out there, I won't launch into a comprehensive description of how the argument transpired.  However, I have a few observations that may be worth mentioning:

- It seems clear that a majority of the justices believe that the Second Amendment does protect some individual right to keep and bear arms.   Justice Kennedy stated his support of view that with unusual (for him) clarity and firmness.  Justice Breyer, although he spoke mostly in hypotheticals, pretty strongly hinted that he agreed as well.  As expected, Justices Scalia, Roberts, and Alito seemed to have very little time for the collective rights argument  (one can probably safely presume that Justice Thomas is also in that camp).  Indeed, counsel for the District of Columbia, noted law professor Walter Dellinger, got absolutely hammered every time he brought up an argument to support the collective rights theory, to the point where even the justices that had not expressed opposition to that view tacitly encouraged him to move on.

- The Court , as expected, seemed more fractured in its discussions of the level of scrutiny the Second Amendment imposes and what sort of restrictions would not constitute an infringement on individual rights.  Justice Roberts made the argument the Court shouldn't accede to the temptation to announce a comprehensive set of interpretative rules in this case, but instead should allow its Second Amendment jurisprudence to develop gradually over a number of cases.   However, it seems as though the rest of the justices weren't as concerned about the prospect of issuing a broad ruling, and by the close of the session Justice Roberts himself was tentatively offering the view that restrictions are constitutional if (1) they pertain to arms that are not "lineal descendants" of arms in use at the time of the Second Amendment's enactment (for example, rocket-propelled grenade launchers) or (2) if the restrictions themselves are lineal descendants of regulations that were imposed at the time of enactment (for instance, certain kinds of restrictions about how guns must be stored in the home).  In contrast, several of the justices seemed to like the use of a general "reasonableness" standard, reacting favorably to arguments -- especially some great cites to Blackstone -- that pre-Second Amendment English law allowed for reasonable restrictions of the individual right to keep arms.  However, there were divisions here with regards to what reasonableness entails: Justice Breyer apparently favors some sort of quite weak reasonableness test, and suggested several times that D.C.'s high crime rate might justify the District's blanket ban on handguns.

- I'm sure some disagree, but I found the discussion of whether keeping arms and bearing arms are separate activities quite interesting, though I'm not convinced that question is of great importance in determining the overall substantial requirements of the amendment.

-  Though no one should have needed reminding, today further confirmed that Solicitor General Paul Clement is as good an advocate as everyone says.

- My foolish prediction on the outcome of the case: a five-member majority (Roberts, Alito, Scalia, Thomas, and Kennedy) will conclude that the Second Amendment recognizes a right to keep and bear arms free from unreasonable regulation, with "unreasonableness" defined largely by examining the type of restrictions that were allowed under English law and the pre-Constitution laws of the states.  D.C's blanket handgun ban will be struck down as unreasonable, and the District's storage and licensing regulations for shotguns and rifles will either be mostly upheld or remanded to back to the lower courts for further consideration.  Breyer, and perhaps another justice, will  agree with the individual rights determination but concluding that the D.C. handgun ban is partly or entirely reasonable.  At least two justices will dissent to everything.

(By the way, I apologize for my lateness in posting this.  I had a power failure this morning at my dwelling/workplace that lasted through most of the day.  I still intend to post some thoughts on how the case should come out later tonight.)


Update:  Fixed some grammatical errors in my prediction.

When Does the Right to Counsel Attach?

On Sunday I promised to post something on Rothgery v. Gillespie County, the Sixth Amendment Right to Counsel case that was argued yesterday.  However, in lieu of posting my own analysis  allow me to link to a very good short post by Orin Kerr at Volokh.  If you're at all interested in the question of when the constitutional right to counsel should attach or what the Supreme Court has said on that matter in the past you should give it a read.

Monday, March 17, 2008

D.C. v. Heller Argument Preview

Tomorrow morning at 10:00am, the Supreme Court will hear argument in the most important case before it since Planned Parenthood v. Casey.  The Second Amendment may be the last major constitutional provision, or at least the last major constitutional provision dealing with (arguably) individual rights, that the Court has not yet examined in depth.  The case of  U.S. v. Miller (1979), the only SCOTUS precedent worth mention in the area, has received a fair bit of attention, but the Miller Court merely concluded that the petitioners in that case had provided no evidence that possession of a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia. . . ."  Moreover, the Miller Court's discussion of its reasoning is very brief, very vague, and decidedly unhelpful overall.  Thus, in Heller the modern Court is presented with a chance to do something that has not been done by the Court in my lifetime (I'm 25) and may not come again during any of our lifetimes: the opportunity to explore and announce the true meaning of a major constitutional provision with virtually no thought to stare decisis principles.

By my count, there will be four issues that the Court will take up tomorrow.  They are:

  1. Whether the Second Amendment applies to the District of Columbia? (Here's a take-it-to-the-bank prediction: the justices will quickly conclude that it does.)
  2. Whether the Second Amendment creates an individual right to possess firearms, or merely prevents the federal government from interfering with now non-existent state mandates that citizens keep firearms to be ready for militia service?
  3. If the Second Amendment protects an individual right, what standard of scrutiny applies to federal (including D.C.) regulations of firearm possession?
  4. Whether the District of Columbia's remarkably sweeping regulations violate that standard?

As for the views the justices will display tomorrow and ultimately announce in their opinions (expected in late June), I think a majority of justices, and quite possibly maybe even six or seven justices, will adopt the view that the Second Amendment does protect some individual right to possess firearms.  The harder questions are what standard of review a majority deems applicable to firearm regulations and whether the Court itself will apply that standard to the D.C. restrictions or remand the case to the D.C. Circuit to address that point again.  If things go as I expect, everything will hinge on what standard-of-review the Court chooses.  I think it most likely that the Court will eventually decide that some sort of intermediate standard applies, whether that be a fairly undefined "reasonableness" test, an inquiry into how similar the firearms being restricted or banned are to those used at the time of the framing of the Second Amendment (as the D.C. Circuit applied), or something else.  If one thing is clear, however, it is that if the Court adopts a standard that has any bite to it at all, D.C.'s blanket prohibition of the possession of handguns will fall, either at the hand of the Supreme court itself or in the D.C. Circuit on remand.

As for my views on what the court should do in Heller, I'll defer a discussion of that until tomorrow, both because this post is getting long enough as it is and because I'd like to think more about the exact standard-of-inquiry that the Court should apply.

The augment should end at about 11:30 (it's set for 90 minutes), and C-Span will begin a broadcast of the argument audio very shortly thereafter.  If you can get away with it at work, I'm sure you'll be able to listen to a stream of the audio on C-Span's website here.  Also, SCOTUSblog will be liveblogging the C-Span replay, and there will, of course, be a ton of coverage everywhere else (including here) later in the day.  It's almost enough to make me not envy those who are going to see the argument is person.  Well, not quite, but at least I didn't have to camp out for tickets.


Correction: Fixed an awful and misleading grammar mistake in the first paragraph.


Alan Greenspan has a very interesting and insightful article in the Financial Times on the current economic turmoil.  The piece is plainly written (by Greenspan's standards), and if you want to understand the state of financial markets right now, how they got that way, and when conditions will improve it's a must read.  Moreover, the final paragraph reminds us of something we need to be reminded of in a time of quasi-panic:

In the current crisis, as in past crises, we can learn much, and policy in the future will be informed by these lessons. But we cannot hope to anticipate the specifics of future crises with any degree of confidence. Thus it is important, indeed crucial, that any reforms in, and adjustments to, the structure of markets and regulation not inhibit our most reliable and effective safeguards against cumulative economic failure: market flexibility and open competition.

Sunday, March 16, 2008

"Too Big To Fail"

The news today is that JPMorgan Chase has agreed to buy troubled investment banking house Bear Stearns, for a price equivalent to $2 per share of outstanding Bear Stearns stock.  As the AP reports, "JPMorgan's acquisition of Bear Stearns represents roughly 1 percent of what the investment bank was worth just 16 days ago." 

The buyout -- backed by financing to JPMorgan from the Federal Reserve -- will (hopefully) head off what could have been serious damage to the world financial system had Bear Stearns collapsed. The ironic part of this story?   In 1998, Bear Stearns pointedly refused to join a rescue plan for the last major financial player that was on the brink of going under, the now-infamous Long-Term Capital Management.


Update:  On Drudge now:


A Phenomenal Achievement

The coming week will be a busy one at the Supreme Court, with D.C. v. Heller (a.k.a. the D.C. guns case) coming up on Tuesday and five arguments on tap for the week in total.  But the folks at SCOTUSblog tell us that this week will also see a remarkable career milestone for one Supreme Court advocate:

But there’s also one other landmark that should not be overlooked — one that will occur in the very first case of the session, Philippines v. Pimentel: When Deputy Solicitor General Ed Kneedler stands up on Monday morning to argue for the United States as amicus curiae, he will be making his one-hundredth argument before the Court. If Westlaw is to be believed, Ed’s first argument was in United States v. Bailey, on November 7, 1979. (He won a reversal, 7-2.) Ed’s is the eighth-highest total ever (and with a half-dozen more he’ll pass none other than Francis Scott Key). The only living advocate with more arguments is Ed’s former colleague Larry Wallace.

To make one argument before the Court is an a great feat; to make a hundred is something that no sensible young lawyer hopes to accomplish.  That Kneedler's 100 arguments will put him in only eighth-place in the books is astounding.

By the way, check back tomorrow for a preview of the Heller argument and some post-argument coverage of Rothgery v. Gillespie County, an interesting Sixth Amendment Right to Counsel case that will be heard by the Court tomorrow morning.   (And remember, for more info on any constitutional case before the Court this term you can turn to my compilation on the matter, accessible via the link in the upper right hand corner of the main page.)

Poll Results

Well, polling has ended on my question of whether West Virginia voters are ready to vote for a black presidential candidate this fall.  Of the five readers who voted, three said yes and two said no. This result leads inexorably to two conclusions. First, I need to undertake some efforts to promote this blog and enlarge my audience (no offense to my current loyal readers).  Second, at least three of my readers have a good bit more faith in my fellow West Virginians than I do.  They have me at something of a disadvantage in the verifiability of their view: If Obama wins West Virginia in November (assuming he gets the Dem. nomination) they will be proven correct, but if he doesn't it will be hard to empirically ascribe that to racist views rather than Obama's political weaknesses (his liberalism on social issues, his inexperience, etc.)  Still, I think the course of how the general election campaign proceeds in the state may tell us some things about the mindset of West Virginia voters,  including (perhaps) some things that will support my pessimism.  We shall see.  Thanks to all who voted.

Thursday, March 13, 2008

Well Put

In a blog post about an unrelated topic (Eliot Spitzer), John Podhoretz explains a point that, while certainly not original,  is rarely stated so clearly:

Too often, people find it difficult to separate their own ideas about politics from their moral expectations. Democrats and liberals slip far too easily into a conviction that the Republican and conservative focus on equality of opportunity and the benefits of the market is merely a cover for greed and power dominance. Republicans and conservatives, likewise, believe the Democratic and liberal elevation of the government’s role in solving social problems is merely a cover for a bottomless hunger to arrogate and centralize political power. They are not content to believe their opponents are wrong. Rather, they are sure their opponents think exactly the same way they do and, therefore, that they are acting from malign intent rather than from a different perspective on how the world works best.

Conservatives tend to view the world through a moral framework, and this makes them susceptible to believing that others are immoral because they do not do so. Liberals tend to view the world through a framework of compassion, and this makes them susceptible to believing that others are heartless because they do not do so.

The Next Obama Scandal?

In 2006, Sen. Barack Obama requested a $1 million earmark to help fund a new pavilion at a University of Chicago Hospitals facility.  This wouldn't be terribly noteworthy, except that Michelle Obama (ie. Mrs. Obama) was vice president for community affairs and external relations for the University of Chicago Hospitals system at the time.

Wednesday, March 12, 2008

The President Takes a Stand Against "Fairness"

In a speech on Tuesday, President Bush vowed to veto any bill requiring the reinstatement of the Fairness Doctrine.  The patently unconstitutional requirements of the doctrine* were effectively repealed by the FCC during the Reagan years, but some Democratic members of Congress -- hounded by criticism from talk radio and other sources -- have introduced bills to reinstate them.  Here is the most relevant part of Bush's remarks, courtesy of the Austin American-Statesman:

This organization has had many important missions, but none more important than ensuring our airways - America’s airways - stay open to those who preach the ‘Good News.’ The very first amendment to our Constitution includes the freedom of speech and the freedom of religion. Founders believed these unalienable rights were endowed to us by our Creator. They are vital to a healthy democracy, and we must never let anyone take those freedoms away.

I mention this because there’s an effort afoot that would jeopardize your right to express your views on public airways. Some members of Congress want to reinstate a regulation that was repealed 20 years ago. It has the Orwellian name called the Fairness Doctrine. Supporters of this regulation say we need to mandate that any discussion of so-called controversial issues on the public airwaves includes equal time for all sides. This means that many programs wanting to stay on the air would have to meet Washington’s definition of balance. Of course, for some in Washington, the only opinions that require balancing are the ones they don’t like.

We know who these advocates of so-called balance really have in their sights: shows hosted by people like Rush Limbaugh or James Dobson, or many of you here today. By insisting on so-called balance, they want to silence those they don’t agree with. The truth of the matter is, they know they cannot prevail in the public debate of ideas. They don’t acknowledge that you are the balance … The country should not be afraid of the diversity of opinions. After all, we’re strengthened by diversity of opinions.

One may wonder where Bush's passion for defending the First Amendment was when he signed McCain-Feingold into law even though he thought it was unconstitutional.  One may also point out that the legislation in question will almost certainly never reach his desk, or that, unlike with McCain-Feingold (which came to him during his first term), Bush would have nothing to risk politically by vetoing it even if it did get past Congress during the remainder of his time in office.  Still, better late than never, I guess.

* The Warren Court -- that great defender of civil liberties -- upheld some Fairness Doctrine requirements in 1969, but the reasoning behind that decision has been thoroughly rejected since and I have little doubt that the Supreme Court would, quite correctly, take a very negative view of those requirements today.

Tuesday, March 11, 2008

A (Potentially) Very Interesting Separation of Powers Case

Yesterday, the House Judiciary Committee filed suit against Joshua Bolten and Harriet Miers, President Bush's chief of staff and former White house counsel, respectively, to compel them to testify before Congress about their involvement in the U.S. attorneys firing scandal that occurred in 2006.  The committee originally subpoenaed Miers and Bolton quite a while ago; on the advice of the Justice Department they refused to comply, asserting several forms of executive privilege.  Last month the Democratic majority in the House voted to hold Miers and Bolton in contempt of Congress, but the Justice Department refused to refer the contempt citation to a grand jury for enforcement on the same legal grounds.  Hence the civil suit filed yesterday.

According to a Washington Post story, this is the first time that a body of Congress has filed a civil suit against the Executive Branch to enforce a subpoena.  The suit raises, to my eye, at least three interesting separation of powers issues, which I'll list here and discuss more fully as the case develops.  First, the Committee must show that it has standing to sue the Executive Branch.  In the past federal courts have sometimes ruled that members of Congress individually do not have standing to sue over executive acts.  Second, if memory serves  I learned in my Presidential Powers class in law school that the D.C. Circuit has ordered the dismissal of civil suits to quash congressional subpoenas,  reasoning that in the interest of comity with the other branches courts should stay out of disputes about testimony before Congress until forced by a contempt proceeding to get involved.  Here, there is no contempt proceeding because the Justice Department has refused to prosecute the contempt charge, but that reasoning may or may not be applied in a suit to enforce a subpoena . Finally, there are, of course, the actual disputes about whether and how the privileges cited (see the Post story for more details) apply. 

If I find a copy of the complaint I'll post it.

Update:  Success: I got the complaint from the Judiciary Committee's website.

Monday, March 10, 2008

There Are Some Very Happy People on Wall Street Today

From the New York Times:

ALBANY - Gov. Eliot Spitzer has been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel last month, according to a person briefed on the federal investigation.

The wiretap recording, made during an investigation of a prostitution ring called Emperors Club VIP, captured a man identified as Client 9 on a telephone call confirming plans to have a woman travel from New York to Washington, where he had reserved a room. The person briefed on the case identified Mr. Spitzer as Client 9.

(For those who don't recall, Spitzer won election to the governorship of New York after making his reputation as a crusader against the alleged malfeasance of corporate officers in some high-profile cases.)


From an AP story today (Tuesday):

On Wall Street, where Spitzer built his reputation as a crusader against shady practices and overly generous compensation, cheers and laughter erupted Monday from the trading floor when news broke of his potential ruin.

Many in the financial industry had long complained that the man known as "Mr. Clean" and the "Sheriff of Wall Street" was abusive and insulting, that he went after them with holier-than-thou zeal, and that he was just trying to make headlines and advance his political career.

"The irony and the hypocrisy is almost too good to be true," said Bryn Dolan, a fundraiser who works with many Wall Street employees. "If he had any shame, he would've already resigned."

Saturday, March 8, 2008

Congress's Pro-Corruption Caucus

If I saw this in a movie I would call the development cynical and farfetched, but more representatives are inveighing against John McCain for helping to bust Boeing on its corrupt defense contracting practices.  As you'll recall from my post yesterday, as a result of the exposure of that corruption an Air Force tanker deal with Boeing was revoked, and when the deal was put up for bid again a rival consortium won the contract.  Aside from Speaker Pelosi's view, here are some more reactions:

  • "I hope the voters of this state remember what John McCain has done to them and their jobs." --Rep. Norm Dicks (D-Washington).


  • "Having made sure that Iraq gets new schools, roads, bridges and dams that we deny America, now we are making sure that France gets the jobs that Americans used to have.  We are sending the jobs overseas, all because John McCain demanded it."  --Rep. Rahm Emanuel (D-Illinois).


  • "John McCain will be the nominee and I will support him, but if John McCain believes that Airbus or EADS is the company for our Air Force tanker program he's flat-out wrong - and I'll tell him that to his face."  -- Rep. Dave Reichert (R-Washington).


  • "I think we absolutely will hear more about it.  We'll hear it mostly from the Democrats and they have every right to be concerned."  Rep. Todd Tiahrt (R-Kansas).

If you read the AP story these quotes were taken from, it points out that all of those quoted represent districts that would have gained jobs had Boeing's corruption gone undiscovered.  No doubt many more legislators would be expressing similar views if the projected impact were more widespread. 

Friday, March 7, 2008

A Criticism That Reveals Much About the Critics

You may have heard that the Pentagon recently awarded a $35 billion contract to produce fuel tankers for the Air Force to a partnership of Northrop Grumman and EADS -- the European aerospace consortium that makes planes under the Airbus brand -- instead of Boeing.  That decision caused more than a bit of consternation on Capitol Hill, especially from members who have Boeing production facilities in their districts (just a coincidence, I'm sure.)   This week, House speaker Nancy Pelosi went a step further by laying the blame for Boeing's failure to win the contract at the feet of John McCain:

My understanding is that it was on course for Boeing before. I mean, the thought was that it would be a domestic supplier for it. . . .  Senator McCain intervened, and now we have a situation where the contract may be - this work may be outsourced.

And how, exactly, did Sen. McCain "intervene"?  The Financial Times describes what Pelosi was apparently talking about:

The air force originally chose Boeing to supply it with 100 tankers. But Congress cancelled [sic] the deal after it emerged that Darleen Druyun, a former top air force acquisitions official, had held illegal job discussions with Boeing while still negotiating the deal. Ms Druyun admitted boosting the value of the deal to help Boeing.

Mr McCain has pointed to his aggressive investigation into the Boeing deal as evidence that he is willing to stand up to powerful corporate interests.

The tanker scandal claimed the career of former Boeing chief executive Phil Condit. Ms Druyun and Mike Sears, Boeing's former chief financial officer, were sent to jail.

So, Boeing officials tried to corrupt the tanker acquisition process and got caught.  And Sen. McCain is to blame for helping to uncover that corruption.

If you had to distill down to essence everything that's wrong with the current congressional culture, that summary would be a good place to start.

Thursday, March 6, 2008

This Video Is, Apparently, Not a Parody

The Corner today has some coverage of an uber-creepy set of web videos recently produced by Obama campaign.  The one that's getting the most attention is this celebrity-laden appeal, which  is even more remarkable for its lack of substance, inclusion of utopian language, and personality-cult feel than your typical Obama camp communication:



Found another video in the set that's even more creepy and very, very (unintentionally) funny.  (Watch in particular for the straight-armed salute just before the 2:00 mark.)


By the way, upon further review it seems that these weren't produced by the Obama campaign itself but by an independent group of supporters.

Wednesday, March 5, 2008

Scary Stuff

Via the AP:

LAS VEGAS - Nearly 40,000 people learned this week that a trip to the doctor may have made them sick. In a type of scandal more often associated with Third World countries, a Las Vegas clinic was found to be reusing syringes and vials of medication for nearly four years. The shoddy practices may have led to an outbreak of the potentially fatal hepatitis C virus and exposed patients to HIV, too.

More here.

And, of course, you won't be surprised to learn that the diligent lawyers of Las Vegas are keeping close tabs on the situation:

Plenty of lawyers are wading into the mess. Television ads called "health alerts" are soliciting clients. At least a handful of class-action lawsuits have been filed.

On Tuesday, the office of Las Vegas attorney Ed Bernstein was buzzing with phone calls — nearly 1,000 a day, he said. Bernstein said he represents about 1,200 patients at the facility, eight who have tested positive for hepatitis C.

Tuesday, March 4, 2008

A Quasi-Essay on Danforth v. Minnesota

Note to the reader:  The following is a rather rough essay-length piece on a recently decided Supreme Court case that I've been working on for the last ten days on so.  To prevent my main blog page from becoming unwieldy, I've decided to post the first few paragraphs here and link to the rest offsite. I reserve the right to correct any appalling spelling or grammar errors that I may discover after leaving the piece sit for a while.  Hope you enjoy.

To this point in the 2007-2008 term, the Supreme Court has handed down only two decisions interpreting the Constitution. The Court’s latest constitutional decision, Danforth v. Minnesota, hasn't gotten a great deal of media attention, likely because it doesn't directly set down or reject new substantive constitutional requirements.  However, the opinions in the case address the question of just what differentiates a substantive constitutional rule that state courts must follow under the Supremacy Clause from other kinds of federal rules that are only binding on federal courts.  The debate between the majority and minority opinions on that, as well as the potential for the case to become an important precedent on retroactivity, makes Danforth well worth examining in some depth.

When the Supreme Court announces a new constitutionally-derived rule of criminal procedure, that rule applies in the case at hand and in all similar future cases.   However, the question of whether new criminal procedure protections should apply to criminal cases already in progress or completed -- in common legal parlance, whether such new rules should be applied retroactively -- has given the Court fits for decades.   Through 1965, all new criminal procedural rights announced by the Court were given full retroactive application to all ongoing and prior criminal cases; a new rule was applied to all cases still on appeal when the rule was announced (ie. cases still on direct review) and prisoners who had completed the appellate process could make arguments on the new rule by challenging their convictions in habeas corpus proceedings (ie. cases on collateral review).  But as the Court announced more and more new constitutionally-based criminal protections the justices apparently came to doubt the wisdom of universal retroactivity. In the 1965 case of Linkletter v. Walker,  the Court installed a new, considerably more complex retroactivity scheme.  The previous bright-line (for better and for worse) approach was junked, replaced by rule-by-rule inquiry "examining the purpose of [each new] rule, the reliance of the States on the prior law, and the effect on the administration of justice of retroactive application of the rule."

Continue reading this essay.

Hillary's Last Stand?

So, today could really be "win or go home" for Hillary Clinton.  She needs to win both the Texas and Ohio primaries (and perhaps win one or both by a substantial margin, because delegates are awarded proportionately in both) to have any realistic chance of overtaking Obama's delegate lead.  Though the Conventional Wisdom says she's toast, I'm not so sure.

She does seem to have a few things going for her.  First, the polls in both Texas and Ohio actually look pretty good for her: the final RCP polling averages show her with a 1.7 percent lead in Texas and a more substantial  7.1 percent lead in Ohio.  If she wins both states tonight, even narrowly, she'll get a lot of positive press and there will be a lot more talk from the pundits about Obama's inability to win big states.  Second, her "who do want answering the phone at 3:00a.m.?" ad seems to have successfully cut through the clutter and made an impact in the race.  Third, the media has, after being quite effectively mocked by Saturday Night Live and lots of other outlets, finally started to really get tough with Obama over the past few days.  Fourth, in response to Hillary's attacks about his lack of substance Obama has recently forsworn giving his flighty, inspiring (if nearly substanceless) speeches at rallies in favor of discussing very specific policy details at town hall meetings.  Trying to out Hillary Hillary like that strikes me as a bad strategic mistake.

Don't misunderstand me: the odds are still against Hillary, simply because of the delegate math.  But if she wins in Texas and Ohio tonight, and can follow up with a win in Pennsylvania, she'll have a pretty powerful argument to make to Democratic superdelegates and the D.N.C. powers that be -- who will decide whether to sit the Michigan and Florida delegates at the Democratic convention -- that she is the candidate with more electoral appeal, even if Obama has a technical majority of the pledged delegates.

Sunday, March 2, 2008

Can a Black Presidential Candidate Win West Virginia in 2008?

Since Obama became the clear favorite to win the Democratic nomination, I've been pondering whether he has any real shot, if he does become the nominee, to win West Virginia in the general election, and have come to the conclusion that he does not.  This isn't because of Obama's liberal voting record; I think the right sort of liberal -- one who could shift attention from his specific stances on gun control, gay marriage, and regulation of the coal industry to a message of economic populism --could put West Virginia in play.  Rather, and there's no gentle or positive way to put this, I believe a much higher proportion of West Virginia voters than voters nationally simply will not, even in 2008, vote for a black presidential candidate -- Republican or Democrat, conservative or liberal -- and that block of voters would rule out an Obama win in this state under any realistic scenario for the development of the presidential race this fall.

For any who believe that West Virginia voters are more enlightened than I do, I'd love to see some arguments to that effect in the comments (and indeed, would love to be convinced by such arguments).  I've also set up a poll, in the sidebar, to see how many readers agree and disagree with my assessment.

Saturday, March 1, 2008

The Fifth Freedom of the First Amendment

Here's a quick quiz, dear reader:  name the five individual freedoms expressly protected by the First Amendment (not counting the Establishment Clause protection as an individual freedom).  Freedom of speech, of course, along with freedom of the press, freedom of religion, and freedom to peacefully assemble. And?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Yes, the First Amendment protects the right to lobby.  And as Charles Krauthammer persuasively argues in a column today, we have become too disparaging toward the act of lobbying.  Not only have we (or at least most of us, including myself) lost sight of its constitutionally protected status, we have overlooked the fact that the root cause of the incredible intensity of current lobbying  (including lobbying that serves only the most narrow of interests) is the present size and role of government in society:

There is a defense of even bad lobbying. It goes like this: You wouldn't need to be seeking advantage if the federal government had not appropriated for itself in the 20th century all kinds of powers, regulations, intrusions and manipulations (often through the tax code) that had never been presumed in the 19th century and certainly were never imagined by the Founders. What appears to be rent-seeking is thus redress of a larger grievance -- insufferable government meddling in what had traditionally been considered an area of free enterprise.

First-rate stuff.