Moving to Montana?: Montana and the Second Amendment

I kinda of doubt that they are serious (see also here and here), but the notion that by claiming the Second Amendment was not an individual right the Supreme Court would be breaking the compact that Montana agreed to when they joined the US is an entertaining idea.

The story of the Supreme Court case, Heller v. D.C. and the Montana attorney general, Secretary of State and legislators warning the Supreme Court that if the Court finds that there is no individual right to bear arms in the Constitution, is going to get interesting, to say the least.

It appears that if the Supreme Court sides with the District of Columbia in disarming gun owners and invalidating the constitutional protections contained in the Second Amendment, they would be in direct opposition to what all 50 states have guaranteed their citizens in the 50 state consitutions: the right to bear arms and protect themselves.

This has sparked questions.

If the Supreme Court decides what is constitutional and it runs counter to what every single state has clearly worded as a guaranteed right in the state constitutions, written at the time those states freely joined the Union, what then?

At this point, we’re not going to speculate until we do more research.

BUT that hasn’t stopped others, particularly gun owners from weighing in on the consequences.

At the AR-15 Forums, a large forum for gun owners, the comments have been flying fast and furious since the news of the Montana legislators sending their warning to the Supreme Court that a finding of “collective right” would violate the compact the state signed with the US government when the state freely joined the Union.

If Montana really left the union, it might be fun to move back there (it is very beautiful).

Thanks very much to Sonya for mentioning this to me.

Over 90 percent of Republicans in Congress Support an Individual's Right to Own Guns

Support for gun rights is an overwhelmingly Republican issue. 9 of the 55 Senators who signed the Supreme Court brief saying that gun ownership is an individual were Democrats (9 out of 51 Democrats is an 18 percent rate). 46 were Republicans (thus 46 of the 49 Republicans signed it, a 94 percent rate). 67 of the 250 Congressmen who signed the brief were Democrats (with 233 Democrats in congress that is a 29 percent rate). Again that means 183 out of 201 Republicans signed it (a 91 percent rate).

Obama claims to support individual's right to own guns, but simultaneously supports DC's ban on handguns

Both Clinton and Obama claim to support an individual's right to own guns, though it is useful to note that neither signed the brief supporting this that was just submitted to the Supreme Court. This is one part of the article that caught my attention:

At his news conference, he voiced support for the District of Columbia's ban on handguns, which is scheduled to be heard by the Supreme Court next month.

I have blogged on this issue before, but I would like to see someone ask Clinton and Obama in their debates about how they can reconcile their position on the gun ban with their claimed position of gun ownership as an individual right.

306 to 18: Congressional Support for an Individual's Right to Own a Gun is Overwhelming

You can read the brief that Cheney and 305 members of Congress signed here. To say that this is an "unusual step" for Cheney is a bit of an understatement because the brief that he signed put him at odds with the DOJ brief submitted a few weeks ago. The DOJ brief stated that the right to own guns is an individual right, but that the level of burden necessary for the government to restrict that right was relatively low, much lower than for the rest of the Bill of Rights. But the brief signed by Cheney argued for a much higher burden on the government (see the "strict judicial scrutiny" discussion on p. 36). For a news article see this:

WASHINGTON — Vice President Cheney took the unusual step Friday of joining with lawmakers in signing a Supreme Court brief that goes further in support of gun rights than the one submitted by the Bush administration. . . .

Cheney joined more than 300 senators and representatives, led by Sen. Kay Bailey Hutchison, R-Texas, who want the court to rule that Washington's ban is unconstitutional.

"The vice president believes strongly in Second Amendment rights," Cheney spokeswoman Megan Mitchell said.

Seventeen Democratic lawmakers and District of Columbia Del. Eleanor Holmes Norton urged the court to uphold the ban. . . .

The brief for the 17 members of Congress and the Delegate from DC can be seen here.

One other point should be made here. McCain signed the same brief that Cheney did. Not surprisingly, Hillary Clinton and Barack Obama did not.

Majority of Congress On Record that the Right to Own Guns is an Individual Right

The Heritage Foundation hosted an event about the 2nd Amendment yesterday and below are some video and audio links to the event, and the text of Sen. Hutchison’s remarks.

Briefs available on DC Gun Ban case

Many Amici briefs for the respondent (those challenging the DC ban) are available here.

Brief to over turn DC gun ban filed today

The brief for the attorneys challenging the DC gun ban was filed today. You can read it here.

Ben Wittes on the DOJ Brief on the DC Gun Ban Case

Ben Wittes at the New Republic quickly and accurately dissects the Bush Administration's DOJ brief on the DC gun ban case:

It's easy to see why conservatives are in a tizzy. While the brief endorses the D.C. Circuit's view that "the Second Amendment protects an individual right to possess firearms unrelated to militia operations," it also emphasizes that adopting this view "does not render all laws limiting gun ownership automatically invalid" and insists that the lower court "did not apply the correct standard for evaluating [a] Second Amendment claim." What is the correct standard? Laws limiting gun ownership, the government argues, should be subject to "heightened scrutiny" under which "the practical impact of the challenged restriction" gets balanced against "the strength of the government's interest in enforcement of the relevant restriction." According to the Bush administration, "important regulatory interests are typically sufficient to justify reasonable restrictions." Because the lower court did not consider the D.C. law using this standard, the solicitor general argues, the case should be sent back for further consideration.

This is a pretty weak conception of a constitutional right. You can't imagine subjecting, say, the First Amendment to such a test. It would be laughable for the court to permit--or the executive branch to advocate--the abridgment of press or religious freedoms whenever the government's interest in restricting them served an "important regulatory interest" and therefore constituted a "reasonable restriction." . . .

Ben supports this increased flexibility with the Second Amendment because as he puts it: "Whatever conception the founders may have had of the amendment, they didn't have to think about situations like Virginia Tech, and they did not have inner-city gun crime." I suppose that my research has convinced me that no matter how well meaning gun free zones such as Virginia Tech might be, they have had unintended consequences -- that they encourage attacks and make them more successful. That said, and I appreciate his well meaning concerns, it is hard for me to see how the trade-offs that government faces with the Second Amendment could be different from say the First or the Fourth that also refers to "the right of the people." I thought that Ben had it right last year when he wrote that rather than eviscerating the constitution by selectively picking the parts that we agree or disagree with he wrote that it should simply be repealed or rewritten if we disagreed with it. See also this by Ben from last year. I particularly respect this position and admire people who take it because it must be very difficult for someone who supports gun control to take. The reason is simple: given how hard it is to alter the Constitution, accepting this argument means accepting strict limits on gun control.

Here is one question: if the costs of guns are so large, why do you have to have a lower level of scrutiny? If the costs are so high, won't you be able to meet the higher level of scrutiny?

Excellent WSJ Editorial on the DOJ brief in the DC Gun Ban Case

The WSJ weighs in on the DOJ gun ban brief and tries to explain what happened:

So why would his own Solicitor General do this? The speculation in legal circles is that Mr. Clement is trying to offer an argument that might attract the support of Anthony Kennedy, the protean Justice who is often the Court's swing vote. But this is what we mean by "too clever by half." Justice Kennedy would be hard-pressed to deny that the Second Amendment is an individual right, given his support in so many other cases for the right to privacy and other rights that aren't even expressly mentioned in the Constitution. No less a left-wing scholar than Laurence Tribe has come around to the view that the Second Amendment protects an individual right for this very reason. Mr. Clement is offering a needless fudge.

The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound. By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment. Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration.

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case. Is anybody still awake at the White House?

Thanks to Gus Cotey for sending me this link.

The backlash to DOJ DC gun ban brief

The Washington Post discusses the reaction to the Bush Administration's brief here:

The Bush administration's position in the case before the Supreme Court on the constitutionality of the District of Columbia's ban on handguns has created an unexpected and serious backlash in conservative circles, disappointing gun enthusiasts and creating implications for the presidential campaign.

The government's brief, filed by U.S. Solicitor General Paul D. Clement just hours before the court's deadline Jan. 11, endorses the view that the Second Amendment conveys an individual right to gun ownership, a finding long sought by gun rights activists.

But it also said an appeals court used the wrong standard when it struck down the District's ban on private handgun ownership, and it urged the Supreme Court to return the case to the lower court for review.

If the justices accept that advice when they hear the case in the spring, it could mean additional years of litigation over the controversial Second Amendment and could undo a ruling that was a seminal victory for gun rights enthusiasts. . . .

The piece notes that Senator Fred Thompson spoke out against the brief, though it doesn't make clear that he was the only one to do so.

In a debate last week in Nevada, all three major Democratic candidates pledged their fealty to the Second Amendment -- "People have a right to bear arms," Sen. Hillary Rodham Clinton (N.Y.) said -- although none mentioned the District's handgun ban.

As I mentioned in an earlier post, it would seem that it was the moderator's job to put the question squarely to them.

Here was my earlier take on all this.

Democratic Presidential Candidates Talk About Guns

In the debate in Nevada the other night, Tim Russert asked the democrats whether they supported licensing for guns. Clinton and Obama said it would they weren't going to push for licensing, but their reason was that it would generate too much political opposition -- implying that if the opposition went down, they would push for it. Edwards said clearly that he was against licensing.

Hillary Clinton though said that "I believe in the Second Amendment. . . . But I also believe that we can common-sensically approach this." If Russert was at all on his feet, he would have asked her whether she thought that the DC gun ban, soon to be going before the U.S. Supreme Court was unconstitutional. It would be a tough question. If she said it was unconstitutional, she would get a lot of Dems upset. If it was constitutional, the question is what would be the benefit from saying you believe in the Second Amendment?

Glenn Harlan Reynolds & Brannon P. Denning Give their take on Heller

To see their take in the Online Companion to the Texas Law Review click here.

Thompson first to come out against Bush Adm Brief on DC gun case

Asked his opinion of the Second Amendment and the Solicitor General’s request that the DC Circuit Court remand the appeal back to the trial court for “fact-finding”, the lawyer turned Senator from Tennessee said the Bush Administration was “overlawyering” and stated that he opposed remand and that the case should move forward to the U.S. Supreme Court. . . .

Fred Thompson is the first and only presidential candidate to oppose the Solicitor General's brief that was filed in the DC gun case last Friday. You can read his entire response here.

Amicus briefs were filed in support of the District of Columbia government

For those interested, the Amicus briefs in support of DC's position can be found here.

New Op-ed: Bad Brief: The Bush DOJ shoots at the Second Amedment

Here is the new op-ed that I have this morning at National Review Online:

A lot of Americans who believe in the right to own guns were very disappointed this weekend. On Friday, the Bush administration’s Justice Department entered into the fray over the District of Columbia’s 1976 handgun ban by filing a brief to the Supreme Court that effectively supports the ban. The administration pays lip service to the notion that the Second Amendment protects gun ownership as an “individual right,” but their brief leaves the term essentially meaningless. . . .

UPDATE: For different perspectives see here and here.

BUSH ADMINISTRATION SIDES WITH DC ON GUN BAN CASE

Yes, you read this headline correctly. An email from Joe Olson at Hamline University School of Law alerted me to this problem. David Hardy briefly discusses the Bush Administration's brief on the Parker/Heller case. Here is my question: if it is merely a question of reasonable regulations, why put the second amendment in the bill of rights? Why use the term "shall not be infringed"? The DOJ brief mentions the phrase "shall not be infringed" once when it quotes the amendment. Here is my question: what would the writers of the Second Amendment have had to write if they were serious that "the right of the people to keep and bear arms shall not be infringed"? A copy of DOJ's brief can be seen here.

There are numerous factual mistakes in the brief. For example, on page 21 they refer to the "current federal machine gun ban." There is no such ban. Some 250,000 machine guns are legally owned in the US. The discussion of what is meant by the term "well regulated" on page 22 is not what I know the term to mean. As I understood the term at the amendment was written meant "well disciplined," but the DOJ brief wants to use the current usage of the term.

What is particularly disappointing is the excellent research that the DOJ had done on the Second Amendment just a few years earlier. Thanks to John McGregor for reminding me to post a link to this.

The Washington Post's take on the DOJ brief can be read here.

The problem with the claim that lethal injection for the death penalty is cruel and unusual punishment

While the chief justice’s skepticism was not unexpected, Justice Stephen G. Breyer’s response to Mr. Verrilli’s argument was a surprise. Justice Breyer told Mr. Verrilli he had read scientific articles supporting the one-drug protocol that were cited in the briefs filed by the inmates and had found them confusing.

“So I’m left at sea,” he said. “I understand your contention. You claim that this is somehow more painful than some other method. But which? And what’s the evidence for that? What do I read to find it?”

“I ended up thinking, of course there is a risk of human error,” Justice Breyer continued. “There is a risk of human error generally where you’re talking about the death penalty, and this may be one extra problem, one serious additional problem. But the question here is, Can we say that there is a more serious problem here than with other execution methods?”

Often, such doubts about the quality of the evidence lead the court to send a case back to the lower courts for further factual development. Mr. Verrilli said that although the record was sufficiently clear for the justices to proceed, “it certainly would be a reasonable thing to do” to send the case back to the Kentucky courts, which rejected the challenge to the three-drug protocol without considering whether the availability of the single-drug alternative meant that inmates were being subjected to an unnecessary risk of pain. . . . .

The claim is that the first injection cannot be guaranteed to anesthetize the killer before the other drugs take effect. By this logic of requiring a guarantee, executions through a firing squad or hanging or electrocution would all have to be banned.

But the problem is actually even broader. We can't even guarantee the criminal's safety in prison. Could the criminal be injured? Could he be stabbed by another criminal? My own guess is that those arguing to end executions understand this problem and probably really hope that the case will be sent back to the lower court. Sending the case back to the lower court could be used to continue to put on hold executions in the US for years.

What about the claim that the second injection that paralyzes the killer before he is executed is unnecessary? I can think of several good reasons for it, but the primary one is why would you want the criminal making gestures and thrashing around during the execution?

Supreme Court Takes on Another Death Penalty Case

WASHINGTON (Reuters) - The Supreme Court said on Friday it would decide whether the death penalty can be imposed for the crime of raping a child, expanding its review of how capital punishment is carried out in the United States.

The nation's highest court agreed to hear an appeal by a Louisiana man who is the only person in the United States on death row for a crime other than murder. He is arguing the death penalty for child rape violates the constitutional ban on cruel and unusual punishment. . . .

There is an interesting economics point here that I wrote about in Freedomnomics. I think that the evidence strongly shows a deterrence effect from the death penalty, but the argument could be quite different for other crimes. If you already face the death penalty for rape, you might want to kill the victim to avoid witnesses. After all, what more can they do to you if you already face the death penalty? The reason that isn't clear is because committing what is considered an even worse crime will increase the probability of arrest and also increase the probability of being given the death penalty. The fact that this child rapist is the only person on death row thus makes it more likely that the possibility of the death penalty for raping a child did not appreciably increase the likelihood that he would have killed his victim.

DC Fires its Lead Attorney in the DC Gun Ban Case

I caution people against reading too much into this, but it is generally positive.

David Vladeck, a professor at Georgetown Law School, said Morrison's departure would be a major blow to the D.C. team that has been preparing the case.

"This is a case that requires an unusual amount of preparation because one of the issues comes back to, 'What did those folks who wrote the Bill of Rights really mean when they wrote the Second Amendment,' " said Vladeck, who is friends with Morrison and had been consulting on the case. "In addition to needing a good lawyer and appellate advocate, you need someone who has immersed himself in very complex historical sources. Alan has been doing that for two or three months by now. Whoever takes over this case will start many, many, many laps behind where we ought to be."

USA Today Online Poll on Second Amendment

A USA Today poll asking whether the Second Amendment gives individuals the right to bear arms can be found here.

Logical inconsistency in using the death penalty?

OK, the Supreme Court claims that whether the death penalty should only apply to those whose brains were sufficiently developed. But does this logic mean that men and women should face the death penalty at different ages?

Men and women display patterns of behavioral and cognitive differences that reflect varying hormonal influences on brain development

Personally to me just because brains are changing doesn't mean anything about the ability to understand right and wrong.

Very lively debate on Supreme Court Gun Ban Case

Last week I had a debate with Richard French on the Regional News Network, which is in New York, Connecticut, and New Jersey. I believe that you can watch the debate here, though I can't seem to get it to work because it apparently doesn't work with Macs. If that doesn't wok, you could try this and search under "John Lott."

P.S. I have both Windows Media 7 for the Mac and I have tried with both Firefox and Safari, but failed to get this work. If any readers could help me out with the exact link (assuming that I got it wrong), please let me know.

CBS Correspondent Predicts Close Decision Over DC Gun Ban Case with

Even more importantly he predicts that with Kennedy as the swing vote, most gun control will still be allowed. I assume that this isn't the same standard that Kennedy thinks applies to the first and fourth amendments.

One of Justice Anthony Kennedy's law clerks, Orrin Kerr, recently predicted this precise scenario. After declaring that there is an individual right under the Second Amendment, "Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation," wrote Kerr.

It matters what Kerr thinks about Kennedy because it matters what Kennedy thinks about the court. Almost certainly he will be the "5" if the gun case is decided, as most think it will be, through a 5-4 ruling. The litigants surely know this and so will cater their briefs to push the Swing Justice in one direction or the other. But will Kennedy, in the end, be willing to forge the compromise that ends that individual/collective "dichotomy" that Professor Cornell complains about? . . . . .

Thanks to John Lazar for sending me this link.

Glenn Reynolds on the Second Amendment and the options the Supreme Court Faces

It can find that the Second Amendment doesn't grant individual rights, but only protects the right of states to arm their militias (or "state armies," as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don't like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

This is the first time that I have seen this point. Putting the merits of this approach aside (even DC doesn't appear to really have its heart in this approach), I really wonder if gun control advocates know what they might be getting into if they get their wish regarding the DC gun ban.

Supreme Court Grants Cert for DC Gun Ban Case

Whatever one thinks is the obvious meaning of "shall not infringe," this case is a big risk. I would have thought that the first amendment was clear with "shall pass no law," but the court interpreted this as "Congress shall pass no law unless it has a good reason." The case is likely to be closely decided.

Probably one reason why the court took an extra week to announce that they were taking the case was because they were rewriting the question before the court:

Here is the way the Court phrased the granted issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The Scotusblog has a useful discussion of the case.

An argument for the Supreme Court to Review the DC gun ban

Robert Levy in today's LA Times:

Later this month, the Supreme Court will decide whether to review the circuit court's blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the 2nd Amendment protects the rights of individuals. If the high court takes the case, oral arguments likely will be held this spring, with a decision expected before June 30. . . . .

The stakes are immense. Very few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged 2nd Amendment violation might have occurred. Thus, Parker could have an immediate effect not only on D.C. gun regulations but on federal regulations. . . . .

No announcement on whether the Supreme Court will Hear the DC gun ban case

This delay isn't too surprising, but the best guess is that the court will take the case.

WASHINGTON—The Supreme Court took no action Tuesday in the case involving the District of Columbia's ban on handguns.
The justices discussed the case at their private conference on Friday, but reached no resolution.
Four justices must vote to grant an appeal. The court does not always reach a decision the first time it discusses a case. . . . .

We could know by Tuesday Whether the Supreme Court will take up the DC Gun Ban Case

The court apparently made their decision on November 9th regarding granting cert and could announce the decision this coming Tuesday.

Nelson Lund deals with what he thinks is the strongest argument that can be made in favor of DC's gun ban

This is worth reading:

Abstract

The District of Columbia forbids almost all civilians to possess handguns in their own homes. Rifles and shotguns are permitted, but they must be kept unloaded and either disassembled or secured with a trigger lock, making them useless for self defense. The D.C. Circuit recently held that this statute violates the Second Amendment.

One way to attack the D.C. Circuit decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment?

This superficially plausible defense of the District’s statute was not adequately refuted in Judge Silberman’s opinion for the D.C. Circuit. This article demonstrates, largely but not exclusively on the basis of a careful linguistic analysis of the Second Amendment, that such a defense of the District’s statute is untenable.

A thought on the DC Gun Ban Case

The ban comes "nowhere close to disarmament of residents. The District's overwhelming interest in reducing death and injury caused by handguns outweighs respondent's asserted need . . . ." The obvious key here is that DC says people can use rifles and shotguns for self-defense. DC also adds that they don't believe that the regulations that lock up and require the disassembling of guns does not "prevent the use of a lawful firearm in self-defense."

Here is the problem that DC faces. 1) The law is very clear. If you assemble and load a rifle or shotgun, that long gun becomes an illegal weapon. 2) On top of this, DC has won a previously legal victory before the Supreme Court that says that the DC police are not responsible for harm that comes to people. 3) The bottom line is that the DC police are not obligated to protect citizens AND DC will not allow people to defend themselves. I don't know how DC gets out of this. Either people are at least given the option to defend themselves or the city has to bear responsibllity.

New Op-ed on DC Handgun Ban

D.C.’s brief makes a number of other claims:

The ban comes "nowhere close to disarmament of residents. The District's overwhelming interest in reducing death and injury caused by handguns outweighs respondent's asserted need . . . ." The obvious key here is that DC says people can use rifles and shotguns for self-defense. D.C. also adds that they don't believe that the regulations that lock up and require the disassembling of guns does not "prevent the use of a lawful firearm in self-defense."

But locked guns are simply not as readily accessible for defensive gun uses. In the U.S., states that require guns be locked up and unloaded face a 5 percent increase in murder and a 12 percent increase in rapes. Criminals are more likely to attack people in their homes and those attacks are more likely to be successful.

Since potentially armed victims deter criminals, storing a gun locked and unloaded actually encourages increased crime.

— "All too often, handguns in the heat of anger turn domestic violence into murder."

To put it bluntly, criminals are not your typical citizens.

Does DC know what "Does not deprive" means?

On page 21 of its request for cert from the Supreme Court, DC makes the following claim:

A law that bans handguns, but permits private ownership of rifles and shotguns does not deprive anyone of the right to keep and bear Arms, however that right is construed."

"Does not deprive" is a pretty strong term. But owning rifles and shotguns is not the same thing as being able to use them. The word "bear" must mean something. The implications for DC's gun locks can be seen in the paper found here. Some of the diagrams in the paper are particularly useful.

New Op-ed: DC asking for Cert on Gun Ban

To me the most interesting part of DC's request for cert was how little time they spent discussing the constitutionality of the law and how much time they spent on a purely public policy discussion.

In asking the Supreme Court to let the District of Columbia ban handguns, the city has a simple argument: Whatever one thinks of the Second Amendment, banning handguns is a "reasonable regulation" to protect public safety. The problem for the city is that anyone who can look up the crime numbers will see that D.C.'s violent crime rate went up, not down, after the ban. . . .

For some commentary on the piece see: here, here, here, here, here.

Senator Chuck Schumer: President Gets No More Appointments to Supreme Court

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.” . . . .

Specter causing trouble for future nominees

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation.

Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.

"There are things he has said, and I want to see how well he has complied with it," Specter said, singling out Roberts.

The Specter inquiry poses a potential political problem for the GOP and future nominees because Democrats are increasingly complaining that the Supreme Court moved quicker and more dramatically than advertised to overturn or chip away at prior decisions. . . . .

Scalia on Rules When Dealing with Terrorism

I meant to post this a while ago, but John Fund in Political Diary reminds me about this:

The Globe and Mail newspaper in Canada reports [Scalia] positively gushed about the Fox series recently at a conference on homeland security in the Canadian capital of Ottawa that was attended by an international panel of judges. Mr. Scalia couldn't refrain from commenting after Canadian federal Judge Richard Mosley opined: "Thankfully, security agencies in all our countries do not subscribe to the mantra, 'What would Jack Bauer do?'"

As viewers know, Jack Bauer, played by Kiefer Sutherland, is a federal agent known for roughing up suspected terrorists who are holding out on important information.

"Jack Bauer saved Los Angeles!" Mr. Scalia interjected. "He saved hundreds of thousands of lives!"

Indeed, Mr. Scalia was just warming up. "Are you going to convict Jack Bauer? Say that criminal law is against him?" he asked rhetorically. "Is any jury going to convict Jack Bauer? I don't think so!"

Other panelists promptly challenged the American jurist, arguing that some prisoners held in Guantanamo Bay on terrorism charges could be innocent.

"I don't care about holding people. I really don't," Judge Scalia replied. After the panel broke up, he continued to wax enthusiastically about his favorite show.

"Conservatives go 4-4 today at the Supreme Court"?

A blog at the Washington Post notes:

Legal and political conservatives hit for the cycle Monday morning when they "won" four long-awaited rulings from the United States Supreme Court. The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school. . . . .

I would more likely say 2.667 for 3.

1) The sign case seems like a difficult one. Students obviously don't have free speach rights at school, but the event was a school "sanctioned" one. Yet, this kid was not really in school at the time. One could even argue that he was skipping school at the time. Of course, this might explain why I am conflicted. The Circuit court decision raised an interesting point that "All sorts of missions are undermined by legitimate and protected speech -- a school's anti-gun mission would be undermined by a student passing around copies of John R. Lott's book,'More Guns, Less Crime . . . ."

2) The campaign finance case was only a marginal win given that Roberts and Alito were not willing to go anywhere near as far as Thomas and Scalia. They differentiated between different types of political advertising.

Bush Administration Looking to Nominate Women or Minorities to Supreme Court

Jan Crawford Greenburg has all the details in a very long article. Given her uncanny ability to get information for her recent book on the Supreme Court, I would assume that she knows what she is talking about.

Owen, Rogers Brown Back on Short List

Leading Senate Democrats are already warning against solidly conservative nominees, and that could make confirmation difficult in the Democratic-controlled Senate.

Still, some of Bush's political advisers believe he would be better off tapping a strong conservative who would rally the base -- especially a nominee with a compelling life story who would be difficult for moderate Senate Democrats to oppose.

In that camp are federal appeals court Judges Priscilla Owen and Janice Rogers Brown. Both were filibustered by Senate Democrats after Bush nominated them as appellate judges and were eventually confirmed after Senate leaders struck a compromise on judicial nominations.

Either could have been a likely replacement for O'Connor in 2005, but leading Senate Republicans told the White House not to nominate them because they were seen as too controversial at the time. Now that both are on the federal bench, the White House has put them back on a working short list.

Of the two, Owen is the best known in the White House and is generally considered less controversial than the more outspoken Brown.

Owen, like Brown, also has gotten high marks from her colleagues on the federal appeals court. But Owen's friendship with Karl Rove could hurt her, especially in a White House vulnerable to charges of cronyism.

The White House also is looking at Chicago-based federal appeals court Judge Diane Sykes, who is considered conservative but less controversial, sources close to the process said. But Sykes is not as well known inside the administration, which is a strike against her, White House sources said.

Bush does not want to repeat the mistake of his father, who nominated the unknown David Souter, believing he was conservative only to see Souter quickly become one of the Court's most reliable liberal votes. . . . .

Judge Silberman warns DC on the Parker case

UPDATE: This post is pretty important. Some basics: Only DC can appeal the circuit court decision because they lost at that level. A Supreme Court decision is necessary to make the ruling binding on the whole country.

ORIGINAL: From Bob Levy: "Yesterday the DC Circuit granted DC's unopposed motion to stay the mandate in the Parker case until August 7, the deadline for a cert petition. In an extraordinary statement (see attached), Judge Silberman warned DC that it would have been inappropriate to request a stay if DC did not intend to file for cert."

Sliberman, Senior Circuit Judge: Although the District's motion for stay only indicates it "may" petition for certiorari, since appellants did not object, I assume it is understood that the District intends to petition for review in the Supreme Court. If it did not so intend, in my view, it would be inappropriate for it to have sought the stay."

There are rumors floating around DC that DC and the gun control groups getting cold feet and believe that they will lose if they go to the Supreme Court. A couple of different people told me about this last night at the annual CEI dinner. My own guess is that if DC doesn't appeal after making so much noise about doing just that, gun control groups will suffer a serious black eye and will be taunted with that decision for years. For them not to go forward, they must be really worried about suffering a very serious loss at the Supreme Court.

UPDATE: More on the Parker Case:

Another piece of intel on Parker:

Just now I heard DC's mayor, interviewed on the local NPR show for the last hour, say the following re: the Parker decision:

1) he represents DC, and "the community" wants him to appeal
2) it would be bad precedent for the circuit court decision "that makes no sense" to stand without challenge in the US
3) there may be a risk to NYC and Chicago, Boston, etc. laws if a pro-2A ruling happens at USSC, but "he has to do what's best for DC"
4) BUT he said he was still weighing the options, and should be announcing a final decision on what DC is doing in the next few weeks.

The discussion was in the last ten minutes of the KoJo Nnamdi show, linked here:
http://www.wamu.org/programs/kn/07/05/25.php#15849

Bob Levy offers DC some unsolicited advice on what to do with the Parker v. District of Columbia Case

I am not sure Bob convinces anyone that he is offering unbiased advice here, but it is still an interesting op-ed.

Washington, D.C., Mayor Adrian M. Fenty (D) has the Second Amendment in his crosshairs. He faces a crucial choice over the next 90 days with major implications for residents in D.C. and across the country: Should the city ask the Supreme Court to review Parker v. District of Columbia, a March 9 decision by the U.S. Court of Appeals that said D.C.’s handgun ban is unconstitutional? On May 8, the city lost round two when the appellate court declined to re-hear the case. That leaves the Supremes as the court of last resort.

Sounds like a no-brainer. After all, the city has nothing to lose. If the Supreme Court overrules the appellate court, the mayor will be off the hook. He can continue peddling his fantasy world in which the city’s handgun ban protects Washingtonians from gun violence. On the other hand, if the Supreme Court affirms the lower court decision, D.C. will be no worse off than it would have been if it hadn’t asked for review. The handgun ban, as it now stands, will be history. . . . .

Fred Thompson Quotes Don Kates on Guns

Fred Thompson sets the NY Times straight on the 2nd Amendment. In "Armed with the Truth," Thompson extensively references a letter written by Don Kates to the NY Times, a letter that the NY Times never published.

Thompson will have a very loyal following when he finally announces:

When guns were outlawed in D.C., crime and murder rates skyrocketed. Still, the sentiment exists and must be countered with facts. All of this highlights why it is so important to appoint judges who understand that their job is to interpret the law, as enacted by will of the people, rather than make it up as they go along.

In March I wrote a piece saying how strong I thought Thompson was on the gun issue. I think that Thompson's statements over the last couple of months have shown that what I said was completely accurate.

Don Kates Responds to NY Times

I had previously posted on the NY Times article on whether the 2nd Amendment garantees an individual right to own a gun. Well, Don wrote up a much longer letter here. I wouldn't normally post something this long, but some may find the long list of journal articles of interest.

To the Editor

The pervasive inaccuracy of the N.Y. TIMES on gun issues is epitomized by the fact that "A Liberal Case for Gun Rights" is the most accurate treatment the Times has ever given the Second Amendment – and yet is still highly misleading.

From the article the ordinary reader would come away with the following misimpressions: 1) from its enactment in 1791 to roughly 1980 everyone viewed the 2nd Am. as a states right

or a meaningless "collective right"; 2) since 1980 a few ivory tower intellectuals have theorized that the Second Amendment might be a right of individual gun owners; 3) nonetheless the great majority of authorities say that is wrong.

The truth is almost diametrically opposite. Specifically:

1) From its enactment till the 20th Century gun control
movement the Second Amendment was universally understood as protecting an individual right to possess arms. Not one court or commentator asserted otherwise; 18th and 19th Century judges and commentators routinely described the Amendment as a right of individual gun owners and expressly analogized it to the rights of freedom of speech, religion, jury trial etc., etc. [See David B. Kopel "The Second Amendment in the Nineteenth Century," 1998 BRIG. YOUNG L. REV. 1359.]

2) The states’ right and collective rights theories are previously unknown artifacts of the 20th Century gun control movement having no constitutional provenance whatever. William Van Alstyne, a paramount figure in 20th-21st Century constitutional law, summarized the matter thus: "In recent years it has been suggested that the Second Amendment protects the 'collective right' of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis." William Van Alstyne, "The Second Amendment and the Personal Right to Arms", 43 DUKE L. J. 1236, 1243, n. 19 (1994)

3) Far from the Second Amendment creating a states’ militia right, nearly 200 years of Supreme Court cases on the militia hold that the federal government has plenary power over the militia with state authority being limited to issues on which Congress has not spoken. [Houston v. Moore, 18 U.S. 1, 24 (1820) (federal authority over the militia is paramount -- federal militia legislation preempts state), Martin v. Mott, 25 U.S. 19 (1827) (federal authority over the militia is paramount -- president's power to call militia from state control into federal service), Selective Draft Law Cases, 245 U.S. 366, 383 (1918) (federal authority over the militia is paramount -- Congress has power to abolish state militias by bodily incorporating them into federal army), Perpich v. Department of Defense, 496 U.S. 334 (1990) (federal authority over the militia is paramount -- state militias may be called into federal service over state objection).]
4) Over 120 law review articles have addressed the Second Amendment
since 1980. The overwhelming majority affirm that it guarantees a right of individual gun owners. That is why the individual right view is called the "standard model" view of the 2d Am by supporters and opponents alike. [The phrase "standard model" originated in a review of the scholarly literature by an individual right theorist, University of Tennessee constitutional law, Glenn H. Reynolds, "A Critical Guide to the Second Amendment", 62 TENN. L. REV. 461 (1995). For its acceptance even by vigorous opponents of that model see, e.g., John Randolph Prince, "The Naked Emperor: The Second Amendment and the Failure of Originalism," 40 BRAND L. J. 659, 694 (2002) Saul Cornell, "Commonplace or Anachronism: The Standard Model, the Second Amendment and the Problem of History in Contemporary Constitutional Theory", 16 CONST. COMM. 229 (1999), Garry Wills, "To Keep and Bear Arms," NEW YORK REVIEW OF BOOKS, September 21, 1995 and Andrew D. Herz, "Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibilities," 75 BOSTON U. LAW REV. 57 (1995).]

5) With virtually no exceptions, the few articles to the contrary have been written by gun control advocates, mostly by people in the pay of the anti-gun lobby. [See, e.,g. Nicholas J. Johnson , "Shots Across No Man's Land: A Response to Handgun Control, Inc.'s Richard Aborn", 22 FORDHAM URBAN L. J. 441-451 (1995).]

6) In contrast, a very substantial proportion of the standard model articles are written by scholars who ruefully state that they personally support gun control but must honestly admit that the evidence is overwhelming that the Second Amendment precludes banning guns to the general population.
[See Appendix B]

-Don B. Kates


Appendix A: The following quotations indicate my authority to speak authoritatively on this subject: Sanford Levinson, "The Embarrassing Second Amendment", 99 YALE L. J. 637, fn. 13 (1989) ("The most important single article is almost undoubtedly Kates, ‘Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204' (1983)."), John Randolph Prince, supra 40 BRAND L. J. at 679 ("The seminal article on the "individual rights" view is, as evidenced by its frequent citation alone, Don B. Kates, Jr.'s "Handgun Prohibition and the Original Meaning of the Second Amendment’" ); David G. Browne, "Treating the Pen and the Sword as Constitutional Equals..." 44 Wm & M. L. REV 2287 , fn. 12 ("The idea of a "standard model" of the Second Amendment probably began with Don B. Kates, Jr.,"Handgun Prohibition and the Original Meaning of the Second Amendment’").

Appendix B: The following is a partial list of publications after my 1983 article through 2000 which support the standard model using a variety of differing analyses: Calvin Massey, "Guns, Extremists and the Constitution," 57 WASH & LEE L. Rev. 1095 (2000); Roger Roots, "The Approaching Death of the Collective Right Theory of the Second Amendment," 39 DUQ. L. REV. 71, 88ff. (2000); Andrew M. Wayment, "The Second Amendment: A Guard for Our Future Security," 37 IDAHO L. Rev. 203 (2000); Robert Cottrol, ""Structure, Participation, Citizenship and Rights," 87 GEORGETOWN L. J. 2307 (1999); Nelson Lund, "The End of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders" 4 TX REV. L & POLITICS 181 (1999); David B. Kopel "The Second Amendment in the Nineteenth Century", 1998 BRIG. YOUNG L. REV. 1359; Kevin Worthen, "The Right to Keep and Bear Arms in Light of Thornton: The People and Essential Attributes of Sovereignty," 1998 BRIG. YOUNG L. REV. 137; Eugene Volokh, "The Commonplace Second Amendment" 73 N.Y.U. L. REV. 793 (1998) and "The Amazing Vanishing Second Amendment, 73 N.Y.U. L. REV. 831, Brannon P. Denning, "Gun Shy: The Second Amendment as an 'Underenforced Constitutional Norm'", 21 HAR. J. L. & PUB. POL. 719 (1998), Brannon P. Denning, "Professional Discourse, The Second Amendment and the 'Talking Head Constitutionalism' Counterrevolution," 21 SIU L. REV. 227 (1997); Nicholas J. Johnson, "The Intersection of Abortion and Gun Rights" 50 RUTGERS L. REV. 97 (1997); Thomas McAffee & Michael J. Quinlan "Bringing Forward The Right to Keep and Bear Arms: Do Text, History or Precedent Stand in the Way?", 75 U. N.C. L. Rev. 781-899 (1997); Brannon P. Denning & Glenn Harlan Reynolds, "It Takes a Militia: A Communitarian Case for Compulsory Arms Bearing," 5 WM. & M. BILL OF RTS. J. 185 (1997); L. A. Scot Powe, Jr., "Guns, Words and Interpretation," 38 WM. & M. L. REV. 1311-1403 (1997); Robert Dowlut, "The Right to Keep and Bear Arms: A Right to Self-Defense Against Criminals and Despots," 8 STANFORD LAW & POLICY REV. 25 (1997); Nicholas J. Johnson, "Plenary Power and Constitutional Outcasts: Federal Power, Critical Race Theory and the Second, Ninth and Tenth Amendments," 57 Ohio St. L. J. 1556 (1996); Thomas McAffee, "Constitutional Limits on Regulating Private Militia Groups," 58 MONT. L. REV. 45 (1997); David B. Kopel & Christopher Little, "Communitarians, Neo-Republicans, and Guns: Assessing the Case for Firearms Prohibition," MARYLAND L. REV. # 2 (1997); Brannon P. Denning, "Palladium of Liberty? Cause and Consequences of the Federalization of State Militias in the Twentieth Century," 21 OKLA. CITY U. L. REV. 191 (1997); David B. Kopel & Joseph Olson, "Preventing a Reign of Terror: Civil Liberties Implications of Terrorism Legislation," 21 OKLA. CITY U. L. REV. 247 (1997); Brannon P. Denning, "Professional Discourse, The Second Amendment and the 'Talking Head Constitutionalism' Counterrevolution: A Review Essay," 21 SIU L J 227 (1997); Kevin D. Szezepanski, "Searching for the Plain Meaning of the Second Amendment," 44 BUFF. L. REV. 197 (1996); Nelson Lund, "The Past and Future of the Individual's Right to Arms," 31 GEORGIA LAW REVIEW 1 (1996); Scott Bursor, "Toward a Functional Framework for Interpreting the Second Amendment," 74 Texas Law Review 1125-1151 (1996); Brannon Denning, "Can the Simple Cite Be Trusted: Lower Court Interpretations of United States v. Miller and the Second Amendment," 26 CUMBERLAND L. REV. 961-1004 (1996); Anthony Dennis, "Clearing the Smoke from the Right to Bear Arms and the Second Amendment", 29 Akron Law Review 57-92 (1995); Gregory Lee Shelton, "In Search of the Lost Amendment: Challenging Federal Firearms Regulation Through Utilization of the State's Right Interpretation of the Second Amendment," 1995 FLORIDA STATE U. L. REV.; David B. Kopel, "It Isn't About Duck Hunting: The British Origins of the Right to Arms", 93 MICH. L. REV. 1333 (1995); Michael J. Quinlan "Is There a Neutral Justification for Refusing to Implement the Second Amendment or is the Supreme Court Just 'Gun Shy,'" 22 CAPITAL U. L. REV. 641 (1995); T. Markus Funk, "Is the True Meaning of the Second Amendment Really Such A Riddle?" 39 HOWARD L. J. 411 (1995);; Inge Anna Larish, "Why Annie Can't Get a Gun: A Feminist Appraisal of the 2nd Am.", 1996 U. Ill. Law F. 467; T. Markus Funk, "Gun Control and Economic Discrimination: The Melting-Point Case-in-Point", 85 J. CRIM. & CRIMINOL. 764, 776-789 (1995); Robert J. Cottrol and Raymond T. Diamond, "'The Fifth Auxiliary Right'", 104 YALE L. J. 995-1026 (1994); William Van Alstyne, "The Second Amendment and the Personal Right to Arms", 43 DUKE L. J. 1236-1255 (1994); Glenn H. Reynolds "A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461-512 (1995); Jeremy Rabkin, "Constitutional Firepower: New Light on the Meaning of the Second Amendment," 86 J. CRIM. L. & CRIMINOL. 231-246 (1995); Robert J. Cottrol & Raymond T. Diamond, "'Never Intended to be Applied to the White Population': Firearms Regulation and Racial Disparity, The Redeemed South's Legacy to a National Jurisprudence?", 70 CHICAGO-KENT L. REV. 1307 (1995); Nicholas J. Johnson , "Shots Across No Man's Land: A Response to Handgun Control, Inc.'s Richard Aborn", 22 FORDHAM URBAN L. J. 441-451 (1995); David Vandercoy, "The History of the Second Amendment", 28 VALPARAISO L. REV. 1006 (1994); William A. Walker, Review, 88 MICH. L. REV. 1409-14 (1990); Nelson Lund , "The Second Amendment, Political Liberty and the Right to Self-Preservation", 39 ALA. L. REV. 103-130 (1987); Glenn H. Reynolds, "The Right to Keep and Bear Arms Under the Tennessee Constitution", 61 TENN. L. REV. 647 (1994) (extensively discussing the Second Amendment in relation to the Tennessee Constitution); Leonard M. Levy, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 341 (Macmillan, 1988); (1986); Robert Shalhope, "The Armed Citizen in the Early Republic", 49 LAW & CONTEMP. PROBS. 125 (1986); Joyce Lee Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition", 10 HAST. CONST. L. Q. 285 (1983). Stepehn P. Halbrook, "What the Framers Intended: A Linguistic Interpretation of the Second Amendment", 49 LAW & CONTEMP. PROBS. 153 (1986) and "Rationing Firearms Purchases and the Right to Keep Arms" 96 W. VA. L. REV. 1 (1993); Martire, "In Defense of the Second Amendment: Constitutional and Historical Perspectives" 21 LINC. L. REV. 23 (1993); Comment: "Gun Control Legislation and the Intent of the Second Amendment: To What Extent is There an Individual Right to keep and Bear Arms?" 37 VILLANOVA L. REV. 1407 (1992); O'Hare and Pedreira, "An Uncertain Right: The Second Amendment and the Assault Weapon Legislation Controversy", 66 ST. JOHN L. REV. 179 (1992); Robert Dowlut, "Bearing Arms in State Bills of Rights, Judicial Interpretation, and Public Housing" 5 ST. THOMAS LAW REVIEW 203 (1992); Moncure, "The Second Amendment Ain't About Hunting", 34 HOW. L. J. 589 (1991); Halbrook, "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and t he Second Amendment", 26 VALPARAISO L. REV. 131 (1991); Tahmassebi, "Gun Control and Racism", 2 GEO MASON CIV. RTS. L. J. 67 (1991); Bordenet, "The Right to Possess Arms: the Intent of the Framers of the Second Amendment", 21 U.W.L.A. L. REV. 1 (1990); Moncure, "Who is the Militia - The Virginia Ratifying Convention and the Right to Bear Arms", 19 LINC. L. REV. 1 (1990); Morgan, "Assault Rifle Legislation: Unwise and Unconstitutional", 17 AM. J. CRIM. L.143 (1990); Robert Dowlut, "Federal and State Constitutional Guarantees to Arms", 15 U. DAYTON L. REV. 59 (1989); Halbrook, "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment, 15 U. DAYTON L. REV. 91 (1989); Hardy,"The Second Amendment and the Historiography of the Bill of Rights", 4 J. LAW & POLITICS 1 (1987); Hardy, "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment", 9 HARV. J. LAW & PUB. POLICY 559 (1986); Dowlut, "The Current Relevancy of Keeping and Bearing Arms", 15 U. BALT. L. FOR. 32 (1984).

Supreme Court on liability in police high speed chases

The Supreme Court today ruled that police officers are free from liability in speedy car chases. As David Hardy points out, what is even more interesting than the conclusion in this case is Scalia's opinion:

"Indeed, reading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test..."

"Justice Stevens hypothesizes that these cars “had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights,” so that “[a] jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance.” Post, at 3. It is not our experience that ambulances and fire engines careen down two-lane roads at 85-plus miles per hour, with an unmarked scout car out in front of them." . . .

David Hardy also points to what is a first, the Supreme Court providing a video tape link to the chase scene tape.

""Justice Stevens suggests that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents. See post, at 4 (dissenting opinion) (“In sum, the factual statements by the Court of Appeals quoted by the Court … were entirely accurate”). We are happy to allow the videotape to speak for itself. See Record 36, Exh. A, available at http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb and in Clerk of Court’s case file."

An amusing dissent by Chief Justice Roberts

In a recent Supreme Court decision, John Paul Stevens' majority opinion threw out two death penalty sentences in Texas and rebuked the state because they "misapplied the law as clearly established by earlier decisions of this Court." I thought that Roberts had an amusing response:

"Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views established in that dissent actually represented 'clearly established' federal law at that time. So there is hope yet for the views expressed in this dissent."

"Encouraged by the majority's determination that the future can change the past, I respectfully dissent."

O’Connor on the possible end of Affirmative Action

Sandra Day O’Connor, the retired associate justice of the U.S. Supreme Court and author of the majority opinion in a landmark 2003 decision upholding the legality of race-conscious college admissions, acknowledged in a speech today that she is not confident the court had preserved affirmative action in higher education for much longer.

Speaking at Washington’s National Press Club at a symposium on diversity at colleges, Justice O’Connor said, “The future of affirmative action in higher education today is certainly muddy.” As the basis for her observation, she cited Michigan voters’ adoption last fall of an amendment to that state’s Constitution banning affirmative-action preferences, as well as the passage of similar measures in California in 1996 and Washington State in 1998, and current efforts to place preference bans on several states’ ballots in 2008.. . .

So has Bush Transformed the Supreme Court?

Stuart Taylor has a very interesting discussion regarding two people who you would think can answer this question. Jan Crawford Greenburg things that Bush as transformed the court, but Benjamin Wittes is more doubtful. I think that Wittes is right. Conservatives need at least one more retirement of one of the liberals to make a real difference.

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O'Connor, a disagreement between two of the nation's best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets. . . .

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country's judicial landscape in a generation... with repercussions as yet unimagined," she predicts.

"I'm not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation's smartest legal editorials for The Washington Post, highly recommends Greenburg's book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony. . . .

First, the gist of the Greenburg-Wittes debate: She foresees that the 56-year-old Alito will tip to the conservative side those big 5-4 decisions that O'Connor had tipped to the liberal side. In addition, she says, the 52-year-old Roberts is more persuasive, more energetic, and no less conservative than his predecessor as chief justice. Third, both new justices have such strong conservative principles and legal minds that they are unlikely to drift leftward as have other Republican appointees, including John Paul Stevens, O'Connor, Anthony Kennedy, and David Souter. But Roberts and Alito are also more collegial and less confrontational than conservative Justices Antonin Scalia and Clarence Thomas, and thus less likely to alienate their more moderate (and liberal) colleagues.

Wittes responds that an improbable number of stars must align to bring about a dramatic transformation. The Court still has only four conservatives, he points out. Kennedy, now the key swing justice, has voted with the liberals on four of the five hottest issues, as detailed below, and is only shakily allied with the conservatives on the fifth. Roberts and Alito, unlike Scalia and Thomas, have not so far acted like conservative warriors itching to mow down forests of liberal precedents. To the contrary, the chief justice says his goal is to promote greater consensus by deciding cases on narrow, relatively uncontroversial grounds.

Then there are the wild cards. While liberal Justices Stevens and Ruth Bader Ginsburg are 86 and 73 years old, respectively, Scalia and Kennedy are both 70. Who will outlast whom? And who will fill any vacancies?

A nice debate. But it's time for hard predictions. Here are mine, on the five (currently) hottest issues. . . .

Summarizing Taylor's predictions in the rest of the piece:

Abortion: not much of an effect
Race: could go either way
Religion: "Alito and Roberts will probably strike down fewer holiday nativity scenes, Ten Commandments displays . . ." Otherwise not much change.

Supreme Court Going to Decide About Whether to Allow High Speed Police Chases

This is a case for the Supreme Court? The problem with the decisions at the district and circuit court levels is that the courts looked at what they thought were the costs and benefits from pursuit in those cases. Even if a particular pursuit turns out badly, the threat of pursuit may stop a lot of other crimes from occuring. It is too bad that the person in this case became paralyzed, but what about the other crimes that were stopped?

The U.S. Supreme Court will hear arguments today in a case expected to lay down new rules about when and how law-enforcement officers can chase suspects and use their vehicles to stop them.

At issue before the court is whether a Georgia police officer went too far when he rammed his vehicle into the car of a driver who refused to pull over for speeding. The car went down an embankment, and the crash left the 19-year-old driver paralyzed from the neck down.


Civil liberties advocates and critics of police chases are concerned that a ruling for the officer in the case would give law enforcement the green light to use more aggressive tactics even for minor offenses.

Most Central Florida law-enforcement agencies have policies that prohibit pursuits when only traffic or minor offenses are involved, although some policies are more restrictive than others.

Law-enforcement officers across the country are concerned that a ruling for the driver would put them in legal jeopardy for split-second decisions at crime scenes.

But even if the court rules in favor of the deputy, don't expect area law-enforcement agencies to change how they deal with fleeing suspects, one veteran Central Florida police official said Sunday. . . . .

As the chase continued on Georgia Highway 74, at speeds of up to 90 mph, Scott took over and led the pursuit.

Seconds later, Scott asked permission to use the PIT maneuver, and his supervisor responded over the radio: "Take him out; take him out."

But they were traveling too fast on a wet two-lane road for the maneuver, so Scott rammed Harris' Cadillac in the rear, sending the car down an embankment.

Harris was paralyzed and was never prosecuted.

He filed a lawsuit against Scott, alleging violation of his rights under the Fourth Amendment's guarantees against unreasonable seizures and excessive force. . . . .