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Second Amendment Tea Leaves for Corrigan, Sykes, Luttig and Alito:

In Re Four Possible Supreme Court Nominees. In the case of Love v. Pepersack, Judge Luttig concurred in an opinion rejecting a section 1983 claim for an erroneous denial of a handgun license by the state of Maryland. Judge Luttig's concurrence stated, in its entirity: "I concur only in the judgment reached by the majority, and I do so only because Gardner v. Baltimore Mayor and City Council, 969 F.2d 63 (4th Cir. 1992), is the law of the circuit." The Gardner case involved a narrow interpretation of substantive due process.

In United States v. Rybar, Judge Alito wrote a blistering dissent from the majority opinion which held that, notwithstanding United States v. Lopez, Congress had the power to use the Interstate Commerce power to prohibit the mere possession of machine guns manufactured after May 1986, even though Congress had made no findings about the effect of such machine guns on interstate commerce. Judge Alito's dissent did not address the majority's assertion that Rybar had no Second Amendment rights because Rybar was not a member of the militia.

Neither case clearly shows Judges Luttig or Alito to support or oppose the Standard Model of the Second Amendment. However, I believe that both opinions suggest that judges Luttig and Alito are, at the least, not hostile to the Second Amendment. Moreover, a generous reading of the Fourteenth Amendment, and a willingness to take Lopez seriously are in themselves good signs for persons who support judicial enforcement of the right to keep and bear arms.



UPDATE: I haven't found anything yet on Karen Williams.

Michigan Supreme Court Justice Maura Corrigan has three notable gun cases, but none sheds direct light on her RKBA views. In a 2004 case, she wrote the majority opinion in a 5-2 decision creating a "good faith" exception to Michigan's exclusionary rule. The case involved a home search that discovered a firearm and marijuana. A robust Fourth Amendment is an important secondary protection for Second Amendment rights, and the Fourth Amendment has been devastated by "good faith" loophole for the exclusionary rule, as I detail in an Akron Law Review article.

Also in 2004, Justice Corrigan joined a majority opinion reversing the conviction of a longtime Michigan gun rights activist who had sold a firearm to undercover police officers in a sting operation. Justice Corrigan agreed that because the defendant had complied with Michigan's laws regarding handgun sales, his actions were not illegal. The decision bodes well for her attitude towards some of the law enforcement abuses and aggressive interpretation of gun control statutes which have too often characterized the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In 2001, Justice Corrigan was part of 4-3 majority which applied a "strict textualist" interpretation to the Michigan Constitution, thereby negating an attempting to prevent Michigan's Shall Issue concealed handgun licensing law from going into effect. The Michigan Constitution allows petitioners to stop a new statute from going into effect by gathering sufficient petitions to put the statute to a popular vote in a general election. However, the Constitution forbids delaying the implementation of a new statute which has an appropriation therein, and the Michigan licensing law included a one million dollar appropriation for county licensing boards. As Justice Corrigan pointed out, anti-gun advocates still could have petitioned for an initiative to overturn the licensing statute; they were simply barred from preventing the statute from going into effect in the period before the next election.



MORE UPDATE: Diane Sykes (7th Cir., formerly Wisc. Sup. Ct.) voted with a unanimous majority in the Cole case (holding that new Wisconsin constitutional RKBA did not confer a right to carry a concealed gun in an automobile), and with the majority in Hamdan (holding that there was a constituitonal right to carry concealed on one's business premises). (Both cases are discussed in my Albany Law Review article on state constitutional decisions on concealed carry.) According to one report of the oral argument, her questions showed her to be a gun owner, and to be supportive of the RKBA.

Reason:
Even if printed in orange, it is beyond arrogance for a group of scholars who share a particular viewpoint to self-label it the "Standard Model" and thereby attempt to suggest that their adversaries are kooks.
10.29.2005 3:34pm
Ross Levatter (mail):
I'm not a lawyer, but I believe it is referred to as the Standard Model because it is the viewpoint taken by over 90% of articles appearing on the topic in peer-reviewed literature--including major law journals and writings by highly respected Constitutional Law professors--over the last 20 years.

I'm a doctor; it would be like me referring to Koch's Postulates at the standard model, even if a wide segment of society, frequently quoted in the public press and interviewed on major TV outlets, routinely claimed AIDS was caused by homosexuality.
10.29.2005 7:36pm
A Guest Who Enjoys This Site:
"The Standard Model," as presented, is OLDER than the "articles appearing on the topic in peer-reviewed literature--including major law journals and writings by highly respected Constitutional Law professors--over the last 20 years."

In February 1982, a 'Subcommittee on the Constitution' for the Senate Committee on the Judiciary issued a report on 'The Right to Keep and Bear Arms' where their findings were, in virtually every sense, "The Standard Model." This was nearly a full generation before Ashcroft became AG and over a generation before Ashcroft's report.

Even before that, "The Standard Model" was the "standard curriculum" for U.S. History at most any grade level; from Kindergarten to University. I became aware of a change in the textbooks sometime in the late '70s or early '80s; where margin information was provided in chapters on the Constitution and the Bill of Rights which began suggesting that the government had the 'right to restrict what types of firearms could be owned.'

So, in a very real sense, "the Standard Model" of the Second Amendment was THE standard for school curriculum, societal understanding, Congress, and scholars prior to the 'new wave' of "living constitutionalists," "historical revisionists," et al. Thus, I would have to agree that it is beyond arrogance for a group of scholars who share a particular viewpoint to self-label...the "Standard Model" as anything other than accurate, mainstream, historical understanding, and thereby attempt to suggest that their adversaries, i.e., those who adhere to traditional, historically contextual understanding of the Constitution, are kooks.
10.29.2005 11:41pm
Passing By:
Justice Corrigan makes no secret of her stance on the role of the judiciary. She has publicly endorsed A Matter of Interpretation as a guide to the direction of the Michigan Supreme Court.

She heads what is arguably the most activist Supreme Court in the nation, disavowing any notion of stare decisis in relation to cases that the majority deems to have been wrongly decided, even in the face of a decade or two of nonaction by Michigan's Republican legislature (even during the tenure of the Republican governor who appointed her).

Her majority is closely tied to the insurance industry and to big business, as is patent from the consistency by which her court favors those interests. In a relatively recent decision, Kreiner v. Fischer, her court not only undid a long history of consistent interpretation of Michigan's No Fault Law, it enacted by judicial fiat the gist of an initiative to amend that law which had failed with the voters. (Not even the insurance industry pretended at that time that Michigan's No Fault statute provided as the Supreme Court has now judicially rewritten it to provide - hence their initiative.)

I recognize that wild judicial activism that favors industry (or expands governmental immunity) is shrugged off by the pseudo-conservatives who like to mythologize about judicial activism as a creature of the political left, but no true conservative would fail to take note that her court routinely does exactly what the political right pretends to hold in disdain.

She's bright, capable, and is a shrewd politician, but I think the overt parisanship of her record and raw activism of her court would scuttle her chances. (Not to mention, nothing in her record that I have seen would indicate how she would hold on issues of choice.)
10.30.2005 9:40am