Saturday, June 28, 2008

"Pledges of Centrism":

The Chicago Tribune runs a story under the headline, "Roberts' record on high court defies '05 pledges of centrism":

Despite pledges during his 2005 confirmation hearing to hew to judicial centrism, Roberts has shown himself to be a reliable member of the Supreme Court's right flank—rarely, if ever, disagreeing with its positions on civil rights, gun control, the death penalty, affirmative action and a host of other issues.

That may come as no surprise to those who paid close attention to Roberts' career before his elevation to the high court, but the picture is at odds with the non-ideological face he presented after his nomination.

"I come before this committee with no agenda, no platform," Roberts told the Senate Judiciary Committee in 2005. "I will approach every case with an open mind."

Roberts branded himself then a judicial "umpire" who called the balls and strikes as he saw them, without reference to ideology.

"Some people will like what Roberts has done and some people will be upset about it, but it is hard to describe it as the work of a 'neutral umpire,'" said Christopher Eisgruber, a professor at Princeton University and an expert on the court appointments process....

In his three years on the court, Roberts has never sided with the more liberal members against his conservative brethren in a close case. He's never been that uncertain, critical fifth vote. That role has been played almost exclusively by Justice Anthony Kennedy....

The one thing conspicuously missing from the story is any actual pledge of centrism. A pledge of centrism, or a pledge to view the world more like Justices Kennedy or O'Connor rather than like Justices Scalia or Thomas, actually would be an agenda or a platform. (Some politicians actually run on a centrist platform and with a centrist agenda.)

Pledges to keep an "open mind," to be a "neutral umpire," and to lack an "agenda" or a "platform" aren't terribly meaningful pledges -- but what they pledge is a certain open-mindedness and lack of an overarching grand plan. They don't pledge a centrist ideology, or centrist results, or even a jurisprudence that is likely to reach centrist results.

The fact is that Justices, being mature professionals who have spent decades thinking about many legal issues, are likely to have certain views about the law. They may and should pledge to keep an open mind, in the sense of a willingness to listen to and consider contrary arguments. They may and should pledge to be neutral umpires, in the sense of deciding matters based on what they see as the proper neutral principles. But such pledges aren't pledges of centrism.

Justice Brennan, I suspect, tried to keep an open mind and be a neutral umpire; so does Chief Justice Roberts. That they reach very different results simply reflects the fact that open-mindedness and attempt at neutral decisionmaking doesn't equal either judicial liberalism, centrism, or conservatism.

Thanks to How Appealing for the pointer.

What is the right protected in the Heller dissent?

Justice Stevens' dissent in Heller begins by acknowledging that the Second Amendment protects an individual right. The rest of the dissent critiques Justice Scalia's arguments for construing the individual right according to the Standard Model of the Second Amendment. I have not yet studied the Stevens dissent in depth, but on my initial read, I was confused as what exactly is the scope of the individual right that Justice Stevens thinks the Second Amendment does protect?

The Brady Center's amicus brief did present a coherent description of a very narrow individual right protected by the Second Amendment. For the D.C. brief, in contrast, it was hard to figure out what the D.C. lawyers thought the Second Amendment did mean.

I think that one of the greatest weakness of the alternatives (narrow individual right, collective right, states' right) to the Standard Model has been that the non-Standard proponents have had a difficult time articulating what their theories mean, and an even more difficult time explaining how their theories might be applied. In my own view, the reason for the weakness of the alternative theories is that they are not really alternative theories at all; they have just been a continuing repackaing of efforts to deny the validity of the Standard Model.

So I encourage commenters who have had the time to study the Stevens dissent carefully to describe the individual right that the Stevens version of the Second Amendment would protect. Further, if the Stevens individual right model were correct, what would be the practical applications of that right?

Seattle Sonics Trial:

I hadn't realized that a lawsuit just started between the city of Seattle and the Sonics (no longer "Super," right?). I don't know much about the case, but it looks like there are some interesting contract law issues in the case so I flag it for those who are interested. The Sports Economist has a number of posts on the developments in the trial and The Sports Law blog provides an overview of the theory of the case here.

However it turns out, this may be a good subject for a law review note topic.

"Poorer, Older, and Dumber":

Chester Finn on Ohio's economic decline:

Once known as the Mother of Presidents, Ohio is now getting poorer, older and dumber – and making all the wrong moves to reverse the situation. . . .

Ohio already has the fifth-heaviest state and local tax burden in the country (up from 30th in 1990) and finds itself stagnating. Its unemployment rate, 6.3%, is above the national rate of 5.5%, even as the state's work force shrinks as people emigrate. Ohio's median household income is also falling – in 2006 it was $44,500, down 0.5% from the previous year – while the national figure ($48,500) was up 1.6%. During the closing decades of the 20th century, incomes rose twice as fast across the country as in Ohio. . . .

Any sane strategy for turning this around would start by strengthening the state's human capital for a globalized, knowledge-based economy while making Ohio more hospitable to high-tech and brain-powered firms. . . .

In both the public and private sectors, what one witnesses in Ohio are the most senior employees clinging to what's left of the economy, fending off change, demanding ever more burdensome contracts and costlier benefits. The ship is slowly sinking, but as the more agile passengers and crew take to the lifeboats and sail off, those who remain on board climb to the upper decks, determined to grab whatever plunder they can, confident that the rising waters won't reach them.

Why the War on Drugs is Bad for Family Values:

Social conservatives have, with some justification, long warned of the dangers of single-parenthood among the poor, which often leads to poor outcomes for children. However, some of those same social conservatives are also staunch supporters of the War on Drugs. Unfortunately, as Kerry Howley points out in a recent LA Times debate with Kay Hymowitz, the War on Drugs is a major contributor to the prevalence of fatherless children in poor black communities:

[C]hildren tend to do better when they're raised by two biological parents, along a variety of dimensions and controlling for all sorts of factors. It was always a mistake to deny that fact in the service of some larger political crusade.

Still, I'm not sure where blindly repeating "two parents are ideal" gets us. I have yet to meet a single mother who doesn't want help. The low-income single women in "Promises I Can Keep," the study of poor mothers I referenced during our pregnancy pact discussion, hope upon hope for a worthy partner to come along....

For low-income black women, the world really isn't cooperating. We put an awful lot of nonviolent black men behind bars, which is not generally conducive to good fathering. With so many young men absent, the marriage markets are heavily skewed against women, and mothers who might otherwise demand that men stay home and change diapers find themselves in a miserable bargaining position. In his book "The Logic of Life," Tim Harford describes one study indicating that "a one-percentage- point increase in the proportion of young black men in prison reduces the proportion of young black women who have ever been married by three percentage points." Now consider: In New Mexico, 30% of black men between 30 and 35 are in prison. Telling women to want marriage more just doesn't seem like an effective strategy here. Nor does it seem right to suggest that they ought not to have children at all; these women are simply responding rationally to the world as it is.

As I have noted in the past (here and here), some 55% of US federal prison inmates and 21% of state inmates are non-violent drug offenders. And over 62% of incarcerated nonviolent drug offenders are black(most of them poor black males). I don't claim that this racial disparity in drug incarceration is caused solely - or even primarily - by racial prejudice. But even if undertaken for the best of motives, it drastically reduces the available pool of marriageable men in poor black communities. And, as Kerry notes, those men who remain have far less incentive to marry because their stronger bargaining position caused by scarcity makes it easier for them to obtain sex without making any longterm commitment to the women they do it with. Even after drug offenders are released from prison, they are likely to be worse marriage prospects than before, if only because it's hard to get a steady job after being in prison for several years.

Some conservatives might argue that the kinds of men who get arrested for drug possession or dealing wouldn't make good husbands even if they stay out of prison. Perhaps that is true in some cases. But these men still probably beat the alternative of single parenthood. Moreover, Kerry's point about bargaining position is crucial here. If fewer men from these communities were in prison, there would be more competition between them in the dating market and thus stronger incentives for them to behave in ways that appeal to women. To the extent that women prefer men who don't get high to those who do, that might well include staying off the drugs - as well as becoming better providers and fathers in other ways.

UPDATE: Some commenters question the implicit assumptions of Kerry's and my bargaining position point: that many men would like to gain access to sex without making a longterm commitment, while most women prefer men who are willing to make such commitments. All I can say is that both points are backed by extensive social science evidence - far too much to summarize here. Promises I Can Keep, the book cited by Kerry, is among the studies that shows that most low-income women prefer men who will be good longterm providers. John Marshall Townsend's book What Women Want, What Men Want, provides further extensive evidence on both male and female preferences on these points. And Tim Harford's book, also cited by Kerry, provides evidence showing that marriage rates do indeed decline in communities where more men are imprisoned, suggesting that men and women respond to incentives in the way the post posits.

The point is not that men are less "moral" than women. Rather, the two sexes are responding to different incentives. Men can gain a reproductive advantage from casual sex without commitment because one man can impregnate a large number of women. Women, for obvious reasons, can't do this (because the number of pregnancies they can have is relatively fixed, regardless of how much casual sex they have). Therefore, men, on average, have a stronger interest in casual sex without commitment than women do. At the same time, they are willing to restrain such behavior and make longterm commitments if women are in a strong enough bargaining position to insist that they do so. None of these points apply to all men and all women all the time. But they do identify important general tendencies.

Obama and Heller:

While Barack Obama appeared to endorse the Supreme Court's Heller decision in the statement he released on Thursday, at other times he defended the constitutionality of D.C.'s gun ban. This leaves the Washington Post's Howard Kurtz a bit befuddled.

Barack Obama is under hostile fire for changing his position on the D.C. gun ban.

Oh, I'm sorry. He didn't change his position, apparently. He reworded a clumsy statement.

That, at least, is what his campaign is saying. . . .

Regardless of what you think of the merits of yesterday's Supreme Court ruling overturning the capital's handgun law, it seems to me we're entitled to a clear position by the presumed Democratic nominee. And I'm a bit confused about how the confusion came about.

Here's how the Illinois senator handled the issue with the Chicago Tribune just last November:

"The campaign of Democratic presidential hopeful Barack Obama said that he ' . . . believes that we can recognize and respect the rights of law-abiding gun owners and the right of local communities to enact common sense laws to combat violence and save lives. Obama believes the D.C. handgun law is constitutional.' "

Kind of a flat statement.

And here's what ABC reported yesterday: " 'That statement was obviously an inartful attempt to explain the Senator's consistent position,' Obama spokesman Bill Burton tells ABC News."

Inartful indeed.

Related Posts (on one page):

  1. Obama and Heller:
  2. The Candidates on Heller:
Were the Opinions in Heller "Scholarly"?:

I said yes. Sandy Levinson at Balkinizationsays no, and suggests we are living in "parallel universes." More likely, we are using different standards, and perhaps different definitions of the word "scholarly."

Sandy seems define a scholarly Supreme Court opinion on a historical subject as one in which a Justice approaches the subject matter like an objective scholar, say a historian writing his Ph.D. thesis. That does comport with one definition of "scholarly," but given that Supreme Court Justices are not trained as historians but as advocates (lawyers), and don't have the resources to engage in original, objective historical scholarship while a case is pending even if they wanted to, or even to properly critique the existing literature, I think this is a bit much to ask.

(And yes, the fact that this is a bit much to ask suggests a weakness in originalism; indeed, any theory of constitutional interpretation that requires Justices to consider outside scholarship of any sort is going to be problematic in that (a) the Justices won't be trained in the relevant field; (b) knowledge is not static, and it's problematic to rely on a study done yesterday when a study published tomorrow may completely revise everyone's understanding of the subject; (c) the field itself may not be peopled by "objective" scholars, but by people with an ideological or other bias--there are certainly plenty of those in the field of history; and (d)the Justices will be sorely tempted to pick and choose which studies they wish to rely on.)

Anyway, I was using "scholarly" in the sense of "concerned with academic learning and research." By contrast, in past decades when the Supreme Court considered historical matters, the Justices often, not to put to fine a point on it, simply issued unsupported broad, often assertions for which they gave no relevant supporting citations, and which just so happened to support they outcome they wanted. I gave one example in my previous post, and here's another. In Goldberg v. Kelly, deciding that welfare benefits were a property right subject to procedural due process requirements, the Court made the ridiculous (and highly unscholarly) claim that "since its founding, the nation's basic commitment has been to foster the dignity and well-being of all persons within its border." Tell that to the Cherokees, and to the slaves!

If I Ran The Zoo:

The National Association of Scholars has a bunch of posts on "If I Ran the Zoo" of the modern university. The take is based on the Dr. Seuss book of the same name, with the idea being what changes each of us would make to the university if we "ran the zoo." My contribution is here. Many of the other contributions are much closer in spirit to the whimsy and cleverness of Seuss than mine. George Leef's contribution is especially Seussian.

Some Dudes in Trouble at Colorado College:

This parody of this newsletter has led to this result at Colorado College.

What the controversy really illustrates is the absurdity of campus speech codes, which as content-based restrictions on speech simply will not be applied equally. So you get the absurd sorts of results that we see in this case. The "Monthly Rag" refers to male castration. The "Monthly Bag" happens to refer to a sniper rifle and sex in the same publication--not together, but as an obvious parody of "guy stuff." The former is apparently ok. The latter was "received as a threat by members of the Colorado College community." The college president sent out a flash email requesting the dudes to come forward. As a result of all of this, the "dudes" have been found "responsible for violating the student code of conduct policy on violence under the college value of Respect."

Check out this letter from the Colorado College Dean of Students, a classic illustration of Deanspeak. The Dean has given the dudes an opportunity to abase themselves publicly through a "forum for a dialogue about the issues and questions... raised with the posting of 'The Monthly Bag.'" The Dean adds, "Please make sure that this forum happens before the end of Block 8." Apparently the Colorado College Board of Trustees has already wimped out on standing up for free speech.

Wouldn't it be better just to repeal these speech codes and adopt the First Amendment as the governing standard for speech on college campuses? "The Monthly Bag" would be obviously protected speech under the First Amendment (as would "The Monthly Rag," of course). The chilling effect of these sorts of incidents and the consistent pattern of their unequal application is manifest. And it seems to work just fine for public universities.

The indefatigable FIRE is on the case.

Via Phi Beta Cons.

Reason Symposium on Heller:

Reason magazine has an interesting symposium on DC v. Heller, featuring several leading experts on gun rights including my GMU colleague Joyce Malcolm and the VC's own David Kopel and Randy Barnett. Significantly, most of the symposium participants agree that the true impact of Heller will largely be determined in follow-up litigation that will decide the scope of the individual right to bear arms declared by the Court. As I explained in this post, a narrowly defined constitutional right may not be much different from no right at all.

Why Campaign Finance Laws are Likely to be Incumbent-Protection Laws:

Election law scholar Rick Pildes has two excellent posts explaining why the "Millionaires Amendment," which the Supreme Court struck down on Thursday was probably enacted by Congress for the purpose of protecting incumbent legislators against challengers (see here and here). As Pildes explains, laws restricting the ability of independently wealthy candidates to spend their own money on their campaigns benefits incumbents because they usually have much better access to other sources of funding than challengers do. Thus, even independently wealthy incumbents rarely need to spend their own money on reelection campaigns. By contrast, thanks to the existence of laws restricting the amounts which people can contribute to the campaigns of others, independently wealthy challengers spending their own money are "[e]very incumbent's nightmare" because they can spend a lot more than challengers who must rely on difficult-to-raise outside contributions. Pildes compiles some impressive evidence (including statements by John McCain) indicating that Congress inserted the Millionaires Amendment into the McCain-Feingold Act for the specific purpose of reducing the risk of their own defeat.

I. Legislators' Incentives to Enact Incumbent-Protection Laws.

However, Pildes seems to believe that the Millionaires Amendment is at least somewhat exceptional, and that many if not most other campaign finance laws might promote political competition rather than undermining it. I find that conclusion implausible. After all, campaign finance laws can only be enacted if they have the support of incumbent legislators. And incumbents have very strong incentives to support "reforms" that entrench them against potential challengers and oppose any reforms that might make the challengers' task easier. Even if - in the abstract - it is possible to design a system of campaign finance regulation that creates a better electoral process than that which would exist in the absence of regulation, it is highly unlikely that real-world legislators would vote for such a system. Instead, they are likely to support reforms that entrench incumbents and oppose any that might have the opposite effect.

Allowing incumbent legislators to write campaign finance laws is somewhat like appointing a committee of wolves to develop new security arrangements for chicken coops. Even if the current security system is flawed, the wolves will probably make it worse rather than better. After all, the wolves' main interest is ensuring their own ability to gobble up the chickens, a goal that would be frustrated by the installation of better security measures.

II. How Political Ignorance Exacerbates the Problem.

Pildes might argue that this danger can be defused by attentive voters. If voters pay close attention to the details of campaign finance laws and punish those legislators who vote for incumbent-entrenching proposals, Congress might have an incentive to promote "good" reform laws and abjure policies like the Millionaires' Amendment. Unfortunately, we know that most citizens have little or no knowledge of politics and public policy and that it is actually rational for them to remain ignorant. It is highly unlikely that any but a tiny fraction of Americans have the kind of detailed knowledge of campaign finance law necessary to be able to tell the difference between potentially beneficial reforms and incumbent-protection scams. Thus, it should be easy for incumbents to dress up laws that handicap challengers as public-spirited efforts to "take money out of politics." The "Millionaires' Amendment" itself is probably an example of this. After all, it looks superficially like an attempt to diminish the political influence of the wealthy for the benefit of the poor and middle class, and was sold that way to the public.

If voters were knowledgeable enough to tell the difference between "good" campaign finance laws and Trojan horses that benefit incumbents, there would probably be no need to worry about campaign finance in the first place. After all, a knowledgeable and attentive electorate could easily learn about the candidates and their policies from sources other than the candidates' 30 second sound bites and ads. For example, they could read newspaper reports, academic studies on the merits of opposing policy proposals, magazine articles, and so on. Campaign finance only matters because most voters are ignorant, and don't pay much attention to politics - thereby turning campaign ads into important sources of information because they are among the few such sources that many voters will actually see. But that very ignorance makes it highly unlikely that voters will know enough to punish politicians who enact incumbent-protecting campaign finance reforms.

Related Posts (on one page):

  1. Rick Pildes on The Danger of Incumbent-Protecting Campaign Finance Laws:
  2. Why Campaign Finance Laws are Likely to be Incumbent-Protection Laws:

Friday, June 27, 2008

Originalism after Heller:

My point yesterday that we're all originalists after Heller is more limited than Orin understandably takes it to be. Orin is right that none of the justices is completely faithful to originalist approaches to constitutional interpretation. Justice Thomas comes the closest, but even he strays. As I noted in my post yesterday, and as Orin comments, non-originalist precedents are a particular barrier for many originalists. That's especially so for the "faint-hearted" kind who think there is some independent value in respecting precedent.

What's interesting about Heller is precisely that it called on the justices to make decisions about a matter of important constitutional text in the absence of controlling precedent, that is, it called on them to write on a clean slate. There could be no retreat to precedents (though Stevens did make some effort at this). So what could be the basis for decision? Where would the justices turn as a matter of first principles?

Orin answers: "In that setting, it seems inevitable that both sides would focus a lot on originalist claims. . . You would expect the legal opinions to battle over the only available legal ground to fight." But was it really so inevitable? Was originalism really the only available legal ground?

That Orin and I think it obvious and inevitable that the justices should as a matter of interpretive principle concentrate so heavily on what commentators, dictionaries and other usages of the 18th century had to say about phrases like "keep arms," "bear arms," "the people," and the "militia," may only indicate that he and I have bought very much into this method. But the fact that not just Orin and I, but also every justice on the Court, in this rare and pristine constitutional moment, grasped for originalism as at least a cover for their views indicates that something more profound has happened in our constitutional culture.

Not so long ago, perhaps as recently as 20 years ago, there would have been a large and dominant body of opinion in the academy and in the judiciary for the view that such sources were stultifying, antiquated, crabbed, wooden, and anachronistic. Why care what these dead men thought when there has been so much empirical learning about gun-control policy, about its effects on crime, accidents, and death rates?

Originalism would not have been seen as the only available ground, or even the main ground, on which to fight. Yes, the justices might have made some sweeping observations about the Declaration of Independence, or about antiquated musket-bearing militia members. That's characteristic of the opinions of the era. But would we really have had the extensive and detailed originalist engagement we saw between Scalia and Stevens yesterday? I suspect, instead, that the majority and dissenting opinions of a Supreme Court from the 1940s to the 1980s in this same case would have looked much more like Justice Breyer's opinion. Some justices would have agreed with his conclusions and cited studies about the need for these laws, some would not have agreed and would have cited counter-studies and statistics, and others would simply have urged deference to the democratic process.

I am not necessarily saying that the justices did especially well in their deployment of originalist sources yesterday. Sandy Levinson, for one, thinks the originalism in the Heller opinions was very shoddy "law-office history." (See his posts here and especially here) Based on my limited reading of the matter, I agree with Orin that Justice Scalia got the better of the argument, or at least that he reached the better originalist conclusion. But others are far more qualified to make judgments about the history of the Second Amendment.

And it is certainly true, as Orin suggests, that the justices will issue many more opinions in the coming years in which originalism is barely mentioned, as in the campaign-speech decision yesterday. But this doesn't really go to my point about the ascendance of originalism, since in many other constitutional contexts we do have an overlay of thick constitutional law (precedents) that even originalists feel they must grapple with. The First Amendment, where precedent is especially well developed, is the most notorious example of this. None of the justices is really an originalist when it comes to the freedom of speech. Aside from the beautiful and stirring rhetoric of Justices Holmes and Brandeis about the supposed libertarian speech ideals of "those who fought for our independence," originalism has played no role to speak of in the development of free-speech doctrine. The ascendance of originalism isn't likely to change that at this late date.

I don't claim that we're all good originalists, or that we're consistent originalists, or that we're originalists forsaking all others. I am not even saying that the dissenting justices really believe in originalism as a methodology. I don't know whether they do. But even if they don't, the fact that the legal culture has developed to the point where they believe it must be engaged in a landmark case, and indeed must be a focus of a lengthy dissenting opinion in which they all join, is itself significant.

This originalist to-and-fro happens more and more across many constitutional contexts, even where there are precedents and policy considerations on point. Yesterday was simply the most crystalline example of this trend toward respect for a methodology that in living memory was greeted with guffaws. That's really all I mean when I say, "We're all originalists now."

Related Posts (on one page):

  1. Originalism after Heller:
  2. What Does Heller Say About Originalism?:
What Does Heller Say About Originalism?: A number of commentators (including my co-bloggers) have pointed out that both sides in Heller took an originalist approach to whether the Second Amendment guarantees an individual right. Does this mean that originalism is on the rise? That we are all originalists now, as Dale suggests?

  I'm not so sure. In Heller, there were essentially no precedents on the books, and there were plausible originalist arguments on both sides. (I think the majority's view was more persuasive, to be clear, but I think the dissent's was at least plausible.) In that setting, it seems inevitable that both sides would focus a lot on originalist claims. If the original public meaning is up in the air, and there isn't much else to go on among accepted legal materials, you would expect the legal opinions to battle over the only available legal ground to fight.

  The hard question is what happens as precedents accumulate, and the pool of accepted judicial authorities therefore expands. Judges and Justices soon can pick and choose from among the accepted authorities, and after awhile originalism becomes just one of the many possible tools out there. Even originalist arguments often become only partial originalist claims in that settting. That is, an judge purporting to make an originalist claim will often accept some of the precedents in the area as inviolate and will then make an originalist claim only within a narrowed scope that is still considered unsettled (an approach Justice Thomas took in his Rothgery dissent this week --more on that later).

  If you're an originalist, the real challenge is pushing judges to rely on original public meaning when it's not the only game in town. Otherwise you'll have pockets of originalism and no more. So you might have a 5-4 battle over original public meaning in Heller , but on the same day the Court will hand down a 5-4 battle over campaign finance in Davis v. FEC in which none of the Justices assert any originalist arguments.

Related Posts (on one page):

  1. Originalism after Heller:
  2. What Does Heller Say About Originalism?:
Liberal and Conservative Justices on Individual Rights:

The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides. Or perhaps it's not as remarkable as we've been led to think.

So begins my opinion piece published at I then discuss areas in which the conservative Justices have taken a broader view of individual rights than the liberal Justices--commercial speech, expressive association, election-related speech, property rights, racial preferences, free exercise of religion, "hate speech"--and conclude:

There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them.

Three articles on Heller

Miller, Colt 45s, and Natural Law. Scotusblog. This article for the "Heller Discussion Board" provides a brief overview of Brian Frye's excellent article on Miller, which was cited by Justice Scalia. Next, the article says that DC's ban on all self-loading rifles and handguns is almost certainly unconstitutional under the Heller test. Finally, the article discusses the presence of natural law in the Heller opinion, and suggests that the strong judicial affirmation of the natural law right of self-defense may, in the long run, have significant global effects.

Over at ReasonOnline, I argue against the complaints of libertarians who complain that Heller did not go far enough. I analogize Heller to the initial Supreme Court decisions in the 1930s which began to enforce Equal Protection and the First Amendment. It would be unrealistic to expect a 1934 court to enforce those rights in a maximalist way, without the foundation of decades of doctrinal development. The same point applies to the Court's new jurisprudence of Second Amendment enforcement.

Conservative Activists Key to DC Handgun Decision is my article for Human Events. This article is not about EJ Dionne's unfounded complaints about "judicial activism." It's about the influence of citizen activists who made helped ensure that handgun prohibition remained rare in the U.S., and that a sufficient number of Supreme Court Justices were appointed by Presidents who agreed with the Standard Model of the Second Amendment.

Heller and incorporation of the Second Amendment:

Along with many others, I noted yesterday that the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:

With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.

Op. at 48 n. 23.

The footnote is a whipsaw; it reads like one person originally wrote the first line and, seeing it, another came along and insisted on adding the second. The first sentence suggests that just as Cruikshank was wrong (and under-theorized) on First Amendment incorporation it was also wrong (and under-theorized) on Second Amendment incorporation. But the second sentence notes two post-Cruikshank opinions confirming that the Second Amendment limits only federal power. There's been some speculation that Justice Scalia may not have had five votes for a more unequivocal pro-incorporation statement. The generally more cautious, incrementalist, and minimalist tendencies of Chief Justice Roberts may have prevailed here, as did minimalism on other important questions the Court avoided (noted in a post yesterday by Orin).

Nevertheless, on re-reading the decision, I noticed a passage that seems relevant to future litigation on the incorporation question. In the middle of his review of post-Civil War enactments, Justice Scalia highlights the importance to the newly freed slaves of the right to keep and bear arms in the home. He also reviews how federal authorities took steps to prevent vengeful and racist southern legislators from infringing this right. Mike O'Shea at Concurring Opinions also points to this discussion as significant on the incorporation issue. It is, as he notes, exactly the kind of evidence that scholars have relied upon to support incorporation.

Especially significant are these sentences from Heller discussing congressional understanding of the Civil Rights Act of 1871 and the Fourteenth Amendment:

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

Op. at 43-44.

Interestingly, the quote from Rep. Nye supports incorporation through the Citizenship Clause, rather than through due process, though Nye himself believed blacks already enjoyed the right in common with all citizens. The right to keep and bear arms for self-defense could be considered an implicit and indispensable aspect of "citizenship" protected by the first sentence of the Amendment. Others might argue that the right is a privilege or immunity protected against state intrusion.

Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.

Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.

Related Posts (on one page):

  1. Supreme Court Cites Lysander Spooner!:
  2. Heller and incorporation of the Second Amendment:
Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:! Buried in Justice Scalia's exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment:
The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.
In other words, the Supreme Court has now rejected the "collective rights" reading of the Ninth Amendment that has been put forth by Akhil Amar and Kurt Lash. Justice Scalia adds the following footnote that deals with an example used by both to justify a collective rights model of the Bill of Rights:
JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.”
Given how rarely the Supreme Court ever mentions the Ninth Amendment, this is big!
Did Justice Ginsburg Repeatedly Fall Asleep During Yesterday’s Session of the Supreme Court?--

Here is part of Tony Mauro’s account of yesterday’s session of the US Supreme Court:

When Scalia was reading his own opinion Stevens occasionally shook his head in disbelief. And Stevens jousted back. With emphasis on the word "genuine," Stevens said that "a genuine judicial conservative" would not have inserted the Court into the "political thicket" of the gun rights debate as Scalia had done.

Through it all, the rest of the Court seemed either calm or exhausted on this, the final session of the Court's term before it adjourned for the summer. Wakefulness escaped Justice Ruth Bader Ginsburg repeatedly throughout the Scalia-Stevens confrontation, and Justices Stephen Breyer and David Souter seemed to be struggling to stay awake at times as well. In fact Stevens, age 88, seemed to be the only dissenter with any spark or vigor. Chief Justice John Roberts Jr. smiled broadly as he opened the session, and Justce Clarence Thomas, who often seems bored or disengaged on the bench, seemed unusually animated.

Am I reading Mauro correctly? Did Justice Ginsburg “repeatedly” fall asleep on the bench during yesterday’s session of the Supreme Court?

To reduce the strain on our increasingly elderly Court, might we consider term limits? Steve Calabresi and my article on this issue can be downloaded from the bottom of this SSRN page.

UPDATE: If 18-year term limits had been instituted long ago, half the Court (all of them Republican appointees) would already be gone and Justice Thomas would be stepping down next year. Justice Ginsburg would be serving for 3 more years.

The idea is not that most justices are unable to do their work (though in recent decades perhaps a quarter of them have been unable to do their work competently during their last year on the Court). And the oldest justice, Stevens, is reportedly in excellent physical and mental health; if I were Justice Stevens, I'd keep going to set the record.

The question of when to retire is one that each justice should make for himself (or herself) based mostly on personal preferences. But the question for designers of a judicial system is what patterns of tenure lead to the best Court. The point should be to get a Court filled with justices at or near their peak in performance.

2d UPDATE: I had no idea that Justice Ginsburg had fallen asleep on the bench before -- indeed, fallen asleep during argument — and that the mainstream press failed to mention it, just as the press covered up some of the sleeping on the bench and mental confusion of some elderly justices in the late 1980s.

New Process for Internet Top-Level Domains:

It's not the sexiest issue around, I realize, but the new proposal that the Internet Corporation for Assigned Names & Numbers (ICANN) has approved, for opening up the space of top-level domains, is an important little moment in Internet history, and should be recorded as such so that the historians of the future don't think we were all oblivious to what was going on. [See the NY Times story here, and AP's here; ICANN's discussion of the new proposal can be found here] When ICANN first took over the Net's domain name system in 1998, a lot of us called for it to do something along these very lines, but better late than never. Our reasoning went something like this: The original top-level domains (.com, .org, .edu, .mil, .int, .gov, .net) were chosen, back in 1984, for no real reason at all; Jon Postel, who was basically in charge of the net's naming and numbering systems from its inception until ICANN took over, more-or-less picked them out of a hat, having no idea (in 1984!) what this "Internet" thing would become down the road or why you'd ever need more than 7. There were (and are) NO technical reasons for having only 7 (or 11, or 14, or 278, or any specific number) top-level domains; the naming architecture was built to allow an almost infinite number of TLDs (another one of the truly brilliant scaling mechanisms built into the network that has allowed it to become "the Internet").
Opening up TLD-space is a really good idea -- though not because we necessarily need more TLDs. Personally, I don't really care whether there's an .XXX, or .stuff, or .oldtimeradio, or .Postfamily, or .university, etc. available. Maybe that'll make the Internet a richer, more interesting Internet, as people find new ways to manipulate and utilize this new structure; maybe it won't. No, opening up TLD-space is a good idea because the scarcity was entirely artificial, a means for maintaining a stranglehold over critical Internet resources (domain names). Artificial scarcity is generally speaking a bad thing; people manipulate it to make things valuable that have no inherent value (like domain names); we call the people who maintain artificial scarcity in valuable goods "monopolists," and we don't like them -- for damned good reasons.

"A Vanishing [Albanian] Tradition: Virgin Women, Living as Men":

From the New York Times News Service.

Islamic Agreements in American Courts:

An interesting dispute litigated in a Texas appellate court (partial dissent here) having to do with "a Mahr[, which] is an Islamic religious custom whereby the husband contracts to give the wife a sum of money, either at the time of the marriage or deferred in the event of a divorce." Some of the most interesting arguments -- "those regarding the Establishment Clause, public policy, and Islamic law" -- were found to be waived, and the decision rested on fairly technical questions. Still, it might give one a sense of the kinds of cases that are likely being litigated elsewhere, and are likely to be litigated in the future.

As I mentioned before, I think the right approach for the American legal system is to simply enforce these contracts as written, without regard to their religious character. Some such contracts might be unenforceable because they are supposedly substantively or procedurally "unconscionable" (a pretty hard standard to meet), or because they are somehow restrained by state family law, or because one of the parties can show duress under standard secular legal rules (again, a pretty hard standard to meet in the absence of express threats of illegal conduct). But generally speaking they should be enforceable, just as contracts are generally enforceable even when we think one party has less "bargaining power" (an ill-defined concept) than the other. We shouldn't nanny-state Muslims any more or any less than we nanny-state the Amish or evangelical Christians or Orthodox Jews or the secular.

I'd reject therefore any Establishment Clause challenges to the contracts, unless they by their terms call for theological judgment -- in which case the better solution would be for the contracts to expressly call for arbitration by tribunals that can make such theological judgments, and then for secular courts to generally enforce any arbitral property settlements or monetary awards. The one complicated question is what should be done if the contracts call for enforcement by arbitral tribunals that apply sex-, race-, or religion-discriminatory rules. It's possible that under the secular law having to do with enforcement of arbitration agreements, such discriminatory arbitration might be against public policy and thus the results of it might be unenforceable; I don't know what the rule ought to be. But again the basic principle should be to apply to Muslim contracting parties precisely the same rules that we apply to anyone else.

So What Gun Regulations Are Reasonable? Perhaps the question most commonly asked by reporters about yesterday's decision in Heller, is how it will affect the constitutionality of other gun laws. I believe Justice Scalia signaled that regulations short of a ban should be scrutinized the way we do "time, place, and manner" regulations of speech when he equated the Second Amendment with the First: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not."

An article by Gary Barnett, a rising 3L at Georgetown Law, just appeared in the Georgetown Journal of Law and Public Policy contending that the doctrines construing the individual rights in the First Amendment should be applied analogously to the rights protected Second Amendment. (This is what he calls the Common Law Constructive Method.) He provides a very useful survey of First Amendment doctrines and then considers how they might need to be altered or refined to work in the Second Amendment context.

His article, The Reasonable Regulation of the Right to Keep and Bear Arms can be downloaded from SSRN here. Here is the abstract:
The Supreme Court has recently held in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. That decision, however, is only the beginning of the inquiry. Individual rights, via the police power, are subject to reasonable regulation. The difficult question remaining is whether a particular regulation is unreasonable, unduly infringing on an individual's right to keep and bear arms, and is therefore unconstitutional. This note proposes a workable analytic approach to addressing this question. Guided by the Common Law Constructive Method, this note takes First Amendment time, place, and manner doctrine and transposes it onto the Second Amendment.
Here is a taste of his analysis (which I have edited to omit references to First Amendment cases discussed elsewhere in the article):
The Common Law method of construction teaches an important lesson about the reasonable regulation of the right to keep and bear arms. If the very same degree of scrutiny that is applied to restrictions on speech in a pubic forum were applied to restrictions on guns in a public forum, far more gun laws would be upheld as constitutional than laws restricting speech. This is because, with gun laws, the government can almost always provide a safety rationale for enacting a particular regulation. In other words, any gun restriction can be justified on the grounds of safety. This effectively eliminates the half of the test requiring a significant government interest. In contrast, in First Amendment law, absent a clear and present danger, speech rarely threatens health and safety in the same way. This inability of the government to have an ever-present safety rationale creates an inherent protection for speech within First Amendment law. In other words, because it is more difficult for the government to articulate a significant interest, it can enact fewer restrictions. This lack of protection in the Second Amendment law should be supplemented by requiring a law be the least intrusive means to achieving the government’s stated end. . . .

Determining whether a regulation is narrowly tailored . . . is a difficult task. This is where the wisdom embedded within First Amendment law is quite useful. The Supreme Court . . . has already promulgated a feasible approach: if a government restriction results in a substantially adverse effect on the non-target group from effectively asserting their Second Amendment rights, then that restriction would be unreasonable. For example, a trigger lock requirement on a handgun, intended to combat the social harm of accidental firearm use, would most likely have a deleterious effect on an individual’s ability to protect herself effectively against an armed robber. The non-target group, those wanting to exercise their right of self defense, would, for all intents and purposes, be prohibited from effectively acting in self-defense, a constitutionally protected end. Such a requirement would not be narrowly tailored . . . and therefore would be unconstitutional. . . .

The second requirement for a government restriction to not infringe an individual’s right to keep and bear arms, and thus be reasonable, mirrors the third prong of the First Amendment analysis—that any restriction leave open ample alternative channels of communication. This requirement is designed to safeguard against the encroachment on the protected ends of the First Amendment. To ensure that this requirement is satisfied, a law must allow for the continued accomplishment of the constitutionally protected end. The same is true of the Second Amendment. Although it does not expressly protect any specific means, it does protect specific ends. Therefore, as in First Amendment law, a restriction must leave ample means of accomplishing the ends protected by the Second Amendment.
This article is a useful starting point for anyone who wants to think seriously about how to distinguish reasonable from unreasonable gun laws.
NY Times on Future Gun Litigation.--

In the New York Times, Adam Liptak (admirably) writes a straightforward article on the effect of Heller:

Coming Next, Court Fights on Guns in Cities

The individual right to bear arms identified by the Supreme Court on Thursday will have little practical impact in most of the country, legal experts said, though Washington’s comprehensive ban on handguns used for self-defense in the home will have to be revised, and similar laws in several cities are also vulnerable.

Most state and city gun restrictions appear to be allowed under the ruling, including licensing laws, limits on the commercial sale of guns, restrictions on guns in places like schools and government buildings and prohibitions on the possession of firearms by felons and the mentally ill. “Dangerous and unusual” weapons can also be banned, although that phrase was not fully defined.

Justice Antonin Scalia, writing for the majority in the 5-to-4 decision, also suggested that bans on concealed weapons would probably pass — new locution alert — Second Amendment muster. Justice Scalia added that the court’s list of permissible restrictions was not exhaustive.

The legal battlegrounds will be cities with ordinances similar to Washington’s essentially complete ban, most notably Chicago.

“It’s really the municipalities that are the offenders,” said Robert A. Levy, a lawyer on the winning side of the case and an architect of the victorious strategy.

“There is likely to be quite a flood of litigation to try to flesh out precisely what regulations are to be permitted and which ones are not,” Mr. Levy said. “The challenges are likely to be in Chicago, New York, Philadelphia and Detroit.”

In fact, a lawsuit against Chicago’s very restrictive ordinance was filed almost immediately after the court’s decision. Four Chicago residents and two gun rights groups asked the federal district court there to strike down the ordinance.

Adrian M. Fenty, the mayor of Washington, said the city was taking steps to comply with the court’s ruling. Officials here are considering an amnesty period in which handgun owners can register them without penalty, Mr. Fenty said at a news conference.

Mr. Fenty emphasized that it remains illegal to carry handguns outside the home and that only registered guns may be kept at home. Automatic and semiautomatic weapons will generally remain illegal, he said.

In addition to Chicago, as Justice Stephen G. Breyer wrote in a dissenting opinion, several of its suburbs in Illinois, including Evanston, Morton Grove, Oak Park, Winnetka and Wilmette, ban the possession of handguns in many settings. Toledo, Ohio, bans some kinds of handguns, Justice Breyer wrote, and San Francisco would have a similar ban had it not been pre-empted by state law.

As the list of affected localities demonstrates, gun control laws of the sort most likely to be affected by Thursday’s decision are almost exclusively urban. Indeed, some 40 states pre-empt local gun regulations, indicating significant tensions between state lawmakers and municipal officials. . . . .

The only odd statement in the article is that restrictive laws "are almost exclusively urban," when about half of the cities mentioned in the article are suburban. It would be better to say that most such laws are urban and suburban, not rural.

Washington Post on Heller.--

Unlike Reuters, the Washington Post is able to cast doubt on the Heller decision in ways that one expects from the more sophisticated organs of the establishment:

Justices Reject D.C. Ban On Handgun Ownership 5-4 Ruling Finds 1976 Law Incompatible With Second Amendment

The Supreme Court struck down the District of Columbia's ban on handgun possession yesterday and decided for the first time in the nation's history that the Second Amendment guarantees an individual's right to own a gun for self-defense.

The court's landmark 5 to 4 decision split along ideological grounds and wiped away years of lower court decisions that had held that the intent of the amendment, ratified more than 200 years ago, was to tie the right of gun possession to militia service.

While the decision left for another time how the standards by which gun-control laws nationwide will be evaluated, it was decisive about the District's law, the strictest in the country. In addition to prohibiting ownership of handguns, the city also requires that shotguns and rifles be kept unloaded and disassembled or bound by a trigger lock.

"We hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," Justice Antonin Scalia wrote. He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The Second Amendment, Scalia said, "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

The opinion, the last and perhaps most anticipated ruling of the court's current term, delivered a bold and unmistakable endorsement of the individual right to own guns. At the same time, it raised as many questions as it answered about the ability of government to restrict gun ownership to promote public safety, a point made in detailed rebuttals from the liberals on the court, both from the bench and in two lengthy dissents.

Justice Stephen G. Breyer said the decision "threatens to throw into doubt the constitutionality of gun laws throughout the United States," and he called that a "formidable and potentially dangerous" mission for the courts to undertake. He was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

As if to underscore the point, D.C. officials, who expressed disappointment with the ruling, vowed to replace the now-voided gun ban with strict handgun regulations, raising the possibility of further litigation.

Reuters on the "New Right" in Scalia's opinion in Heller.--

James Taranto has some fun at Justice Stevens's expense and then quotes and criticizes an amazing passage from Reuters:

"Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote [Justice Antonin] Scalia, a hunter," the news service reports today. Justice Stevens is 88, and he is generally considered old. If this right really dated back 217 years, Reuters could not describe it as new.

Reuters's spin — in a news story no less — is outrageous. The individual right to own a gun is not a "new right." It predates the 2d Amendment and was the interpretation given by a few early commentators on the 2d amendment. The individual right to arms has persisted at least as a substantial theory for over 300 years.

That the 2d Amendment protects only a collective right of states was a view expressed by no framer or early commentator. It was mentioned rarely before the Civil War and became a popular theory only in the 20th century. Although it was very commonly held by modern academics until about 10 years ago, finally even historians had to face the fact that no framer or early commentator ever said that the 2d Amendment protected a collective state's militia right and some early commentators had expressed an individual rights view of the 2d Amendment.

So about 10 years ago, scholars began to adopt a new theory — the civic rights view. Under the civic rights view of the 2d Amendment, the right is nominally an individual one, but the state is free to determine who may exercise it. That is the "new right" that was put forward in the historian's brief and the "new right" that Justice Stevens tried to introduce into the Constitution in his dissent. Although again no framer or early commentator ever expressed this civic rights view — and it was virtually unheard of until a decade ago — it at least is not directly contrary to some of the evidence of an individual right, since the civic rights view has a minor individual rights component.

If Justice Stevens's dissent had prevailed and it had become the law of the land, that would have been a "new right," since almost no one had ever heard of this interpretation of the 2d Amendment until scholars largely invented it fairly recently.

Justice Breyer and the Culture Wars: I think it's illuminating to compare Justice Breyer's dissent in DC v. Heller with his dissent in Zelman v. Simmons-Harris, 536 U.S. 693 (2002), the Cleveland school voucher case from a few years ago. Like Heller, Zelman is a "culture wars" case. To many liberal elites, both school vouchers and guns seem foreign and suspicious. They both threaten the common enterprise of a civil and enlightened society, even if poor people and folks from the flyover states seem to like them. So the interesting queston is, how does Justice Breyer approach the constitutionality of these provisions — permitting school vouchers in Zelman, and banning handguns in Heller?

  In his Zelman dissent, Justice Breyer reasons that public school vouchers are unconstitutional because they "risk[]" creating "a form of religiously based conflict potentially harmful to the Nation’s social fabric." That is, they are unconstitutional because there is a possibility that they could lead to tension among religious groups. Justice Breyer speculates that such programs might lead different religious groups to feel that they are not getting a fair shake:
How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest–say, the conflict in the Middle East or the war on terrorism? . . . Efforts to respond to these problems not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government.
  As I read Breyer's Zelman dissent, his perception of a risk that the law could have a harmful result that touches on religious practice is enough to strike it down.

  Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld:
  These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.
  What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respondent and his amici do not convincingly answer.
(emphasis added)

  It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.

  To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.
Randy Barnett Comments on Heller in the WSJ.--

In the Wall Street Journal, Randy Barnett has some extravagant praise for Justice Scalia's opinion:

Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous "friends of the court" briefs.

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or "precedents" that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge.

Justice Stevens, in many respects my favorite justice, needs better clerks — or a better interpretive jurisprudence. As I noted earlier, he was led astray by the weak historian's brief, which not only misled Stevens about the past but induced him to use the tenuous and discredited mode of judicial reasoning that Randy identifies.

Justice Breyer’s dissent, on the other hand, is just plain embarrassing — if possible, even more embarrassing than his book.


Thursday, June 26, 2008

Revisiting the SG's Brief in Heller: Back in the spring, the Solicitor General's Office of the Justice Department took a lot of heat for taking a middle-ground position on the Second Amendment in DC v. Heller. As I blogged at the time, the heat seemed misdirected to me: After all, the SG has an institutional client to represent, and a lawyer can't ignore the needs of his client. The Justices certainly realize that. But with Heller now decided, I wonder if the SG's Heller brief also looks like a pretty good tactical move from a pro-gun rights perspective.

  Consider that the case ended up being extremely close: The vote was 5-4, with not a vote to spare. Taking a harder line position might have alienated that fifth vote. Plus, the majority opinion did not draw any disagreement from the Justices voting to affirm with its statement that traditional forms of gun control like felon-in-possession laws were left undisturbed by the Court's ruling, suggesting that none of the Justices were interested in going so far. True, the Court did not decide the standard of review and then remand, as the SG's brief recommended: Instead the Court decided the issue without needing to announce the standard. But from a purely tactical perspective, it seems to me that the SG's brief may have been more savvy than many people gave it credit for being. The middle ground brief not only didn't hurt the pro-gun rights side but quite possibly helped it.
Harsh Interrogation of Al Qaeda Suspects:

It's pretty clearly not the spin the author (who lionizes--but also reveals the identity of--an investigator who didn't lay a hand on suspects) wants to emphasize, but this New York Times article strongly suggests that harsh interrogation techniques, including waterboarding, helped U.S. investigators get some very important information out of some very high-level Al Qaeda detainees.

That would not surprise me. Whatever one thinks about the morality, legality, or political widsom of using such interrogation techniques, the oft-heard (at least by me) trope that harsh interrogation techniques, including things we would all acknowledge to be torture, are completely ineffective, is nonsense. Whether other techniques might be even more effective, and under what circumstances, is a separate question.

Speaking of Congratulations on Citations by the Supreme Court,

let me offer special congratulations to Brian Frye, a young lawyer and 2005 graduate of NYU School of Law, whose article The Peculiar Story of United States v. Miller, 3 N.Y.U. J. L. & Liberty 48 (2008) was cited by the majority. Citations to such articles by people who aren't academics, and who aren't solidly established in their field (the way Don Kates and Stephen Halbrook were), are especially rare, and especially worth noting.

The Political Implications of the Heller Opinion -- Please Comment:

Sorry our comments were down most of the day; if you'd like to comment about the political implications of the opinion — what it's likely to mean for the election, for the gun rights and gun control movements, and the like — please comment here. If you'd like to comment about the opinion as such, please do so on this thread below. If you'd like to comment about the legal implications of the opinion, such as what future challenges are likely to arise, how the opinion's reasoning may affect other areas of the law, and the like, please do so on this thread below.

The Legal Implications of the Heller Opinion -- Please Comment:

Sorry our comments were down most of the day; if you'd like to comment about the legal implications of the opinion — what future challenges are likely to arise, how the opinion's reasoning may affect other areas of the law, and the like — please comment here. If you'd like to comment about the opinion as such, please do so on this thread below. If you'd like to comment about the political implications of the opinion, please do so on this thread above.

The Heller Opinion -- Please Comment:

Sorry our comments were down most of the day; if you'd like to comment about the opinion, please comment here. If you'd like to comment about the legal implications and political implications of the opinion, please comment on those threads above.

Carl Bogus's Unpersuasive Comments on Heller.--

I have been reading the exchange at the Federalist Society website on the Heller case.

I found the post by Carl Bogus at best uninformed and (unintentionally) misleading. Bogus wrote:

A careful study that compared the nine year period before the ban was enacted with the nine years following enactment, and then compared what happened in D.C. with the immediately surrounding areas in Maryland and Virginia, found that the handgun ban reduced gun-related homicides by 25% and gun-related suicides by 23 percent. Colin Loftin, Ph.D., et al., “Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia,” 325 New Eng. J. Med. 1615 (Dec. 5, 1991). The law did not turn Washington into the Garden of Eden, and crime rates fluctuated, particularly during the last few years of the study when the use of “crack” cocaine was increasing and homicides increased dramatically. Nevertheless, the effect of the law was both immediate and sustained, and things would have been worse without it.

From what I've seen, the Loftin study that Bogus points to should not be taken seriously. A simple Google search would have revealed why. According to Dean Payne’s re-analysis, if you use Loftin’s homicide and suicide data, adjust for population changes (as you must), and use per capita rates (as you must), the DC ban is associated with more deaths after the ban, not fewer. While Payne does not argue that the opposite effect is present, the problems that he points to in the Loftin study should render it useless for answering the question that Bogus wants to answer.

Here is part of the devastating 1994 analysis of the Loftin paper by Dean Payne:

Loftin suggests that the District's 1976 restrictive handgun licensing, effectively a ban on new handguns, prevented an average of 47 deaths per year. Inexplicably, the report fails to mention the rapid shrinkage of the District's population, or the rising population of the surrounding community in Maryland and Virginia. When homicides and suicides rates are expressed as per-capita rates, any apparent post-1976 benefit enjoyed by the District vanishes.


The core data of the report shows that the average monthly number of gun-related homicides and suicides dropped significantly in DC after it imposed its handgun ban, whereas non-gun deaths in DC and gun and non-gun deaths in the surrounding MD/VA communities did not drop.

Let me restate that data, but combining gun and non-gun deaths:

Mean numbers of homicides and suicides Loftin, et al. data


before ban

after ban



District of Columbia




Maryland and Virginia





District of Columbia




Maryland and Virginia




Note that these are deaths per month, not per-capita rates. The study assured us that there were no significant changes within either group, but did not mention actual population sizes or any growth or shrinkage.

I averaged the populations listed in annual FBI Uniform Crime Reports (UCR) and Census Bureau reports, and found substantial changes in the study areas:

Mean population before and after DC ban


before ban

after ban


District of Columbia




Maryland and Virginia




I also added up the homicides reported in the UCR. My pre-ban numbers matched Loftin's figures, but the post-ban numbers show a large discrepancy. I find about 100 fewer homicides within DC and about 80 more in MD/VA than are evident in Loftin's numbers. Here are both sets, but expressed as per-capita rates:

Mean annual homicide and suicide rates per 100k residents





My homicide count

District of Columbia




Maryland and Virginia




Loftin's homicide rates

District of Columbia




Maryland and Virginia




Loftin's suicide rates

District of Columbia




Maryland and Virginia




Loftin suggests that DC's handgun ban saved 47 lives per year — 3.3 gun-related homicides and 0.6 gun-related suicides per month. This view collapses when the per-capita rates are examined. Some lives were saved by the overall death rate decline visible in both groups, but the body count dropped mostly because many people moved out of the District of Columbia. Body counts in neighboring areas didn't drop simply because the declining death rates were outpaced by a rapidly growing population.

According to my count [but not Loftin’s], the District experienced a 3% better post-ban homicide rate reduction than did the neighboring communities. This is the only portion of the reduced homicide rate that could be attributed to DC's more restrictive handgun control, and amounts to about 6 lives per year. This is too small to be statistically significant.

According to Loftin's numbers, adjusted to a per-capita basis, the District's post-ban benefit vanishes altogether. Its proportionate rate reductions are smaller than those achieved by its neighbors.

It may still be true that the fractions of homicides and suicides related to guns were reduced. This must not be mistaken for a reduction in the actual homicide and suicide rates. Concerning suicide in particular, Loftin's suggestion that this example supports the Zimring-Cook weapons-choice theory over the substitution observed by Sloan-Rivara is directly contrary to the data.


Loftin's report dismisses a number of confounding factors, but fails to present adequate justification for doing so. Despite claims to the contrary, the presented measure of lives saved by the District's restrictive handgun policy is structured such that it is inherently contaminated by:

- lives saved by a region-wide drop in homicide and suicide rates from other causes, affecting both study areas;

- lives saved by the population exodus from the District;

- killings in which non-firearms means were substituted for firearms.

My analysis suggests that essentially all of the benefit perceived by Loftin is the result of this or similar contamination.

Finally, the study period ends in 1987, just as Washington DC began suffering a continuing homicide wave that earned it the dishonor of being the Murder Capital of the United States. It is doubtful that many opponents of restrictive handgun controls will be swayed when a city experiencing a doubling of its already horrendous homicide rate is simultaneously heralded as a successful example of such controls.

That the New England Journal of Medicine would publish a time-series article that did not account for population changes over roughly a two-decade period is embarrassing, but then peer review seems to suffer when gun control articles are involved.

I must confess that, unfortunately, this isn’t the first time that Carl Bogus has had trouble with inconvenient evidence. I remember during the dispute over Arming America that Bogus was writing a review and sought my permission to cite one of my unpublished drafts. Before I called him, I confirmed that his own university library’s special collection had a copy of the published Providence Probate records that Michael Bellesiles had used – and grossly misrepresented in Arming America. I called Bogus, gave him the name and number of the reference librarian I spoke with, and tried to get Bogus to spend an hour in his own university’s library confirming that there were major problems with Bellesiles’s account before Bogus finalized his review. Bogus refused even to look at the contrary evidence I urged him to examine, a decision that in part led him to seriously misjudge the work he was reviewing.

Stuff White People Like--Comparing People to Hitler:

Comparing people to Hitler is an easy way for white people to get a strong point across to the less enlightened, or the insufficiently white. Everyone knows who Adolf Hitler was. And everyone knows that Hitler was very, very bad..... No matter what your gut reaction may be at that point, do not disagree with that white person. Otherwise, well, you love Hitler....

It's also critical that you avoid the fatal mistake of getting creative and comparing people you don’t like to other evil dictators, such as Joseph Stalin or Fidel Castro. With few exceptions, white people are actually fond of almost any dictator not named Hitler, and your remark that "this is just like something Mao Zedong would do" will be met with blank stares and possible social alienation. This is because, with the exception of Hitler, oppressive dictators share a passion for many of the things white people love- such as universal health care, conspiracy theories, caring about poor people while being filthy rich, and cool hats. Stick to the script and compare things you don’t like to Hitler, and Hitler alone.

Hat tip: Instapundit.

Lessons for Gun Rights Supporters from the Property Rights Experience, Part II - A Narrowly Defined Right May Not be Much Better than No Right at All:

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a "collective right" protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn't enough. If the scope of the right is defined narrowly by courts, recognition won't mean much in practice. The history of constitutional property rights is instructive in this regard.

I. Recognizing Property Rights Without Actually Protecting Them.

Unlike in the case of the Second Amendment right to bear arms, the Supreme Court has always recognized that the Fifth Amendment's Takings Clause and other property rights provisions in the Constitution protect individual rights. However, since the 1930s, the Court has defined the scope of these rights so narrowly that they get very little protection in practice. For example, the Court has always held - as it reaffirmed in Kelo v. City of New London - that property cannot be condemned unless the taking is for a "public use." Purely "private" takings are - and always have been - forbidden by the Court. However, the Court defines "public use" to include virtually any conceivable benefit to the public, even ones that might never actually materialize. As a result, the Court still lets government condemn virtually any property for virtually any reason. In theory, there is an individual right here; in practice, not so much.

Similarly, the Court has long recognized that some regulations of property that don't involve physical occupation of land by the government might might still be onerous enough to be considered "takings" requiring "just compensation" under the Fifth Amendment. However, in cases such as Lucas v. South Carolina Coastal Commission and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court decided that such regulations are only presumptively considered takings if they permanently wipe out 100% of the economic value of the property in question. If a regulation wipes out 98% of the value permanently, or %100 of the value for a period of twenty years, the property owner is probably out of luck. In practice, government officials can almost always draft regulations in such a way that their impact is not quite permanent and/or allows the owner to retain some tiny percentage of his land's value. Thus, property owners have little or no real protection against regulatory takings - despite the Supreme Court's recognition of an individual right.

II. Implications for Gun Rights.

It is easy to see how this point applies to gun rights. Although Justice Scalia's majority opinion in Heller firmly establishes the Court's recognition of an individual right to bear arms, it also lists a large number of "presumptively valid" firearms regulations, including "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The opinion also recognizes the validity of "the historical tradition of prohibiting the carrying of "'dangerous and unusual weapons.'" Many of these exceptions to the right to bear arms could potentially be used to swallow up the rule. Most obviously, "laws imposing conditions and qualifications on the commercial sale of arms" could easily be drafted in ways that make the purchase of firearms prohibitively difficult or expensive for most ordinary citizens. For example, Justice Scalia emphasizes that the right to bear arms is historically rooted in the right to self-defense. State and local governments could potentially enact laws requiring would-be gun purchasers to provide extensive and specific evidence that they really do need a firearm for self-defense before allowing them to purchase guns. Larry Solum notes that Scalia's opinion also might allow prohibitively burdensome registration requirements:

Because of a concession made in oral argument, the Court's Opinion in Heller did not address the [constitutionality of DC's] licensing and registration requirements. It seems likely that simple registration requirements will survive Heller, but one obvious countermove to Heller would be to establish burdensome registration and licensing procedures. Whether such provisions would survive Heller is uncertain. One can imagine lower court judges upholding very burdensome requirements, or striking them down. Heller surely implies that extremely burdensome registration or licensing procedures would be struck down, but one can imagine a level of burden that would in practice discourage gun ownership but that might survive post-Heller scrutiny.

As my colleague and prominent Second Amendment scholar Nelson Lund points out, several of Scalia's other exceptions might also be problematic:

Scalia’s opinion also includes dicta indicating that some important forms of gun control will be upheld. Examples include bans on carrying concealed weapons; disarmament of convicted felons; gun free zones in “sensitive places” like schools and government buildings; restrictions on the commercial sale of firearms; and bans on “dangerous and unusual” weapons, apparently including short-barreled shotguns and machine guns.

Some of the examples are problematic.

Is it truly consistent with the original meaning of the Second Amendment to leave an American citizen defenseless for the rest of her life because she was convicted of a non-violent felony like tax evasion or insider trading?

On what basis will courts decide whether particular places are sufficiently “sensitive” to justify disarming citizens who go there? Did New Orleans become a “sensitive” place after Hurricane Katrina, thus allowing the government to confiscate weapons from law abiding citizens whom the government did not and could not protect from roving bands of looters and criminals?

Did short-barreled shotguns, which are very useful for self-defense and in many cases superior to handguns, become “dangerous and unusual” just because Congress decided to restrict them in 1934?

Scalia himself may not intend these parts of his opinion to be interpreted so broadly. But what counts is not his personal intent but the interpretation placed on his language by lower court judges, and ultimately by swing voter justices in future Supreme Court cases clarifying Heller. The property rights experience suggests that it may be very difficult to convert judicial recognition of a constitutional right into meaningful protection for people in the real world.

Indeed, Justice Scalia's similarly ambiguous opinion in the crucial 1992 Lucas regulatory takings case has over time been rendered ineffective because swing vote justices interpreted it narrowly in the 2002 Tahoe-Sierra case (both briefly discussed above), which held that even a regulation that wipes out all the value of property for years is not presumptively considered a taking so long as it doesn't wipe it out permanently. Scalia voted with the dissenters in that case. But the court's decision turned on the views of swing voters Anthony Kennedy and Sandra Day O'Connor.

In sum, judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right. It would be a big mistake to assume otherwise.

Related Posts (on one page):

  1. My Legal Times article on Heller and the Enforcement of Rights by the Courts:
  2. Reason Symposium on Heller:
  3. Lessons for Gun Rights Supporters from the Property Rights Experience, Part II - A Narrowly Defined Right May Not be Much Better than No Right at All:
  4. Lessons For Gun Rights Supporters From the Property Rights Experience I - The Importance of Ideological Divisions on the Court:
Quick Kopel thoughts on Heller

Due to server problems, I haven't been able to log in to post anything until moments ago. My initial impressions on the Heller decisions and its implications are here, in a Pajamas Media article. I also did a 14-minute podcast about Heller on Tomorrow I'll have a piece on the Human Events website looking at some of the political background for the case. Later today, I'll be writing a short item for Reason's Hit & Run weblog and something longer for Scotusblog.

It is a great honor to be part of the VC, whose thoughtful analysis of the opinion today has been the best in the world. As readers of Heller already know, Eugene Volokh is cited thrice in the majority opinion--and the Second Amendment isn't even his main area of scholarly research. Kudos also to Jim Lindgren, whose Yale Law Journal article demolished the Michael Bellisiles fraud book Arming America, a book which, if the fraud had not been exposed, might have gravely misled the historically-minded Court.

Finally, for those of you are counting VC cites, my brief for a law enforcement coalition International Law Enforcement Educators & Trainers Association (ILEETA) is cited four times in Justice Breyer's dissent, as part of his presentation of the pro/con data on handguns.

Justice Breyer's self-refuting dissent in Heller.--

I have been reading Justice Breyer’s dissent in Heller.

I suspect that it may go down in history as one of the strongest arguments AGAINST balancing tests. If the restriction on liberty were trivial, then it might be easy to use a balancing test to uphold the DC statute’s ban on handguns. Or if handgun bans were known to be spectacularly successful in reducing death and violence, then fair-minded judges might determine that even very substantial restrictions on liberty could be balanced away by the overwhelming benefit of gun control.

But gun control has very little effect on rates of violence or death (I think the evidence, while contradictory, points on balance to a small reduction associated with some gun controls.) Given this, the DC case should be an easy one for balancing: a major restriction of liberty (an outright ban) cannot be justified by a small or nonexistent gain in public safety.

That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge or – more likely – that the balancing test he posits is not workable in practice. Thus, Breyer’s own opinion may be the strongest possible refutation of his jurisprudential approach.

Three Cheers for Alan Gura, Robert Levy, and Clark Neily:

Alan (of Gura & Possessky), Robert (of the Cato Institute), and Clark (of the Institute for Justice) are the lawyers who spearheaded the Heller litigation. As I understand it, many in the gun rights movement were skeptical about the decision to challenge the D.C. handgun ban, because they were worried that there weren't five votes yet for the individual rights view. But Alan, Robert, and Clark pushed ahead, and it turned out they were absolutely right. This is their victory, though all of us are its beneficiaries.

Federalist Society Debate About Heller

is here, featuring Ted Cruz and Nelson Lund vs. Carl Bogus and Adam Winkler. Much worth reading.

Levinson on Heller: Sandy Levinson offers up this very interesting post at Balkinization.
The Candidates on Heller:

Both Barack Obama and John McCain released statements on the Supreme Court's decision in D.C. v. Heller.


I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today's decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.

Today's decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia's ban on handguns and limitations on the ability to use firearms for self-defense.

Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today's ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is an important right- sacred, just as the right to free speech and assembly.

This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.

Related Posts (on one page):

  1. Obama and Heller:
  2. The Candidates on Heller:
Heller on a first read:

Here are some initial impressions of the Heller opinion, which I think was both the right result and rightly minimalist:

1. We’re all originalists now. One of the most extraordinary things about this case is that it presented, for the first time in modern memory, a chance for the Supreme Court to decide the meaning of a constitutional right without a heavy overlay of “constitutional law” – a body of relevant decisions from the Supreme Court itself. For “faint-hearted” originalists, like Scalia and others, the existence of non-originalist precedents can be a barrier to reaching originalist results. But here the issue was one of truly first impression, presenting a “clean” controversy. It therefore allowed the Court to address the issues on first principles of constitutional interpretation.

So what principles did the justices reach for? It’s not surprising that Justice Scalia turned to the text and to originalist sources to determine the meaning of the words of the Second Amendment. And while the Stevens dissent makes noises about United States v. Miller as if it controls the outcome in favor of the constitutionality of heavy regulation of firearms, most of his dissent grapples with originalist questions. Stevens might not be a very accomplished originalist, or you might think he was wrong in this instance, but the mere fact that he and the three who joined him paid such obeisance to originalism on a matter of constitutional first impression confirms again its ascendance as a methodolgy.

2. Judicial scrutiny of the right. The Court does not tell us what level of scrutiny it will apply to restrictions on the right, but it does rule out rational-basis scrutiny. Op. at n. 27. (It also rules out “balancing.” More on that below.) This leaves us, according to the Court, with either intermediate scrutiny or strict scrutiny. There will be a lot of argument in the coming years about this, but as between the two, based on this opinion I think the more likely scrutiny is the strict kind. The Court’s opinion is quite exhaustive about the importance of the Second Amendment in preserving what it calls at various points the “pre-existing” and “inherent” right to self-defense. At least as to restrictions that go to this core self-defense aspect of the Second Amendment right, as contrasted with the use of guns for sporting and hunting purposes, which the Court does not address, it’s hard to see the Court accepting any but the most narrowly drawn laws serving compelling justifications. There is no analysis in the opinion, for example, to suggest why this core aspect of the enumerated Second Amendment right should be given less judicial protection than the core of First Amendment or other enumerated rights. In fact, the Court explicitly compares the Second Amendment right to free speech, which all regard as fundamental. Op. at 62. It may be, of course, that there will be a larger number of “compelling” reasons for regulation of gun ownership (e.g., public safety) than of, say, speech. And that may mean in practice that state regulation will have an easier time passing strict judicial scrutiny. But the tone of the opinion suggests that the courts will have to take Second Amendment rights very seriously.

3. Limitations that are presumptively constitutional. As I read the decision, and especially the parts of the decision Orin has noted, several kinds of firearms regulations appear to be constitutional, at least as a general matter, whatever the level of scrutiny the courts settle on: (1) prohibitions on gun ownership by felons and the mentally ill; (2) prohibitions on gun possession in “sensitive places” like schools and government buildings, presumably including courthouses; (3) laws regulating the commercial sale of guns; (4) laws prohibiting the possession of unusually dangerous weapons, like sawed-off shotguns and machine guns; (5) prohibitions on carrying concealed weapons, which the Court describes as having been common and constitutional under Nineteenth Century case law; and (6) laws providing for the safe storage of weapons to prevent accidents (Op. at 60). The Court does not, of course, decide whether these restrictions are constitutional, and certainly doesn’t give a green light to unnecessarily onerous forms of these restrictions, but broadly speaking they’re probably acceptable. Note also that the Court’s list of presumptively acceptable limitations is not exhaustive.

4. Some brush-clearing. While the National Rifle Association is already planning challenges to other gun-control legislation around the country, there is a threshold issue their briefs and lower courts will have to address. The Court explicitly reserved the question whether the Second Amendment is incorporated into the Fourteenth Amendment’s Due Process Clause such that it operates as a restriction on the states as well as the federal government. Op. at 48 n. 23. I doubt this will prove an obstacle to challenges to state or municipal regulations, and the Court suggests it won’t be, but it will have to be addressed.

5. Down with “balancing”. In addition to rejecting rational-basis review of gun regulations, the Court also rejected a “balancing” approach to judicial scrutiny that has become popular among legal academics in other constitutional contexts like Equal Protection and substantive due process. The balancing approach was urged today by Justice Breyer in dissent, and was firmly rejected by Scalia. The approach would involve courts “balancing” the government’s interests in regulation against the particular individual interests at stake in the asserted right, and then deciding, somehow, which of the two has more weight. The Court rejected this approach as basically indeterminate and “judge-empowering,” since it operates as practically no constraint on judicial decisionmaking. Additionally, the Court notes: “We know of no other enumerated constitutional right whose core protection has been subjected to a free-standing ‘interest-balancing’ approach.” Op. at 62. The Court then compares the right to the enumerated right to free speech, under which the Court would not engage in interest-balancing before deciding whether to protect the expression of unpopular views. I would add that balancing approaches are also unusually likely to favor government intrusion on individual rights, since the government often claims grand society-wide harms from the exercise of individual rights and timid courts often defer to legislative judgments about the seriousness and likelihood of those harms.

6. Unanimity at last. Chief Justice Roberts came in with the hope of producing more unanimous decisions from the Court. While today’s decision was 5-4, it was actually unanimous on one point: there is an individual right protected by the Second Amendment. The split came over the important question of the scope of the right and whether the D.C. law itself was constitutional, but the underlying individual-right theory prevailed over a collective- or states-right interpretation that would give no single person the ability to challenge any type of arms regulation. Thus, an idea that not so long ago seemed radical and even frivolous to many academics and judges now has the assent of all of the Justices, representing a wide range of views about constitutional law and theory. And that leads to the final point...

7. Scholarship matters! I join others in congratulating Eugene, Randy, and many others for the influence that their own careful scholarship had on this decision, as evidenced by the Court’s extensive and significant citations to their work.

Lessons For Gun Rights Supporters From the Property Rights Experience I - The Importance of Ideological Divisions on the Court:

Like most of the other VC members, I am happy that the Supreme Court has ruled in today's Heller decision that the Second Amendment protects an individual right to bear arms. However, there are many parallels between this victory and the recent experience with the Supreme Court's property rights jurisprudence that suggest this victory might not be as effective as many hope.

Over the last 20 years, both property rights and gun rights advocates have sought to get the courts to protect a largely moribund constitutional right. From the 1930s to the 1980s, federal courts almost completely abandoned the protection of property rights, with the important exception of requiring "fair market value" compensation for complete physical occupation of property by the government. During that time, the courts allowed property to be condemned for virtually any reason that government officials chose to give (despite the Fifth Amendment's requirement that property can only be taken for a "public use"), and also held that virtually any regulatory restriction on property rights short of complete physical occupation did not count as a "taking" that requires "just compensation" under the Takings Clause. One can tell a similar story about the federal courts' approach to the Second Amendment during the same period.

Since the 1980s, the Supremes have issued several decisions that expand protection for property rights in various ways. Even Kelo v. City of New London was an improvement over previous precedents. However, the net result has been only a slight increase in genuine judicial protection for property rights. Although the Court has trumpeted its new-found respect for property and even emphasized in Dolan v. City of Tigard that it no longer considers property rights a "poor relation" among constitutional rights, the actual results of its decisions belie these rhetorical pronouncements. For the most part - as far as the Supreme Court is concerned - it is still the case that government can condemn property for virtually any reason, and still true that property owners can't get compensation for all but a few of the most extreme "regulatory takings." The reasons for this outcome are instructive, as they apply with equal force to gun rights. In both cases, protections for the rights in question are weakened by and ideological divisions on the Court and narrow definitions of the right in question. This post addresses the issue of ideological division on the Court. I'll consider the importance of the scope of the right in question in a follow-up post.

I. The Ideological Split Over Property Rights on the Court.

With very few exceptions, the effort to strengthen protection for property rights was categorically opposed by the Court's liberal justices. Any property rights case that got to the Court almost starts with four guaranteed votes in favor of the government. This has two important effects.

First, any division in the ranks of the conservative justices is likely to be fatal for property rights in the case at issue. For example, Justice Anthony Kennedy voted with the liberal justices in Kelo and several other important property rights cases, leading to important setbacks for property supporters.

Second, and perhaps more important, it is extremely difficult to establish strong protection for any constitutional right if such protection is supported by jurists on only one side of the political spectrum. Any time the opposing party captures the presidency, there is a high likelihood that new justices will be appointed to the Court who will vote to undermine protections for that right. For example, President Bill Clinton's appointees - Stephen Breyer and Ruth Bader Ginsburg - have consistently voted against property rights since joining the Court. Even if there were a stable pro-property rights majority on the Court today, it would likely be undercut in the future any time a Democratic president gets some Supreme Court appointments.

II. Implications for Gun Rights.

Obviously, both points are extremely relevant to gun rights. In Heller, the four liberal justices made clear their strong opposition to any meaningful protection for individual rights under the Second Amendment. Thus, at least in the short term, protection for gun rights is dependent on the five conservative justices sticking together. As in the case of property rights, Justice Kennedy may turn out to be a crucial swing voter, and it is far from certain that he is willing to uphold gun rights against any but the most extreme infringements on them.

As with property rights, the ideological division on the Court also leaves any gains vulnerable to future reversal in the event that a Democratic president is elected. The liberal justices' opposition to gun rights is also shared by the vast majority of liberal judges on the lower courts. If Obama (or any other Democrat) becomes president, he will likely appoint justices who share these views. Even if Obama does not make this issue a major priority in his nomination decisions, the fact that he will want to nominate justices who are liberal on other constitutional issues will ensure a strong likelihood that they would also embrace the dominant liberal position on this issue. This happened in the case of property rights as well. Opposition to property rights was probably not a major factor in Clinton's choice of Ginsburg and Breyer. Indeed, Clinton was among those who later vehemently denounced the Kelo decision. Nonetheless, these two justices turned out be property rights opponents (even in Kelo) precisely because Clinton did make a priority of appointing judges who are generally liberal, and such judges are likely to be anti-property rights.

In both cases, the relevant group is liberal jurists, not necessarily liberals in the general population. While many liberal activists outside the Court are sympathetic to property rights (as was certainly evident in their reactions to Kelo), this has had little effect on the attitudes of liberal judges. Similarly, there are prominent liberal scholars such as Sanford Levinson and Akhil Amar who support the individual rights view of the Second Amendment, and a good many liberals in the general population who feel the same way. Their views have so far had little effect on liberal judges.

The Minimalist Court: The major theme of the October 2007 Term, it seems to me, is that we have a minimalist Court with no surprises. There were no major revolutions this Term. Even the big cases were narrow and interstitial. The Court mostly took baby steps.

  It may not seem that way this week, with big cases like Boumediene, Heller, and Kennedy v. Louisiana. But step back a bit. Even these big cases were actually really narrow. Boumediene went where the Court very strongly hinted it was going in Rasul v. Bush back in 2004: The Court's reasoning was limited to the few hundred detainees at Guantanamo Bay, and did not order anyone's release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia. The Court's opinion only deals with child rape capital cases, of which Kennedy's own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun control laws are all constitutional.

  This isn't to say that there were no important cases this Term. But on a historical scale, the 2007 Term is revealing a minimalist Court: It intervenes rarely, doesn't say much when it speaks, and leaves most battles for another day.
The Scholarly Nature of Heller:

Jim notes that the opinions in Heller are very scholarly, especially with reference to historical sources. This marks a vast improvement in Supreme Court opinion writing. Consider, by contrast, the Supreme Court's use of history when it was issuing some of the most consequential decisions in its history, those requiring that every state reapportion each legislative house on one person, one vote principles. In Gray v. Sanders (1963), Justice William O. Douglas wrote, without further elaboration, that the political philosophy of "the Gettysburg Address, Declaration of Independence, 15th, 17th, and 19th Amendments 'can mean only one thing–one person, one vote.'" Never mind that a close reading of all or any of those writings suggests that they don't have anything at all to say about whether one-person, one-vote is a required, or even the best, way to apportion legislatures. This casual misuse of history not only failed to offend the Court, it was quoted favorably by Chief Justice Earl Warren the following year in Reynolds v. Sims.

One can level many criticisms at the modern Court, especially its self-aggrandizing tendency to think that it is not only the last word, but the only word, on constitutional interpretation. But the scholarly quality of the opinions has never been higher.

Some Thoughts on the Supreme Court’s Second Amendment Decision:

Naturally, the most interesting observations are likely to come after people have had some time to digest the debate between the opinions. But for now, a few observations:

1. There’s no substitute for winning elections. The 5-4 conservative-liberal lineup (admittedly, with one of the four being a Bush, Sr. appointee) shows this. These issues aren’t just about winning elections, as I’ll note below. But winning is part of it. My guess is that, if the McCain campaign is smart about this, it can make this an important linchpin of its fundraising (“imagine what would happen to your rights if Justices Scalia and Kennedy retire soon and are replaced by Barack Obama”), of its attempts to energize the base, and of its attempts to bring over swing voters in swing states where the middle of the electorate tends to be pro-gun.

Naturally, the Obama campaign can try the same, as I’m sure it will be doing as to abortion rights. My guess is that such Obama strategies will be less effective than a McCain strategy of hitting the gun-rights point (of course, in ads targeted to particular subsets of the voters): My sense is that pro-gun-ban voters are less dedicated to this view than are pro-gun-rights voters, and that the pro-abortion-rights voters are less likely to be swing voters in swing states. But in any case, both approaches might make sense -- McCain may hit the gun rights issue hard in some places, and Obama the abortion rights issue hard mostly in other places (and especially to energize his base, including Hillary Clinton partisans who might otherwise have been lukewarm towards Obama).

2. In some situations, academic writings make a big difference. My sense is that thirty or even twenty years ago, even most conservative Justices wouldn’t have accepted the individual rights view. After all, support for anti-crime laws has long been a traditional conservative principle. Chief Justice Burger was famously a supporter of the states’ rights view of the Second Amendment. And judges, including conservative judges, tend to be influenced by solid bodies of law created by other judges (even lower-court judges), and back then the unanimous view of federal circuit courts was to dismiss the individual rights view as something of a crank perspective.

I think that the scholarly work on the Second Amendment, starting with Don Kates’ seminal Handgun Prohibition and the Original Meaning of the Second Amendment (Michigan Law Review, 1983) and continuing with the work of Nelson Lund, Sandy Levinson, Joyce Malcolm, Stephen Halbrook, Glenn Harlan Reynolds, Akhil Reed Amar (though his position was a bit more ambiguous), and others, dramatically changed the landscape. At least, the scholarship led conservative judges -- starting with prominent circuit judges and moving on to Supreme Court Justices -- to look seriously at issue, and pointed them to historical evidence that they might have otherwise missed. (Note, by the way, that Kates, Halbrook, and Clayton Cramer, another important historical writer in this field, a cowritten article of whose was cited in the opinion, are not professors, though their articles are academic works. Note also that not all these authors were cited by the Court, but they were certainly cited in the briefs, and their work was relied on by later writers.)

Naturally, the scholarship wouldn’t have succeeded without the underlying evidence, and the 5-4 division on the Court shows that it wouldn’t have succeeded without Justices who were sympathetic to the argument. But I doubt that the Justices would have been as sympathetic, or would have looked closely at all the right evidence, without the work of scholars.

More comments, I hope, to come.

Heller, Justice Stevens’s Dissent, and the “Historians’ Brief.”--

My initial impressions of Heller are much like Orin Kerr's, yet these three things struck me:

1. Both Justice Scalia's majority and Justice Stevens's dissent are quite scholarly, including citations to recent and forthcoming scholarship. Like Orin, I noted the citations to our colleagues Eugene Volokh and Randy Barnett, as well as to others who comment here at the Volokh Conspiracy (including significantly Clayton Cramer).

2. On first reading, I think that the Scalia opinion got it about right: the 2d Amendment protects an individual right, the right is tied to self defense, preambles are preambles (as Eugene Volokh persuasively argued), "keep . . . arms" meant to keep arms, the Miller case has been widely misunderstood as collectivist, many existing legal restrictions on guns are legal, but outright bans on guns and restrictions that render self-defense practically impossible are unconstitutional. Though Orin is right that much is left for later cases, that is simply old-fashioned case-by-case judicial decisionmaking.

3. In dissent, Justice Stevens seems to have been unduly influenced by the brief from historians and law professors putting forward a "civic rights" view. That brief was put together by Carl Bogus and joined by many historians who initially jumped to Michael Bellesiles's defense, including Jack Rakove, Saul Cornell, and Paul Finkelman.

Personally, I was surprised to see Rakove's name on the brief. In January 2001, I was on a panel with Rakove (and Randy Barnett) in San Francisco. Not surprisingly, Rakove and I disagreed about the early history of guns in America (at the time Rakove was supporting Bellesiles's views, a position for which he later publicly apologized). But Rakove and I were largely in agreement about modern policy. When asked about DC's outright ban on guns, Rakove expressed his opinion that such an outright ban would be among the few modern restrictions that would be unconstitutional.

Of course, in 2001 Rakove was just giving his unconsidered opinion regarding a statute about which he knew little, but I was still surprised to see that he had switched sides on the constitutionality of an outright ban on guns.

Congratulations Also to Co-Blogger Erik Jaffe,

whose amicus brief for the Institute for Justice was cited by the majority; and an extra dollop of congratulations to Randy Barnett, who was cited not just by the majority but also once by the dissent (as to an article cowritten with the pioneering Second Amendment scholar Don Kates).

UPDATE: Whoops -- missed the cites in the dissent to our co-blogger David Kopel's mostly law enforcement amicus brief. And, as David points out, "Kudos also to Jim Lindgren, whose Yale Law Journal article demolished the Michael Bellisiles fraud book Arming America, a book which, if the fraud had not been exposed, might have gravely misled the historically-minded Court."

Comments: Our apologies that the comment function seems to be disabled, for all but the 9:13 am post below. I assume it's just a consequence of the high incoming traffic, which right now is running about 4-5x our average. But I don't know. Hopefully it will be back up and running soon; in the meantime, I think the comment thread for the 9:13 post is working.
Key Limitations of Heller: From the slip opinion at 54-55:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [fn: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [citations omitted]
Relatedly, here's the analysis of why the handgun ban violates the individual Second Amendment right on 56-58:
[T]he inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

. . .
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
Of course, the DC government may now try again, enacting another gun restriction that is less severe; presumably that law will need to be litigated, as well, which will force the courts to tell us more about the degrees of scrutiny.
Initial Thoughts on Heller: Our server has been mostly down for the last hour and a half due to the incoming traffic; sorry for the inconvenience, which has been as frustrating for us as for you. On the bright side, that gave us some time to read the opinions. My basic thought after reading Justice Scalia's majority opinion is that it is relatively narrow -- in the sense that it leaves a lot for another day. It recognizes the individual right (citing, by my count, 3 articles by Eugene and one by Randy, not that we academics count such things), but does not resolve the degrees of scrutiny, does not address incorporation, and indicates (without establishing) that traditional gun restriction laws are valid.
The Second Amendment and State and Local Laws:

The Heller decision of course only involved the Second Amendment's effects on federal laws (including laws of federal enclaves, such as D.C.). Whether the Constitution limits state and local gun bans -- which is to say whether the Second Amendment is "incorporated" against states and their subdivisions by the Fourteenth Amendment -- will have to be decided in a future case. The majority doesn't clearly signal its view on the question, but it does suggest that simply citing some late 1800s cases which rejected incorporation (at a time when incorporation was generally being rejected as to nearly all of the Bill of Rights) will not suffice. Here's footnote 23, on page 48 of the majority oinion:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Cruikshank's judgment that the First Amendment wasn't incorporated was of course reversed by "later cases" starting in the 1920s.

Helller Affirmed: The opinion should be available shortly. In a case like this, the details of the opinion are critical; it will take a bit of time to read the decision to get a sense of what it means. SCOTUSblog is reporting that the vote was 5-4, with Scalia writing and the four liberal Justices dissenting.
Helller Affirmed: The opinion should be available shortly. In a case like this, the details of the opinion are critical; it will take a bit of time to read the decision to get a sense of what it means.
Second Amendment:

SCOTUSblog reports:

"Heller affirmed."

Justice Scalia wrote the opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. Justice Breyer dissented, joined by Justices Stevens, Souter, and Ginsburg; there's also apparently another dissent. (Thanks again to SCOTUSblog for their invaluable live-blogging, from which I'm getting all this information.)

This split should be useful to either of the Presidential candidates who wants to make either gun control or gun rights into an election issue -- my guess is that this is more likely to be McCain. Expect McCain ads in states where there are likely many pro-gun swing voters stressing, "your constitutional right to keep and bear arms hangs by one vote." Also expect fundraising letters to likely pro-gun contributors stressing this at length.

Please note that the very early reports sometimes miss important details. I'll be blogging about the case as soon as I read it, and I'm sure some of my cobloggers will do the same.

Logrolling Judicial Appointments:

I see from the news story Orin linked on the new Michigan 6th Circuit Judges that in the end Kethledge and White went through as a logolling deal, as White was originally nominated by President Clinton in 1997 (and withdrawn in January 2001). 32 Republican Senators voted against White, although I can't discern any obvious ideological or other voting pattern to those who voted "Nay."

This sort of bipartisan logrolling over "paired" appointments seems to be common when it comes to appointments to many federal agencies. It has happened for judicial appointments as well in the past, but my sense is that it has been relatively uncommon. I wonder to what extent this will become a working model for judicial appointments during periods of divided government between the President and the Senate, and perhaps even if a minority party filibusters appointments.

The problem, it seems to me, is that there are really only two stable equilibria when it comes to judicial appointments for an opposition party in the Senate, either a presumption of approval or a presumption of opposition. Right now it appears that we have pretty much reached the endpoint of movement from a strategy of cooperation to a strategy of noncooperation, especially with the establishment of a new norm that a minority can block appointments through use of a filibuster. Nor do I see how this development can reverse itself as a political matter to move back toward a cooperative equilibrium. Assuming an Obama Presidency and a Republican minority in the Senate, Republicans may decide to unilaterally disarm on the filibuster issue in the near future. It is hard to see how the Republican base would allow them to get away with this. But even if they do, it is hard to see how that could establish a new long-term cooperative equilibrium when a Republican someday recaptures the White House.

What does seem to be an intolerable and unsupportable situation is the chronic number of open seats on Courts of Appeals. I also wonder how much longer good people are going to be willing to put their names forward to be nominated for judgeships in light of the increasingly awful and outrageous nature of the confirmation process that has developed over time. We talk a lot about the impact of judicial salaries on the willingness of good people to take judgeships, but it seems to me that the unsavory and unpredictable nature of the confirmation process has to be a deterrent as well. Nominees often have to put their lives on hold for years while their reputations are besmirched for political gain.

Put together, this leads me to wonder whether we inevitably will be led to a norm of partisan logrolling of judicial appointments, especially for Courts of Appeals judges. I don't see it happening for Supreme Court appointments, which are too rare and precious. And District Court appointments don't seem to have necessarily devolved into a norm of noncooperation (at least not yet).

As a purely political matter, I thus don't see any alternative to logrolling as a stable equilibrium solution to the confirmation mess. For what it si worth, it was precisely to avoid this situation that Hamilton argued in Federalist 76 for vesting the power of nominations in the single person of the President rather than in a legislative body:

Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

As I read the Federalist, it seems clear to me that at least as far as they were concerned the primary purpose of the "Advise and Consent" role of the Senate was to ensure that the President was nominating qualified people to the bench and not mere cronies. The particular concern was to ensure the independence of the judiciary so that it was not subservient to either the President or the Congress. In my view, this leads to a relatively narrow scope for the Senate's inquiry of a nominee into questions of experience, qualifications, and integrity to uphold the independence of the judiciary as a co-equal branch of government. That also seems to me to be a preferable model of the Senate's role in judicial confirmations than the current situation. I acknowledge, however, that horse is not only out of the barn but almost even out of the pasture at this point. Is hard to see how the confirmation process could ever be brought back to some semblance of functionality.

Regardless of the wisdom of logrolling as a solution to the current problem, however, it seems to me that this is where we are headed, probably permanently.

Don't Give Me Your Talented, Your Smart , Your Educated Masses:

George Will laments how U.S. law keeps educated immigrants out of the United States.

Two-thirds of doctoral candidates in science and engineering in U.S. universities are foreign-born. But only 140,000 employment-based green cards are available annually, and 1 million educated professionals are waiting -- often five or more years -- for cards. Congress could quickly add a zero to the number available, thereby boosting the U.S. economy and complicating matters for America's competitors.

Suppose a foreign government had a policy of sending workers to America to be trained in a sophisticated and highly remunerative skill at American taxpayers' expense, and then forced these workers to go home and compete against American companies. That is what we are doing because we are too generic in defining the immigrant pool.

Any Retirements?: I'm not expecting any announcements of any retirements from the Court tomorrow, but it's worth pointing out that the last day of the Term is one of the more common times that such announcements would be made. (Just to add to the excitement, in case you're not interested in Heller.)
New Michigan Judges: Congratulations to Raymond Kethledge and Helene White, both of whom have been confirmed to the Sixth Circuit, as well as Stephen J. Murphy, who has been confirmed to the Eastern District of Michigan. Kethledge joins the ranks of former law clerks who later became members of the court for which they once clerked; he is also (by my count) the fourth former law clerk for Justice Kennedy to be confirmed as a federal court of appeals judge. (Hat tip: ConfirmThem)

Wednesday, June 25, 2008

A “National Consensus” in Favor of the Death Penalty for Child Rapists.

In the Supreme Court’s decision on Wednesday in Kennedy v. Louisiana, holding that the death penalty is excessive for all rapes of children, I was surprised by the weakness of Justice Kennedy’s arguments about a “national consensus.”

If the American public has a “national consensus” about child rape, it is that the death penalty is appropriate and that the courts are too lenient in punishing first-time offenders. But that’s not the sort of national consensus that Justice Anthony Kennedy wants to follow.

Here are some of the questions I found in two post-1990 studies archived at the Roper Center:

JUNE 1997:

1. Do you favor the death penalty for someone convicted of each of the following? ...

A. Murdering an ordinary citizen
75% Favor
21 Oppose
4 Not sure

B. Sexually molesting a child
65% Favor
31 Oppose
4 Not sure

C. Rape
47% Favor
46 Oppose
7 Not sure

Survey by Time, Cable News Network. Methodology: Conducted by Yankelovich Partners, June 4-June 5, 1997 and based on telephone interviews with a national adult sample of 1,024.

AUGUST, 1991:

1. Do you favor or oppose the death penalty for people convicted of sexual abuse of a child?

47% Favor
45 Oppose
5 Depends (vol.)
4 Don't know

2. Now some questions about people convicted of sex offenses such as rape, sexually abusing a child or incest.

Do you think people who are convicted the first time of sexually abusing children are given too harsh a punishment, too lenient a punishment or is it about right?

2% Too harsh
75 Too lenient
13 About right
10 Don't know

3. When it comes to punishment, do you think sexually abusing a child should be treated as a more serious, equally serious, or less serious crime than raping an adult?

87% More serious
12 Equally serious
1 Less serious
1 Don't know

4. (I'm going to read several pairs of different types of crimes. For each pair, please tell me which one you think is worse.)...

Rape of an adult or sexual abuse of a child...

2% Rape of an adult
90 Sexual assault of a child
7 Both equal (vol.)
1 Don't know

Methodology: Conducted by The Star Tribune, August 6-August 25, 1991 and based on telephone interviews with a national adult sample of 1,101.

Data provided by The Roper Center for Public Opinion Research, University of Connecticut.

Note that in 1997, 65% of Americans favored the death penalty for child molesters, an increase from 1991, before most of the public furor about molestation. If the question had been put in terms of “child rape,” support for the death penalty might have been even higher.

I do not think that the Supreme Court should be mostly following public opinion in determining what the Constitution means. After all, the Constitution was designed in part to protect individuals against the tyranny of the majority. And sometimes the public is too bloodthirsty (e.g., in 1997, 44% favored the death penalty for those who sell drugs to children and 17% favored death for the “victimless crime” of selling drugs to adults).

Yet the Court shouldn’t talk about following a “national consensus” on an issue on which in 1997 only 31% of the American public agreed with the Court and 65% of the public opposed the Court’s view. The justices should admit that they follow ELITE opinion, not the views and morality of the ordinary public. If they can't go that far, they should at least stop preaching to us about a “national consensus” that is little more than a fig leaf for their own (often quite reasonable) policy preferences.

Disclosure: As a policy matter, I oppose the death penalty on practical grounds (not on grounds of desert): it’s costly and probably fairly ineffective – and the possibility of false positives in some cases disturbs me.

$2.5 Million Damage Award in Malicious Prosecution Suit Based on False Accusation of Child Sexual Abuse,

upheld Tuesday by the Connecticut Supreme Court, in Bhatia v. Debek. An interesting discussion of how the malicious prosecution tort formally operates when the defendant is accused of having lied to the police in a way that led to an actual criminal prosecution -- usually the tort, despite its name, applies to unfounded civil claims.

Naturally, it's fairly unlikely that the plaintiff would actually be able to collect the sum, though it depends on the defendant's particular circumstances. (My very tentative understanding is that this sort of behavior generally isn't covered by typical personal liability insurance policies, which are chiefly homeowner's insurance policies.)

Reader Poll on Heller: With Heller just around the corner, but no opinion to read just yet, I figure the only remaining new way to blog on the case is by hosting a reader poll: What do you want the Supreme Court to do in the case?

Do you want the U.S. Supreme Court to strike down the DC gun ban or to uphold it?
Uphold it
Strike it down
Free polls from

  Oh, and I realize that the question is ambiguous and lacks nuance. But hey, we're all just killing time here.
Indiana Computer Consent Case: A few people have e-mailed me about this decision from the Southern District of Indiana striking down Indiana's new law requiring sex offenders to consent to a search of their personal computers. There are some interesting Fourth Amendment issues here, but I think the the Seventh Circuit will reverse on case or controversy grounds. My recent draft article, The Limits of Fourth Amendment Injunctions, covers most of the relevant precedents for those that are interested.
Women and Science Fiction:

Megan McArdle has an interesting post on how to get women interested in science fiction. Some of her suggestions seem plausible. For example, she notes that the closely related fantasy genre is more popular with women than SF (although even fantasy probably has fewer female fans than male ones). However, overall I'm somewhat skeptical. Casual empiricism suggests that most people with a strong interest in science fiction or fantasy literature developed that interest very as children or teenagers. I think it's very difficult to persuade an adult to take an interest in these genres if they never had previously.

Somewhat surprisingly, Megan doesn't mention the most common explanation for the relative paucity of female SF fans: that the genre is mysogynistic and/or lacks strong, well-rounded female characters. Although this conventional view probably had some accuracy forty or fifty years ago, I doubt that it accounts for the gender gap in SF today. Over the last several decades, many left-wing and libertarian writers have entered the SF and fantasy fields, portraying women very differently than in the early days of the genre. And even those early days weren't quite as completely sexist as some think. Say what you will about Robert Heinlein's Starship Troopers, which has plenty of flaws; but it did portray women serving in combat units on an equal basis with men back in the 1950s. Today, there are even quite a few prominent explicitly feminist SF and fantasy writers, such as Marion Zimmer Bradley, Octavia Butler, and Ursula LeGuin.

Even more fundamentally, the sci fi genre - like other genres - responds to market incentives. If there were a large unment demand for feminist SF or other types of science fiction that may be of special interest to women, publishers and writers would have a strong incentive to meet it. The portrayal of women in science fiction has been debated for at least forty years, and publishers are certainly aware of the issue, and would act on it if they smelled profit. The underlying reality, I think, is that SF has less appeal to women than to men independently of the ideology of the writers and the way they portray female characters.

That said, recent data suggest that the gender imbalance in SF fandom may be overstated. This 2001 National Science Foundation surveyshows that 31% of men say they read science fiction books or magazines - a number statistically indistinguishable from the 28% of women who claim to do so.

The NSF's results are so contrary to conventional wisdom that I wonder if there's something wrong with the methodology. The most obvious potential flaw is that many of the women say they read SF only do so on rare occasions and aren't real fans of the genre, whereas the men read more often. However, the NSF did a follow-up question in which 17% of female SF readers say they do so "regularly" compared to 16% of the male ones. The NSF data do still suggest that SF has greater appeal to men than to women. Other studies reveal that women generally read far more than men do, especially in most fiction genres. So if men and women read SF at roughly equal rates, that suggests that the genre is of greater interest to men once you control for their generally lower propensity to read. The same is true of fantasy. Even the wildly popular Harry Potter series, which successfully reached beyond traditional genre readers, apparently has more male readers than female ones.

Even so, I remain skeptical about the NSF data. I wonder if the study simply suffers from random error (i.e. - even a methodologically sound poll will sometimes get an unrepresentative sample just by random chance). Are there more recent surveys that confirm the NSF result or reach different conclusions? Alternatively, if you are a survey research expert, can you point out methodological errors in the survey that I have missed?

UPDATE: Various commenters point out that women in Heinlein's Starship Troopers can serve in some types of combat units (e.g. - piloting starships), but not others (e.g. - not in the infantry). Fair enough, I had forgotten this detail. However, the idea that women should serve in any combat units was well in advance of mainstream opinion in 1959, when the book was published. For that matter, the US military does not allow women to serve in the infantry even today. The main point still stands: Heinlein was not entirely free of sexism (far from it, in fact). But he was more egalitarian than the conventional wisdom of his time.

Michael O'Neill Nominated to DC District Court:

Congratulations to my colleague and friend Michael O'Neill for his nomination to the United Stated District Court for the District of Columbia. Michael is a man of impeccable honor and good judgment and would make a superb judge. It may be that there is too little time for him to get through before the elections this fall, which would be a shame for the country if he doesn't get confirmed.

Oregon Recants on Copyright -- Good News!

A while back I blogged about the State of Oregon's rather outrageous attempts to restrict Internet access to the text of the Oregon Revised Statutes. Happily, they've come to their senses; at a recent meeting of the Oregon Legislative Council, the Council voted unanimously to waive any assertions of copyright in that material. [Thanks to Jason McKerr and Carl Malamud for bringing this to my attention]

Madness on the Right of Publicity Front:

When Cingular released its "Mach 1" and "Mach 2" wireless services, it sent out a press release that included the following language:

"Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers."

Yeager sued for violation of the federal Lanham Act and his common law rights of publicity. Cingular moved for summary judgment on the grounds that their reference to Yeager's flight was protected by the First Amendment, and -- unbelievably -- last week District Judge Frank Damrell denied the motion and held that Yeager's claims can proceed to trial. [Rebecca Tushnet has blogged here about the case] It's a sad commentary on what the First Amendment means these days -- where in heaven's name is Justice Black when we need him?? As Prof Tushnet put it: "This is why the current right of publicity is a terrible, terrible thing. If some people think Yeager is somehow associated with Cingular because of this press release making a single textual comparison with a historical event, that’s because trademark owners have convinced people that ridiculous ownership claims must be okay."

Can the UN be sued for its role in the Srebrenica massacre?

A Dutch court is currently considering whether the United Nations and the government of the Netherlands are immune from a suit brought by families of some of the victims of the 1995 Srebrenica massacre. At Sbrenica, Dutch forces, operating as UN "peacekeepers" lured Bosniacs into areas which were claimed to be safe havens, disarmed the Bosniacs, and promised that the UN peacekeepers would protect the disarmed Bosniacs. When Serbs attacked, the Dutch peacekeepers (unlike peacekeepers guarding some other safe havens) fled, leaving the Bosniacs to be murdered.

In a 2003 article for National Review Online, Paul Gallant, Joanne Eisen, and I made an argument that the UN should be considered complicit in the massacre. The article did not examine the legal arguments for or against the UN or the Dutch government having legal immunity from a civil suit, or from any other legal remedy. Comments from VC readers who can provide information on the particular issues before the Dutch court regarding civil immunity would be especially welcome.

Another Scalia Line on Not Ignoring the Constitutional Text and Traditional Meaning in Favor of the "Values Behind" a Provision:

From today's Confrontation Clause case (Giles v. California):

It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen.

This is the same sort of argument we saw in Justice Scalia's dissent in the self-representation case from last week. We'll see tomorrow if D.C. v. Heller will make it three.

Related Posts (on one page):

  1. Another Scalia Line on Not Ignoring the Constitutional Text and Traditional Meaning in Favor of the "Values Behind" a Provision:
  2. Wild Speculation:
No Heller For You!: No Heller today; come back tomorrow.
The Euros March On:

The reason sports gambling is good for the soul is this: it reminds you that all of those great “hunches” that you have had – you just knew that it was Boston’s year, back in April ‘04, just like you just knew, way back in ’93, that AOL stock would quadrizilliontuple over the next 5 or 6 years – are, in fact, balanced out by a lot of really lousy ones that didn’t pan out (but which don’t stick in the mind nearly as well as the others do). I’ve been using an online sports gambling site – come and get me, federales! – for about 5 years, and I’ve had some fabulous hunches; I did know that Italy would win the last World Cup (when they were 12-1!!), and I did know that the Packers would make it to the NFC championship game (15-1). But over 5 years, I’m about $150 in the hole because of all the ones I’ve forgotten about. [Not that I’m not complaining – I’m happy to pay $30 a year for the entertainment value alone].

I knew that the Portuguese, the Croatians, and the Dutch – certainly the Dutch – would make it through to the Euro 2008 semis, but of course none of them did. [Spain, another one of my pre-tournament favorites, is still in the hunt]. The Croatia-Turkey game was extraordinary and bizarre – 0-0 after 90 minutes of regulation time and 29 minutes of the 30-minute “extra time,” at which point the Croatians finally score; on the ensuing goal kick, with what is literally the last kick of the game, Turkey gets an equalizing goal; the Croatians, psychologically devastated, make a horrible hash of the penalty kick shootout, and Turkey goes through to the semis to meet Germany. It should make for a pretty interesting match-up; over 2 million people of Turkish descent live in Germany, and the two countries have about as complicated a relationship these days as two countries can have, and downtown Berlin, where several hundred thousand people will gather this evening (Berlin time) to watch the game on the big screen they’re setting up, should be one of the more interesting places on the planet at that moment. It’s just a game, right?

And Italy’s loss to Spain exposed all of the contradictory qualities that seem to inhere in Italian soccer. It is a strange and inexplicable thing: the Italians – the Italians! – have always been known for a peculiar brand of plodding, defensive, unimaginative soccer. Italian soccer begins with impenetrable defense, and whatever it takes to make it impenetrable. For people who have so much style, who care so much about style, and who adore stylish and beautiful soccer – there’s a statue of Diego Maradona, for goodness sake, outside the stadium in Naples – they can’t seem to find a way to play with the kind of style and grace that seems to come so easily to them in other fields of endeavor. If they can find a magician – Roberto Baggio in the ‘90s, Francesco Totti more recently – who can conjure up some goals, great; if not, they’ll hunker down and hope they can sneak out some 1-0 wins. It’s not that it’s a bad strategy; they’ve won 4 World Cups, and are perennial contenders at international tournaments. It just seems so un-Italian. This year’s team was, by a considerable margin, the most boring team in the tournament, and though I adore all things Italian, I have to admit I was not at all sorry to see them go.

The Italy-Spain game did have, though, a really memorable image, one that captured, for me, something about why these international soccer tournaments are so wonderful and so important. For a few seconds on the ESPN broadcast, while the Italian national anthem was being played and sung – Italians are among the great national-anthem-singers in the world; they sing at full voice, and at 40 or 50 thousand strong can make an incredible sound – they showed a guy in the Italian section, all decked out in Italian blue (azzurro), tears in his eyes, singing along while alternating between pressing his hands over his heart and blowing kisses to the team on the field. Do us proud, ragazzi!!

Related Posts (on one page):

  1. The Euros March On:
  2. Soccer. Soccer. And More Soccer.
  3. One - Nil:
Kennedy v. Louisiana: SCOTUSBlog is reporting that the Supreme Court struck down the Louisiana child rape statute 5-4 in Kennedy v. Louisiana on the ground that the statute punihses conduct not intended to cause death, with AMK writing joined by the four liberals. Stay tuned for more.

  UPDATE: The opinion is here. The opinion is rather Roper-esque, on a first read. AMK concludes that "there is a social consensus against the death penalty for the crime of child rape," and that the Justices in the majority agree with this consensus. From the conclusion:
  Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court’s own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges.
  These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by “the evolving standards of decency that mark the progress of a maturing society.” Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.
  One response to Justice Kennedy would be that only the Court "established" this proposition; it seems a bit curious to defend the Court's "enmeshed" role by saying that it must be because the Court has given itself that role (especially when its proper application in this case is far from clear). More broadly, does this passage categorically prohibit the death penalty in cases that do not result in death, such as treason? That would be quite a significant change.

  ANOTHER UPDATE: Justice Alito's dissent is pretty devastating, I think. From the dissent:
  A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
  These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.
  Of course, there's a deeper question lurking in the opinions: Is the Eighth Amendment a general tool for invalidating criminal laws that the Justices think are too punitive and therefore unwise? Or is it only a specific tool for invalidating punishments that are way out of the mainstream? I think that's the real 5-4 split on the current Court, and that it explains the vote break-down in this case.
The Wondrous Water Closets of Japan:

Is Japan a model of energy efficiency for the United States to follow? Per capita energy consumption in Japan is far lower than here, but population density is part of the reason. The average American has more living space and travels greater distances. The average U.S. bathroom may also be miserly to state-of-the-art loos across the Pacific. The Washington Post reports on the energy-guzzling toilets that have become quite big in Japan:

Japanese toilets can warm and wash one's bottom, whisk away odors with built-in fans and play water noises that drown out potty sounds. They play relaxation music, too. "Ave Maria" is a favorite.

High-end toilets can also sense when someone enters or leaves the bathroom, raising or lowering their lids accordingly. Many models have a "learning mode," which allows them to memorize the lavatory schedules of household members.

These always-on electricity-guzzlers (keeping water warm for bottom-washing devours power) barely existed in Japan before 1980. Now, they are in 68 percent of homes, accounting for about 4 percent of household energy consumption. They use more power than dishwashers or clothes dryers.

Florida to Buy U.S. Sugar:

The state of Florida has announced it will buy the U.S. Sugar Corporation for $1.75 billion so as to convert farmland to reservoirs. U.S. Sugar owns some 187,000 acres of land around Lake Okeechobee. The plan, which is part of the state's Everglades restoration effort, is to convert much of this land from sugar production to conservation purposes. The remarkable plan, which was hatched in secret, is drawing praise from conservationists, who note that thousands of acres of reservoirs and marshland will do more to help the Everglades than the high-tech re-engineering efforts that had dominated the multi-billion restoration project.

If an E-Mail Is Unopened by the White House, Does It Still Exist?

The Supreme Court's decision in Massachusetts v. EPA that carbon dioxide and other greenhouse gases are pollutants under the Clean Air Act made the eventual regulation of GHGs under the Act a foregone conclusion. Nonetheless, the Bush Administration has been dragging its heels in making the requisite legal findings that would trigger regulatory measures in an effort to delay the inevitable. This morning, the NYT reports on a bizarre twist in this story:

The White House in December refused to accept the Environmental Protection Agency’s conclusion that greenhouse gases are pollutants that must be controlled, telling agency officials that an e-mail message containing the document would not be opened, senior E.P.A. officials said last week.

The document, which ended up in e-mail limbo, without official status, was the E.P.A.’s answer to a 2007 Supreme Court ruling that required it to determine whether greenhouse gases represent a danger to health or the environment, the officials said.

Now the EPA is preparing to release a "watered-down" version of what was contained in the December e-mail that outlines the government's options and will not, in itself, require more regulation.

The Times story also notes that the White House forced the EPA to eliminate certain portions of its analysis, such as the Agency's conclusion that regulating greenhouse gases could produce $500 billion to $2 trillion in benefits. If so, good for them. Such estimates are just this side of complete speculation. They are based on efforts to quantify unpriced benefits. The EPA likes to use such numbers as they can make their regulations look like a better deal when subjected to cost-benefit analysis, but the end result is even less reliable estimates of a regulation's overall economic impact. It would be better for the Agency to explain such impacts in detail without attempting to attach an arbitrary price tag.


Tuesday, June 24, 2008

Report on Politicalization of Hiring for the DOJ Honors Program: We've heard about this before, but the latest report by the DOJ Office of Inspector General on the politicalization of Honors Program hiring at the Justice Department adds a great deal of detail. A few thoughts:

  (1) The basic picture is just disgraceful. The Honors Program is a jewel of the Justice Department, and I think it's very troubling that some within the Bush Justice Department would see it as a way to screen candidates for ideology.

  (2) I was glad but not surprised to read in the report about political officials within DOJ (such as Peter Keisler) who didn't play along or otherwise tried to limit the political emphasis in hiring.

  (3) Although I'm not aware of anything like this happening during the Clinton years, I doubt politics was entirely irrelevant to hiring at the time. When I applied to the Honors Program in the fall of 1997 (and was accepted), it was generally understood among conservative/libertarian applicants that being conservative/libertarian was a negative on a DOJ Honors Program application. It wasn't necessarily an automatic ding, except of course at the Civil Rights Division. But it was a negative in an intensely competitive process. As a result, it was common not to list extracurricular activities that signaled conservative/libertarian viewpoints and that were the kind of thing that an applicant might or might not list on a resume depending on the job. I followed that practice in my case. I remember thinking at the time that I wouldn't have gotten the job otherwise.

  (4) The Bush DOJ officials presumably saw themselves as trying to balance out Main Justice. When I was at Main Justice in the Clinton years, it was heavily Democratic among career lawyers: even in the Criminal Division, which you might think leans more conservative than other sections, most lawyers were Democrats. Still, none of that excuses the kind of political hiring that apparently went on. The goal should have been to even the playing field, if it needed evening, not to engage in affirmative action for conservatives.
If Scalia Writes Heller: Mike O'Shea has been doing wonderful blogging on Heller; he weighs in again with a particularly interesting post, "So Let's Say Justice Scalia Writes DC v. Heller. . . " Whether Justice Scalia could keep a majority in the case is a big question; Justice Kennedy's views at argument seems sufficiently strong that I think Scalia probably could. But then we'll know the answer in 11 or 35 hours, so stay tuned.
Claims Against Iraq Can Go Forward:

Today the U.S. Court of Appeals for the D.C. Circuit released Simon v. Iraq, reversing the district court's dismissal of various claims against the Iraqi government for mistreating hostages during the first Gulf war. Here is the introduction of Chief Judge Ginsburg's opinion for the court:

The plaintiffs in these two consolidated actions sued Iraq, the Iraqi Intelligence Service, and Saddam Hussein (together, Iraq) alleging they had tortured and taken certain of them hostage during the 1990-91 Gulf War. The plaintiffs relied upon 28 U.S.C. § 1605(a)(7), the exception in the Foreign Sovereign Immunities Act (FSIA), § 1602 et seq., that allowed for lawsuits against state sponsors of terrorism. The district court dismissed the actions as untimely and the plaintiffs appealed. Iraq defends the district court’s interpretation of the time limitation in the FSIA and alternatively invokes the political question doctrine.

After this appeal was briefed and argued, the Congress passed the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. No. 110-181, 122 Stat. 3, § 1083 of which revised the terrorism exception to sovereign immunity by repealing § 1605(a)(7) of Title 28 and adding a new exception to be codified at § 1605A of Title 28. Section 1083(d) of the NDAA granted the President the authority to waive § 1083 with respect to Iraq, which he promptly did.

For the reasons that follow, we conclude the plaintiffs may maintain these suits pursuant to § 1605(a)(7), and their cases are timely and justiciable. Accordingly, we remand these matters to the district court for further proceedings.

Fed Program Fuels Mortgage Risk:

The federal government backs a program creating moral hazards and encouraging risky home loans. Why am I not suprprised? The WSJ reports:

Mortgages that allow consumers to put little if any money down when buying a home have largely disappeared as a financing option available from private lenders. But they are still available -- and growing more popular -- through a government-backed program.

That's raising concerns among critics who blame no-money-down mortgages for many of today's housing market woes. And while federal housing officials are moving to end the practice, for now home builders are promoting the programs to move unsold inventory. . . .

The offers -- including "100% financing" -- are made possible due to down-payment assistance programs run by nonprofit organizations. These programs are funded largely by home builders and also by private homeowners desperate to sell. The seller-funded groups provide enough down-payment money to buyers that they can qualify for a mortgage backed by the Federal Housing Administration, which requires at least a 3% down payment.

Supporters of the down-payment programs say they help the FHA fulfill its goal of assisting first-time home buyers. But critics say the programs will burden the government agency, and taxpayers, with bad loans. The FHA, which essentially is filling the void left by the collapse of the subprime market, renewed a push to eliminate the programs this month, after warning that above-average default rates for seller-assisted down-payment programs will force the agency to request a government subsidy for the first time in its 74-year history. The agency says it will need $1.4 billion next year.

NYT on Cone and Harbison Grants:

Today's NYT has an informative article by Adam Liptak on the two habeas cases from the U.S. Court of Appeals for the Sixth Circuit that the Supreme Court agreed to hear yesterday. The article focuses on Cone v. Bell, which is the more interesting of the two, and not only because it is the third time this case has been to the High Court.

Mr. Cone, a decorated Vietnam War veteran, killed Shipley Todd, 93, and his wife, Cleopatra, 79, in their Memphis home at the end of a two-day crime spree in 1980. His only defense was that he had been in the throes of an amphetamine psychosis.

“This proved to be a tenuous defense, at best,” the Tennessee Supreme Court said in affirming Mr. Cone’s conviction and death sentence. There was no solid evidence, the court said, that Mr. Cone was even a drug user.

Indeed, a prosecutor called Mr. Cone’s claim that he was a drug addict “baloney.” Mr. Cone, the prosecutor said, was instead “a calm, cool professional robber.”

It later emerged, however, that the district attorney’s files contained contrary evidence that had not been provided to Mr. Cone’s lawyers. Police reports had called Mr. Cone a heavy drug user and said he looked frenzied and wild-eyed before and after his crimes. The Federal Bureau of Investigation’s files, disclosed still later, said Mr. Cone had been caught with amphetamines while in prison.

At issue is whether federal courts can consider this evidence despite state courts' rejection of Cone's claims.

Related Posts (on one page):

  1. NYT on Cone and Harbison Grants:
  2. Two Sixth Circit Habeas Cases Go Up:

Monday, June 23, 2008

Property Rights Three Years after Kelo, Part IV - What the Feds Have Done:

My earlier posts on eminent domain reform since Kelo omitted reference to the federal government's reform efforts. In this post, I'm going to rectify that unfair omission. So here's a summary of the federal government's post-Kelo reform successes:




[Insert sound of crickets chirping, grass growing, and paint drying].




The above is a comprehensive summary of federal post-Kelo efforts because the feds have accomplished nothing of any no. On the first anniversary of Kelo, President Bush issued a completely ineffective executive order that seems to have been meant just for show. In 2005, Congress passed the Bond amendment, an almost equally futile gesture that has since expired (described on pp. 41-42 of this article). And that's it.

Such federal neglect of the issue is unfortunate. As I explained in a recent National Review article, there is actually a great deal that the president and Congress can do to curb harmful blight and economic development takings. Many blight and economic development condemnations are at least partially funded with federal grants; and some might not have been undertaken without them. Even if you believe that respect for state autonomy should prevent Congress from simply banning such takings, the federal government surely has the power to deny federal to funds to localities that use them.

The Property Rights Protection Act (discussed on pp. 38-41 of my forthcoming article on post-Kelo reform), which would have taken a step in that direction, passed the House of Representatives overwhelmingly in 2005. It would have denied federal "economic development" funds to local governments that undertake economic development takings similar to that upheld in Kelo. But the PRPA was bottled up in the Senate under the Republican Congress. Efforts to resuscitate it in the new Democratic Congress have so far been even less successful. Recently, a new and somewhat better version of the PRPA has been introduced by Republican Representative John Sullivan. Whether Sullivan's effort meets with greater success than previous attempts remains to be seen. As a general rule, it's rare for any important measure to pass the House if it is introduced by a member of the minority party.

Kamisar, LaFave, Israel, King & Kerr, Modern Criminal Procedure: I'm happy to announce the publication of the 12th Edition of the criminal procedure casebook that Yale Kamisar first assembled in 1965: Modern Criminal Procedure, now with LaFave, Israel, King, & (gulp) Kerr. The Table of Contents is available here.

  My contribution to the 12th Edition was a complete rewrite of Chapters 7 and 8. Back in the Eleventh Edition, Chapter 7 was entitled "Wiretapping, Electronic Eavesdropping, the Use of Secret Agents to Obtain Incriminating Statements, and the Fourth Amendment." It broadly covered surveillance law. Chapter 8 was titled "Police Encouragement and the Defense of Entrapment," and it covered entrapment law.

  In the new Twelfth Edition, Chapter 7 is titled "Undercover Investigations." The chapter considers the legal issues raised by undercover cases, specifically use of secret agents under the Fourth Amendment and the entrapment defense. (As you might guess from my recent draft The Case for the Third Party Doctrine, I see the entrapment defense as a response to the secret agent cases; therefore I think it makes the most sense to treat the two together under the general heading of undercover operations.)

  The new Chapter 8 is called "Network Surveillance," and it covers all the legal issues raised by collecting evidence from communications networks such as the postal service, the telephone network, and the Internet. It starts with the Fourth Amendment issues raised by such surveillance, and then covers the statutory surveillance issues (Title III, the Stored Communications Act, and the Pen Register statute).

  As with past editions, the massive tome that is "Modern Criminal Procedure" will be divided into two parts: the investigative part, "Basic Criminal Procedure," and the adjudicative part, "Advanced Criminal Procedure." Both should be out in just a few weeks. And finally, let me point out the obvious: It's a tremendous honor to be associated with such wonderful co-authors and such an influential work. Cf. Rothgery v. Gillespie County, slip op. at 8.
Placing Oil CEOs on Trial:

Noted climatologist James Hansen, one of the foremost proponents of apocalyptic global warming, and is calling for more than greenhouse gas emission reductions.

Special interests have blocked transition to our renewable energy future. Instead of moving heavily into renewable energies, fossil companies choose to spread doubt about global warming, as tobacco companies discredited the smoking-cancer link. Methods are sophisticated, including disguised funding to shape school textbook discussions.

CEOs of fossil energy companies know what they are doing and are aware of long-term consequences of continued business as usual. In my opinion, these CEOs should be tried for high crimes against humanity and nature. If their campaigns continue and "succeed" in confusing the public, I anticipate testifying against relevant CEOs in future public trials.

Property Rights Three Years After Kelo, Part III - A New Cross-Ideological Coalition for Property Rights?

One of the most important aspects of the backlash against Kelo was the extent to which the decision was condemned by many on the political left. Conservatives and libertarians have traditionally defended property rights. By contrast, liberals have tended to view them as a subterfuge by which the rich evade government regulations that will supposedly benefit the poor. Yet many liberals and leftists were extremely upset by Kelo. Among those who harshly criticized the decision and "economic development" takings were Ralph Nader, NAACP, the Southern Christian Leadership Conference, Howard Dean, Bill Clinton, and a host of others.. Among the general public, surveys showed that liberals and Democrats opposed Kelo just as overwhelmingly as conservatives and Democrats (see pp. 6-10 of this article). Significantly, many of the liberal critics of Kelo, including the NAACP, AARP and SCLC in their amicus brief, called for a categorical ban on economic development takings, not merely a tightening of standards for such takings. Liberal opposition to economic development takings stems in part from the realization that blight and economic development takings often victimize the poor and ethnic minorities for the benefit of political powerful interest groups. Kelo therefore created an important opportunity to forge a broad-based coalition in favor of stronger protection for property rights against takings. For the first time since the New Deal, many on the left were aligned with liberatarians on conservatives on a key property rights issue.

To some extent, that coalition has borne fruit in the form of post-Kelo legislative reform in the states (discussed in my last post in this series). State supreme courts in generally liberal states such as Illinois, Michigan, and Washington have invalidated economic development takings under their state constitutions and shown far greater willingness to protect constitutional property rights than their fellow liberals on the US Supreme Court (all four of whom voted with the Kelo majority).

However, I fear that not enough has been done to exploit coalition opportunity presented by Kelo. On the liberal side, those activists and organizations who criticized Kelo have, for the most part, failed to make protection of property rights for the poor a routine element of their agenda. Few of them have pursued other property rights litigation or engaged in lobbying on post-Kelo reform issues. They have criticized Kelo and occasionally filed amicus briefs; but there needs to be more action to match the admirable talk. On the conservative-libertarian side, not enough has been done to reach out to potential liberal allies. Occasionally, as in the case of California Propositions 90 and 98, conservative property rights activists have actively alienated liberals by bundling anti-Kelo measures protections with other agenda items that potential liberal allies were bound to oppose. Both sides of the potential anti-Kelo coalition need to do more to make it happen.

Napoleon once said that he preferred to have allies for enemies, because an alliance has greater coordination problems than a unitary adversary. His point probably applies to political coalitions as much as military ones. Nonetheless, the benefits of building a broad anti-Kelo coalition are worth the cost. American history shows that constitutional limits on government power are rarely secure unless they have substantial support on both sides of the political spectrum. Judicial enforcement of free speech rights, for example, did not become effective until it was accepted by many conservatives, as well as the liberals who initially championed it. For all its flaws, the unwieldy Sixth Coalition eventually defeated Napoleon and packed him off to St. Helena. If we play our cards right, perhaps Kelo will suffer a similar fate.

Onion News Network on Baze v. Rees: The Supreme Court's April death penalty decision in Baze v. Rees is old news by now, but I believe this coverage from the Onion News Network is relatively new. (Warning: As you might guess with a humorous video about the death penalty, this may be a bit off color to some viewers. If you don't like the Onion, you may not like this.)

Thanks to commenter "E" for the link.
5-4 Split Watch:

Three more decisions were handed down today. One, Sprint Communications Co. v. APCC, was 5-4. In that case, which concerned standing for assignees, Justice Kennedy joined Justice Breyer's majority opinion along with the other three liberal justices.

The other two cases were decided 8-1 and 6-3. Of note, in the latter case, Greenlaw v. United States, Justice Alito dissented joined by noted conservatives Justice Stevens and Justice Breyer (in part).

UPDATE: As a commenter notes, the justices in Greenlaw actually split 7-2. Although Justice Breyer joined three-fourths of Justice Alito's dissenting opinion, he concurred in the judgment of the Court.

The BBC's Take on Jewish Refugees from Arab Countries:

The BBC reports on a conference of Jewish organizations trying to call attention to the injustices perpetrated on Jews from Arab countries after the creation of Israel. [Note: My father-in-law, late mother-in-law, and their families fled Iraq with the clothes on their back and little else in 1950. My wife's great-grandfather was murdered by an Arab mob in Baghdad in the late 1930s.]

While the BBC does briefly summarize the focus of the conference, the report discusses in detail the views of only one individual. Not an organizer or attendee of the conference, not an expert (such as Bernard Lewis) on the history of Jews in Arab countries, but "the BBC's Arab affairs analyst Magdi Abdelhadi."

He states, among other things,

the subject is highly controversial as the numbers of Jews who left, and the conditions under which they left, are disputed. He says one undisputed fact is that Jews were part of Arab societies for centuries, where they were fully integrated in their societies, until Israel was established.

In fact, there is no controversy over the numbers. Moreover, not only is it not "undisputed" that Jews were "fully integrated" in Arab societies "for centuries," it's an absurd statement. At best, one can say that in the more cosmoplitan cities of the Arab world such as Baghdad and Cairo, Jews became increasingly integrated in Arab societies starting in the late 19th century, often under the protection of European colonial governments.

(As a sidenote, Jews settled in Iraq, Egypt, and other parts of the Arab world long before the Muslim conquest and before the inhabitants would have been considered "Arabs." A more accurate summary is that Jews lived in various countries in the Middle East for over 2,000 years, their status their had its ups and downs, including during Arab rule, but was never secure. Jews fled in the latter half of the twentieth century because a combination of anti-Israel sentiment, intolerant Arab nationalism, growing Islamism, and the use of anti-Semitism by governing elites to distract the masses from their incompetent, dictatorial rule, made Jewish life increasingly precarious, while the existence of Israel and liberal French immigration for its former colonies made building a life elsewhere possible.)

A Prize for McCain:

Senator McCain gave another speech on energy policy today in Fresno. As I discuss here, it was more promising than what he said last week. In particular, I like that he is calling for a government-sponsored prize for innovation (something I've discussed before here).

Property Rights Three Years After Kelo, Part II - The State of the States:

Since Kelo was decided exactly three years ago, a remarkable 42 states have enacted new eminent domain reform laws - a more extensive legislative response than that generated by any other Supreme Court decision. By my count, at least five state supreme courts have issued decisions limiting takings under their state constitutions, including two (Ohio and Oklahoma) which held that Kelo-style "economic development" condemnations are forbidden under their state public use clauses.

How much real progress has been made in protecting property rights in the states? Not nearly as much as many people hoped, but a lot more than probably would have occurred without Kelo.

I. State Legislation.

I have discussed state post-Kelo legislation in great detail in this article. The article covers all state post-Kelo reforms, except for California's recently passed Proposition 99, which I criticized here, and in several entries in this series of posts.

To briefly summarize my findings, 35 state legislatures have passed eminent domain reform laws since Kelo, and eleven states (including California's Prop 99) have enacted such reforms by referendum (a few states have done both). However, 21 of the 35 laws enacted by state legislatures only pretend to limit takings and don't impose any real restrictions Kelo-like condemnations. The same is true of four of the 11 reforms enacted by referendum. The most common subterfuge is to ban takings for "economic development" but allow them to continue under another name as "blight" condemnations, utilizing a definition of "blight" broad enough to cover virtually any property.

Moreover, many of the states that have enacted effective reforms are ones that rarely or never engaged in economic development takings anyway. For example, the state of South Dakota has enacted one of the strongest post-Kelo laws in the entire country. But in the years preceding Kelo, South Dakota did not initiate even one blight or "economic development" taking. By contrast, many of the states with the worst records on property rights have enacted ineffective legislation or none at all. These states include California, New York, New Jersey, and Texas. For reasons I advance in the article, the most compelling explanation for this pattern is that most voters lack the knowledge necessary to tell the difference between effective reforms and purely symbolic ones. Survey evidence shows that no more than 13% of Americans both know whether their state has enacted eminent domain reforms since Kelo, and know whether those reforms are likely to be effective or not.

That said, a number of states with extensive records of eminent domain abuse have enacted strong reform laws, with Florida (which adopted the strongest reform in the entire country) and Indiana being the best examples. Moreover, as I explain in the paper, reforms enacted by citizen-initiated referendum initiatives have generally proven far stronger than those enacted by state legislatures (though Proposition 99 - drafted by pro-condemnation interest groups, is an important exception). Thus, the Kelo backlash has led to some important progress in state eminent domain legislation.

It is highly unlikely that any of these states would have moved to curtail eminent domain were it not for Kelo. In the decade prior to Kelo, only one state (Utah) had passed a reform law forbidding economic development takings.

II. Developments in State Courts.

Since Kelo, at least five state supreme courts have banned or limited economic development takings under their state constitutions. Two of these, Ohio and Oklahoma, held that Kelo-like condemnations are categorically forbidden under their states' constitutions. The Ohio case, City of Norwood v. Horney, is particularly important because it addresses blight takings as well as pure economic development condemnations. Significantly, no state supreme court has gone the other way in recent years, with the exception of the Connecticut Supreme Court's narrow 4-3 ruling in Kelo itself.

It is difficult to say whether these state court rulings are a reaction against Kelo or not. Unlike in the case of state legislative developments, recent state supreme court decisions forbidding or restricting economic development takings are a continuation of a preexisting trend. In then ten years prior to Kelo, the supreme courts of Michigan, Illinois, Montana, and South Carolina all held that economic development takings violate their state constitutions, with Kansas being the only state supreme court that ruled the other way during that time. The 2004 Michigan case (which I analyzed in this article), was especially significant because it overruled that court's notorious 1981 Poletown decision, which had upheld the forcible displacement of some 4000 people in Detroit so that General Motors could acquire land for a new factory.

All told, eleven state supreme courts now forbid economic development takings under their state constitutions, and nine of them reached this conclusion before Kelo. However, it is significant that the Supreme Court's ruling in Kelo did not influence state supreme courts to interpret their state constitutions in the same way. Back in the 1950s, the Supreme Court's decision in Berman v. Parker, which held that "blight" condemnations are permissible under the Fifth Amendment's Public Use Clause, helped convince state courts to rule the same way under their state constitutions (as nearly all did). As a result, hundreds of thousands of people were forcibly displaced by "urban renewal" and blight takings during the 1950s and 60s (a history summarized on pp. 268-71 here). By contrast, the Ohio and Oklahoma supreme courts have both repudiated Kelo as a potential guide in interpreting their state constitutions and no other state supreme court has embraced it.

Justice Alito and Kelo:

Justice Samuel Alito was not on the Supreme Court when it handed down Kelo in 2005. However, today he revealed that he may not be a big fan of that decision. As Lyle Denniston of ScotusBlog points out, Alito has taken the unusual step of revealing that he voted against the Court's decision to deny a writ of certiorari for Goldstein v. Pataki, the controversial Second Circuit takings case that I blogged about here. As I indicated in my earlier discussion of Goldstein, the taking challenged in that case was clearly permissible under Kelo. Thus, the only likely reason why Alito (or any Supreme Court justice) might have wanted to consider Goldstein would be to overrule Kelo, or at least narrow its scope. Alito's vote to grant cert probably indicates that he at the very least has serious reservations about Kelo.

Moreover, it is extremely rare for the justices to reveal their votes on cert petitions. Alito's decision to break with standard practice in this case suggests that he may have wanted to send a signal about his attitude towards Kelo for the benefit of future litigants.

Whether Chief Justice John Roberts (the other justice appointed after Kelo was decided) shares Alito's views on these issues remains to be seen.

HT: Ilya Shapiro of the Cato Institute, who brought Alito's vote on Goldstein to my attention.

UPDATE: Ilya Shapiro (who, BTW, is not related to me, despite having the same first name), has written a post on this issue here.

Supremes to Take on Navy Sonar:

The Supreme Court has agreed to hear a potentially important case concerning the relationship between national security and environmental protection. In Winter v. NRDC the Navy sought review of a court injunction against the use of high frequency sonar facilities during naval training exercises due to their potential impact on whales. Specifically, the district court found that the Navy had failed to comply with the requirements of the National Environmental Policy Act (NEPA). According to the federal government, the Council on Environmental Quality found "emergency circumstances" that justified the Navy's failure to fulfill NEPA's requirements, but the U.S. Court of Appeals for the Ninth Circuit disagreed.

The LA Times covers the story here. The opinion below is here.

Related Posts (on one page):

  1. Colburn on Navy Sonar Case:
  2. Supremes to Take on Navy Sonar:
Two Sixth Circit Habeas Cases Go Up:

Gary Cone's habeas appeals have ping ponged throughout the federal court system for years, and they are not over yet. Today the Supreme Court granted certiorari in Cone v. Bell. At issue is whether Cone procedurally defaulted on some of his potential claims. I covered the last opinion of the U.S. Court of Appeals for the Sixth Circuit here, and the opinion is here.

Cone is not the only habeas case from the Sixth Circuit to go up. The Supreme Court also granted certiorari in Harbison v. Bell. As I understand the issue in this case, it concerns whether Harbison's federally-funded habeas counsel could seek clemency on Harbison's behalf, and whether a certificate of appealability is necessary to challenge a decision to the contrary.

Related Posts (on one page):

  1. NYT on Cone and Harbison Grants:
  2. Two Sixth Circit Habeas Cases Go Up:
Fighting the Internet Poker Ban:

For those of you who enjoy playing poker online, or who just think it is outrageous for the government to tell you that you may not and attempt to enlist the entire financial community to act as the poker police, my colleague, Professor Bainbridge, describes a way you can take action today:

The Poker Players Association has an urgent action item:

Tuesday, the House Financial Services Committee will review a bill, H.R. 5767, that would block the implementation of UIGEA regulations. In order to get this bill out of Committee on onto the House Floor, we need your help. We need you to contact the committee and express your support for H.R. 5767, as well as the King amendment which will refine the bill language. PPA strongly supports H.R. 5767 and the King amendment, but this important bill and amendment won’t pass without your help!

Call or Fax the House Financial Services Committee* Democrats’ Committee Office:* Ph: (202) 225-4247 - FAX: (202) 225-6952 Republicans’ Committee Office:* Ph: (202) 225-7502 - FAX: (202) 226-4301

Click Here To Contact Via E-mail

The UIGEA regulations will demand that banks block “unlawful internet gambling” but there is no definition of this vague term. Banks will be forced to block millions of transactions that are not in fact illegal. As a result, you may not be able to play poker or any other game of skill online. HR 5767 will prevent this regulatory nightmare. The King amendment will force the regulatory agencies to define “unlawful internet gambling” through a formal rulemaking, with due process and opportunity for input from affected parties.

Groups that oppose your right to play poker are working to defeat this important bill. Don’t count on someone else to take action for you – call today, there’s no time to waste!

HR 5767 is sponsored by Barney Frank and Ron Paul:

House Financial Services Committee Chairman Barney Frank (D-MA) and senior Financial Services Committee member Ron Paul (R-TX) have introduced legislation to prohibit the federal government from issuing regulations called for in the called for in the Unlawful Internet Gambling Enforcement Act of 2006. The legislation, H.R. 5767, will forbid the Secretary of the Treasury and the Board of Governors of the Federal Reserve System from proposing, prescribing, or implementing any regulation that requires the financial services industry to identify and block internet gambling transactions.

“These regulations are impossible to implement without placing a significant burden on the payments system and financial institutions, and while I do disagree with the underlying objective of the Act, I believe that even those who agree with it ought to be concerned about the regulations’ impact,” said Rep. Frank.

“The ban on Internet gambling infringes upon two freedoms that are important to many Americans: the ability to do with their money as they see fit, and the freedom from government interference with the Internet. The regulations and underlying bill also force financial institutions to act as law enforcement officers. This is another pernicious trend that has accelerated in the aftermath of the Patriot Act, the deputization of private businesses to perform intrusive enforcement and surveillance functions that the federal government is unwilling to perform on its own,” said Rep. Paul.

Losers Can Be Winners:

The Louisville Courier-Journal reports:

[University of Louisville] sued Duke for $450,000 — or a series with another Atlantic Coast Conference opponent — after the Blue Devils backed out of a four-game football contract with three dates remaining.

The contract called for a penalty of $150,000 per game if a date with a “team of similar stature” could not be arranged.

Duke’s lawyers argued the Blue Devils, which have a record of 6-45 over the past five seasons, were so bad that any team would be a suitable replacement.

[Franklin, Ky., Circuit Court] Judge [Phillip J.] Shepherd agreed in his summary:

“At oral argument, Duke (with a candor perhaps more attributable to good legal strategy than to institutional modesty) persuasively asserted that this is a threshold that could not be any lower. Duke’s argument on this point cannot be reasonably disputed by Louisville.”

Thanks to Paul Milligan and Above the Law for the pointer.

The Meaning of Rothgery: I'm trying to understand this morning's important Sixth Amendment decision in Rothgery v. Gillespie County, and in particular the key practical question raised by the case: When exactly does the Sixth Amendment attach, and what does that mean? The opinion is clear that it only addresses the first question: It goes out of its way to say that the opinion does not answer what it means for the Sixth Amendment right to attach when there is no hearing pending (see slip op at 20). But I'm having a little trouble understanding exactly when the right to counsel now attaches.

  The Court states its holding in Rothgery as follows:
[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.
  I am not a Sixth Amendment expert, so I have a few questions for those who are: Does this mean that there must be counsel before a detention hearing occurs, or perhaps afterwards? If it means there must be counsel before the detention hearing, how is Rothgery consistent with the Sixth Amendment discussion in Gerstein v. Pugh, where the Court indicated that "pretrial custody may affect to some extent the defendant's ability to assist in preparation of his defense," but that a probable cause hearing did not trigger a critical stage requiring a constitutional right to counsel? Is the idea that there is an abstract right at that stage but that the lawyer doesn't actually need to be present for the hearing? And if a person is arrested on a warrant, does the crime named in the warrant count as "the charge against him"? Are all initial appearances now enough to trigger the Sixth Amendment right to counsel, or is the gist of Rothgery that there must be counsel appointed before any detention after the initial 48 hour window?
Wild Speculation:

This phrase from Justice Scalia's dissent in Indiana v. Edwards is a foreshadowing of a phrase in one of the pro-individual-rights opinions in D.C. v. Heller: "As I have explained, I would not adopt an approach to the right of self-representation that we have squarely rejected for other rights -- allowing courts to disregard the right when doing so serves the purposes for which the right was intended." We'll see in a few days whether I'm right.

No Supreme Court Second Amendment Opinion (in D.C. v. Heller) Today:

Looks like it will be coming down Wednesday or Thursday.

For whatever it's worth, SCOTUSblog's Tom Goldstein reports that "The only opinion remaining from the March sitting is Heller. The only Justice without a majority opinion from that sitting is Justice Scalia." Since usually each Justice is assigned at least one majority opinion per sitting, that's something of a sign that Justice Scalia is likely to write the majority opinion in Heller. But it's of course far from certain, for a variety of reasons.

For more on how this guessing game is played, see this SCOTUSblog post from last week. Note that it says neither Justice Souter nor Justice Scalia had majority opinions from the March sitting, but Justice Souter wrote one that came down today, so that's why Tom Goldstein says only Justice Scalia is left.

Is the Proposed California Same-Sex Marriage Ban an Unconstitutional "Revision" by Initiative? reports:

A marriage equality group asked the California Supreme Court in San Francisco today to remove from the November state ballot an initiative that would ban same-sex marriage.

Equality California argued in a lawsuit filed directly in the high court that the measure would be a state constitutional revision, not an amendment, and would therefore require more elaborate procedures for passage.

A few quick thoughts (I'm on a trip and can't get into as many details as I'd normally like):

1. Under the California Constitution, the initiative can be used for "amendments" but not "revisions":

[Art. XVIII, § 1.] The Legislature ..., two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ....

[§ 2]. The Legislature ..., two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution....

[§ 3]. The electors may amend the Constitution by initiative.

[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.

Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. And Raven v. Deukmejian, 52 Cal. 3d 336 (1990), confirmed this.

2. The proposal to allow only same-sex marriages is likely to be found to be only an amendment, not a revision. Raven struck down an initiative that would bar the state courts from interpreting the state constitution in a more defendant-friendly way than the federal constitution is interpreted, as to a wide range of constitutional provisions. (Generally speaking, state prosecutions must comply with both the state constitution's bill of rights and the federal bill of rights, and while states often interpret state constitutional rights the same way as the U.S. Supreme Court has interpreted the analogous federal right, they also have the power to interpret the state rights more broadly.)

The court stressed that the proposal made "such far reaching changes in the nature of our basic governmental plan as to amount to a revision," because it "involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution," as opposed to only dealing with one specific right:

In effect, new article I, section 24, would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect. As an historical matter, article I and its Declaration of Rights was viewed as the only available protection for our citizens charged with crimes, because the federal Constitution and its Bill of Rights was initially deemed to apply only to the conduct of the federal government....

Thus, Proposition 115 not only unduly restricts judicial power, but it does so in a way which severely limits the independent force and effect of the California Constitution....

It is true, as the Attorney General observes, that in two earlier cases we rejected revision challenges to initiative measures which included somewhat similar restrictions on judicial power. In In re Lance W., 37 Cal.3d 873, 891 (1985), we upheld a provision limiting the state exclusionary remedy for search and seizure violations to the boundaries fixed by the Fourth Amendment to the federal Constitution. In People v. Frierson, 25 Cal.3d 142, 184-187 (1979), we upheld a provision which in essence required California courts in capital cases to apply the state cruel or unusual punishment clause consistently with the federal Constitution.

Both Lance W. and Frierson concluded that no constitutional revision was involved because the isolated provisions at issue therein achieved no far reaching, fundamental changes in our governmental plan. But neither case involved a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution....

3. And the two cases that I've found in other states that dealt with the same question have likewise concluded that an opposite-sex-only marriage initiative was an amendment, not a revision: Bess v. Ulmer (Alaska Supreme Court, 1999), and Martinez v. Kulongoski (Oregon Court of Appeals, 2008). Bess, in particular, expressly applied California precedents (though with a minor change that doesn't seem relevant here), and concluded that the opposite-sex-only marriage initiative was an amendment, not a revision: "Few sections of the Constitution are directly affected, and nothing in the proposal will 'necessarily or inevitably alter the basic governmental framework' of the Constitution."

4. That the proposed amendment would cut back on the scope of a state constitutional right shouldn't affect this analysis, or otherwise make the amendment unconstitutional. As the two cases cited and distinguished in the Raven excerpt quoted above show, the amendment process may be used to cut back on the scope of a state constitutional right as well as to add to the scope of such a right. (State constitutional amendments of course can't be used to cut back on the scope of a federal constitutional right, but the California Supreme Court same-sex marriage decision rested solely on the state constitution.) One point of the state constitutional amendment process is to make sure that the scope of state constitutional rights is decided by the voters in the state, not just by the seven voters on the state supreme court, especially since those seven voters themselves derive their constitutional authority from a document enacted by a majority vote of the states' voters.

5. All this goes to the merits of the constitutional question, but what about the timing? May this "impermissible revision" challenge be raised before the election, or must it wait until the voters approve the amendment (if they do indeed approve it)? It seems like the preelection challenge would be allowed here. As the California Supreme Court has put it (emphasis added), "'[I]t is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.'... [But] '... this general rule applies primarily when a challenge rests upon the alleged unconstitutionality of the substance of the proposed initiative, and ... the rule does not preclude preelection review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters because the measure is not legislative in character or because it amounts to a constitutional revision rather than an amendment.'"

6. There have been some other constitutional arguments raised about the constitutionality of the proposed amendment; I hope to speak to them later, but likely not this week, because my opportunities for blogging will be limited (and chiefly focused on the Second Amendment case).

Property Rights Three Years after Kelo I - Why Kelo Was Better than Previous Supreme Court Public Use Decisions:

Three years ago today, the Supreme Court decided Kelo v. City of New London, the case in which it held that the Public Use Clause of the Fifth Amendment does not forbid government to transfer property from one private owner to another in order to promote "economic development." The Court ruled that "economic development" by private parties is a "public use" of the condemned property and therefore such takings are permissible.

Kelo stimulated a broader political backlash than any other Supreme Court ruling in American history. As I documented in this article, the decision was opposed by at least 80% of the general public and was condemned by politicians and activists from across the political spectrum. It also led 42 states and the federal government to enact new laws purporting to restrict eminent domain power - a more extensive legislative response than that generated by any other Supreme Court decision.

The third anniversary of Kelo is an excellent opportunity to assess the state of property rights today. On the whole, I think there has been considerable progress over the last three years, even if not as much as some hoped. The cause of property rights is ultimately better off with the Kelo decision than it would have been without it. In this post, I explain why Kelo, severely flawed as it is, was an improvement over what came before. In followup posts, I will briefly summarize progress in protecting property rights at the state level, and consider the new political alliances for property rights that Kelo made possible.

As I explained in this 2007 Supreme Court Economic Review article, Kelo leaves property owners almost completely unprotected against takings. As such, it was definitely a defeat for property owners. Moreover, the Court also misapplied early twentieth century "substantive due process" cases to falsely claim that there was a 100 years of precedent supporting its conclusion that virtually any taking is permissible under the Public Use Clause of the Fifth Amendment (see pp. 240-44 of the SCER article).

Nonetheless, Kelo was a significant improvement over Hawaii Housing Authority v. Midkiff (1984) and Berman v. Parker(1954), the Court's two previous important Public Use decisions. These two cases had held that any governmental purpose could be a "public use" justifying condemnation so long as it was "rationally related to a conceivable public purpose." By contrast, the Kelo majority opinion imposed a slightly stricter (though still extremely permissive) test on economic development takings and Justice Kennedy's concurring opinion held out the prospect that some takings could be invalidated if there was too much "favoritism" towards private parties (these aspects of Kelo are analyzed in great detail on pp. 227-240 of my SCER article).

Far more important than the majority's insignificant new protections for property owners is the sheer fact that Kelo was a close 5-4 decision in which the dissenters argued that "economic development" takings that transfer property to private parties are categorically banned by the Fifth Amendment. This marks a sea change from the "anything goes" approach unanimously adopted in Midkiff and Berman. Ironically, Justice Sandra Day O'Connor - the author of the Court's ultra-permissive opinion in Midkiff - also wrote the principal dissent in Kelo. In her Kelo dissent, O'Connor event went so far as to repudiate what she somewhat misleadingly called the "errant language" she herself had written back in 1984.

Before Kelo, most experts believed that the Public Use Clause was essentially dead as a meaningful restriction on eminent domain. Since 2005, the issue is once again very much alive. Kelo probably won't be overturned in the near future. But the Court's permissive approach to public use is no longer cast in stone, as most experts believed it was before Kelo.

UPDATE: I have corrected the typo in which I accidentally indicated that Midkiff was decided in 1954 rather than 1984.


Sunday, June 22, 2008

Big Week Ahead: It's very likely that this coming week will see the release of all of the Supreme Court's pending merits cases for the October Term 2007. Some will come down tomorrow morning, and probably the rest later in the week. If you absolutely need to know what is happening up the minute, you'll want to tune into SCOTUSblog starting about 10 am tomorrow morning. And be sure to check in here for commentary throughout the day when the biggies are released.
Soak the Rich!:

Obama's tax plan, according to this article, would raise the marginal rate on the self-employed who earn more than 250K to 53%, including income and social security taxes (taxes would be lower for employees, but their wages will be reduced because their employers will have to pay half of the social security tax increase). The marginal state and local rate for residents of New York City is around 11.5%, which will likely not be deductible for federal purposes because of the AMT. I'm not sure exactly how the AMT fits into this (does anyone really understand the AMT?), but figure the top marginal tax rates for residents of NYC, DC, California, and similar high tax areas will be 60% or higher. Yikes!

I expect that attorneys, physicians, and other high earners are going to be negotiating for less income and more non-taxable compensation (reimbursement for continuing education vacation boondoggles, more money to pensions, and so forth), rather than submit to having most of their income siphoned off by the government.

I remember reading a few years back that the majority of Americans don't think that anyone should pay more than 1/3 of his income in taxes. A campaign issue for John McCain?

The New York Times's Demographic:

I often get a kick out of the subtle signals the Times sends that its target demographic is a Manhattanite with a family income of at least 500K a year. For example, in an article on green homes today: "The checklist for certification can be more daunting than a private-school application." Note the assumption that (a) readers are familiar with private school applications; and (b) that the private schools that people send their kids to are extremely competitive and hard to get into, which I suspect account for a very small fraction of private schools nationwide and even New York City generally, but a large fraction of schools to which upper-income Manhattanites send their children.

Sunday Song Lyric: "Moonglow" by Eddie DeLange (music by Will Hudson and Irving Mills) is a classic recorded by Tony Bennett, Billie Holiday, and Rod Stewart, and k.d. lang, among many others. Here's how the lyrics begin
It must have been moonglow, way up in the blue
It must have been moonglow that led me straight to you
I still hear you sayin', "Dear one, hold me fast"
And I keep on prayin', "Oh Lord, please let this last"

We seemed to float right through the air
Heavenly songs seemed to come from everywhere

And now when there's moonglow, way up in the blue
I'll always remember, that moonglow gave me you
Here is an instrumental performance by the Benny Goodman Quartet.