Obama gets his first Supreme Court pick

Justice David Souter is retiring at the end of this term in June.

This likely doesn't change much. He's been one of the reliably liberal justices, and Obama will likely choose another liberal. On the other hand, justices often end up surprising even the presidents who chose them.

The Dems now have (or they should by that point) a filibuster proof majority if the votes break down along party lines, so he'll probably get whoever he wants unless there's something seriously wrong with whoever he nominates (like they haven't paid their taxes, or som... Oh. Right.).

Souter joined both dissenting opinions in Heller v. DC, and I'd be willing to bet that one of Obama's "acid tests" for any nominee will be about guns, so from a gun rights perspective there's little hope for a positive change,* and we're probably looking at the same thing for most other key "conservative" issues, too. By the same token, there's not much risk for a negative change, either. Barring any surprises, this does not seem to be a game-changing vacancy.


* I did not do that on purpose. On the other hand, I left it there when I noticed it. [bugs bunny voice]Ain't I a stinker?[/bugs bunny voice]

On the whole Plaxico Burress mess.

Xavier has a post up with his take on Plaxico Burress. While I agree that Plaxico is a complete idiot, and a thug, I have to disagree with the overall thrust of the post, which seems to be that we should let him hang (figuratively) for what he did, and that he should not be allowed to use the Heller decision to challenge the law he's being charged under. I urge you to read his post, and my comment, which I'm also posting here because it sums up my position fairly well.

I'm afraid I have to disagree with you on this one, Xavier. If you believe the law he broke is unconstitutional, then his motivation, knowledge, intent, recklessness, stupidity, and arrogance should all be irrelevant. He has the same right to challenge the law on Constitutional grounds as anyone else. His money simply gives him a better ability to do so, and his fame is what brought it to our attention. Right or not, that is the way it is.

Heller does apply, not because it applies to him, or to the situation, but because it applies to the law that he is being charged under. If New York's law equates to a de facto ban on handguns, it is unconstitutional under Heller, and a persons reasons and intent are irrelevant. Even if he was carrying it so that he could go kill someone later, he still should be able to challenge the law in question. An unconstitutional law should be challenged at every possible opportunity.

Is Plaxico Burress an ideal person to be doing this? No. Is he one of us? Heck no. Should he be charged with other crimes? Yes, he should be charged with criminal negligence, reckless endangerment, making false statements to police, and (if it's in New York's laws) carrying a firearm while intoxicated. He's an idiot, and it's only blind luck that no on else was injured or killed.

You said "If he decided to go, he did not need to carry a gun." Since when is need supposed to be a requirement to exercise one's Second Amendment rights? Since when is the lack of ability to hire bodyguards, or the lack of "other options" supposed to be a requirement to exercise one's Second Amendment rights?

It is not about "bend[ing] the law unjust when the man who caught the winning touchdown in the 2008 Super Bowl violates it" or for getting him "preferential treatment in a court of law." It's about striking down an unconstitutional law. To paraphrase your own conclusion, "The Constitution is simply the Constitution, and it applies to New York City."

*Please note that the "stupidity" label for this post is for Plaxico Burress's stupidity, not Xavier. I have nothing but respect for Xavier, and I don't think he's stupid, or even being stupid in his post.

Heller, Round 2!

Really, who didn't see this coming?

In a complaint filed Monday in U.S. District Court, Dick Heller and two other plaintiffs allege that the city's new gun regulations still violate rights guaranteed under the Constitution.

h/t to David Codrea at The War on Guns.

A Missed Point About Heller

I never got around to posting an analysis of DC v. Heller. There have been so many others on the web who have, and have done a better job than I probably could, that I just didn't do it. (And I succumbed to a bit of Heller "burnout" reading so many of them.) But there's one point I've noticed missing from most of those otherwise excellent blog posts. I've mentioned it in a couple of comments, but haven't really seen it anywhere, so here it is:

Heller will eventually lead to a ruling that a state may prohibit either open carry or concealed carry, but not both.

There are two key passages:

As the quotations earlier in this opinion demonstrate,the 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.

and:

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.

DC v. Heller, 554 U. S. ____ (2008), p. 56-57, (PDF p. 59-60)

Heller dealt only with carrying firearms within one's home. However, by so inextricably joining the 2nd Amendment to the right to self-defense, the Court has left the door wide open to a future ruling that some form of carry (open or concealed) must be allowed outside the home as well. This follows from the simple fact that a person's right to self defense does not end when he leaves his home. There is ample case law supporting an individual's right to self defense, and most of it deals with situations where the individual in question is not at his home or place of business.

From this it is simple. If I have the right to self defense outside my home, and that right is "central to the Second Amendment right," then a law restricting my Second Amendment right only to my home cannot be constitutional. I have that right in any place that I have the right to self defense.

DC v. Heller - First Impressions

Not done reading it yet, but I am done for today. I prefer to hold my comments until I've read the whole thing, and this one is 60+ pages for the majority opinion, and 157 pages total!

Preliminary opinion, based on the syllabus, what I've read so far, and what I've seen on other blogs? More good than bad: it established the 2nd Amendment as protecting an individual right, which is very important, and gives lower courts a good starting point. On the other hand, it does not rule out licensing and/or registration. On the gripping hand, for jurisdictions that do require licensing and/or registration, it seems to say that only shall-issue would be constitutional.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

District of Columbia, et al. v. Heller, Slip Op., p. 64 ( p. 67 of the PDF) (emphasis added)

Additionally, while the majority does not specifically address the scrutiny issue, footnote 27 is promising because it outright rejects rational basis scrutiny.

If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Heller, Slip Op., Footnote 27, p. 56, 57 (p. 59, 60 of the PDF)

While footnotes are considered dicta, footnotes in a Supreme Court majority opinion are often considered more binding than circuit court decisions, and are usually given more weight by lower courts than the dissenting opinion in the same case.

Well, that's more than I planned on getting into tonight. More later this weekend!

Heller Affirmed!

The Supreme Court affirmed the D.C. Circuit Court's decision in Heller.

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

DC v. Heller, Syllabus, Available here.

More after work.

SCOTUS Watch

No Heller today. Should be tomorrow.

They also ruled the death penalty unconstitutional for child-rape. My initial opinion is strongly opposed to that ruling, but I haven't read it for details yet. It appears to have been a 5-4 vote split right across conservative/liberal lines. I'm disappointed, but not surprised. I'll probably do a more detailed post about this one later.