McDonald v. Chicago - Oral arguments today

Update: Analysis: 2d Amendment extension likely (from SCOTUSBlog)

This is troubling, though:

The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge. [emphasis mine]

Why is that relevant? Or, to echo a point Mr. Gura made at one time, the SCOTUS should be concerning itself with what the Constitution means, not whether it’s a good idea to follow it.

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Just a reminder, oral arguments in McDonald v. Chicago are at 10:00 today. Apparently, SCOTUS has decided they will not release the audio, but the transcript should be available later today.

Rights versus Convenience

NPR ran a story this morning about a case being argued before the U.S. Supreme Court today. This case revisits a SCOTUS decision last year.

Until last year, prosecutors in all but 10 states could introduce a notarized affidavit from crime lab experts, attesting to their findings with respect to critical evidence. This document was sufficient to state that, for example, the white powder found on a defendant was indeed cocaine, or that a defendant's DNA matched that found on a rape or murder victim. Forensic analysts only appeared if subpoenaed by the defense.

But in June, the U.S. Supreme Court ruled by a 5-to-4 vote that the clause of the Constitution that requires the accused to be confronted by the witnesses against him puts the burden on the state to produce not just paper certificates, but live forensic witnesses, who can be cross-examined. Without these live forensic witnesses, the court decided, forensic evidence cannot be introduced.

The opinion ended up putting actual practice somewhere in the middle - prosecutors must send a notice to the defense that they intend to to introduce an affidavit. The defense can then object to the affidavit being introduced without the witness appearing. If the defendant does not enter an objection, the affidavit is considered sufficient without the witness. This shifts the burden back onto the defendant, but greatly simplifies it by not requiring them to actually go through the more complex process of issuing a subpoena.

Here's the part that concerns me:

Nevertheless, four justices were outraged by the decision, predicting that it would result in a windfall for the defense, huge expense for the states and the release of guilty defendants.

Why do they want to restrict the Rights of the accused based on the expense to the states? Shouldn't a person's Right to face the witnesses against them trump any consideration of convenience and cost-savings of the government? The same government that's prosecuting them?

Only one thing has changed since June. One member of that five-justice majority — David Souter — has retired, and been replaced by Sotomayor. Prosecutors hope that having been a criminal prosecutor herself in New York, Sotomayor will be sympathetic to their cause.

This is why SCOTUS appointments are so important. One Justice can cause a complete reversal of a previous decision. One Justice can tilt the balance of power from the people to the government. One Justice can make the difference in whether you can effectively exercise your rights or not.

Let's not forget that Heller was a 5-4 decision, too.

Some 24 states are asking the court to reverse itself as well, citing backlogs, costs and other problems they say the decision has created.

Again, backlogs, costs, or "other problems" do not matter in the face of a Constitutionally Enumerated Right intended to protect the people from an overzealous or abusive government. Frankly, the decision didn't go far enough - the entire burden should be on the prosecution, and the defendant should not have to do anything for the witness against him to appear at trial.

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]

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.