Via SCOTUSBlog:

The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg.

Today’s opinion by Justice Scalia in District of Columbia v. Heller (07-290) is now available here.

The breakdown of the dissenting Justices is a bit more nuanced than SCOTUSBlog reported. The syllabus states:

Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

I will be reading the lengthy opinions and give you more details later today.

Posted by Qwertz at 10:21am on 26 Jun | No Comments

June is always an exciting time at 1 First Street NE. The Justices always like to take their time on very important cases, which means they often get announced at the very end of the term. This week is the last week before the Justices leave for their three-month summer vacation, so it is time to announce all the big decisions that are still pending.

One of the cases announced today, Kennedy v. Louisiana, asked the court whether it was constitutional, under the 8th Amendment, to put a man to death for raping a young child. Louisiana had a statute that provided for death as a penalty for raping a child under the age of 12. Mr. Kennedy did so, and was sentenced to die. In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that capital punishment was disproportionate to the crime of rape of an adult woman. In the opinion in Kennedy, (written, incidentally, by Justice Kennedy) the Court categorically rules the death penalty disproportionate to any crime other than an crime against a person which was intended to cause, and did in fact cause, that person’s death. The Court found that Mr. Kennedy had not been found to have intended to kill his victim, and that the victim had not died, and that therefore application of the death penalty in Mr. Kennedy’s case was disproportionate to his crimes and barred by the 8th Amendment.

In another of the cases announced today, Exxon v. Baker, the Court was asked to review the proportionality of punitive damages awarded against Exxon in the aftermath of the Exxon-Valdez oil tanker accident. A jury had initially awarded nearly $5B (yes, that’s a ‘B’ for billion) punitive damages verdict. That amount was cut in half by the 9th Circuit Court of Appeals. The Supreme Court overturned the punitive damages award altogether and remanded the case to the District Court with instructions that Federal Maritime Common Law (one of the very few areas where Federal Common Law still exists after Erie) prohibits the imposition of punitive damages in excess of the amount of compensatory damages awarded, meaning that the trial court could only impose punitive damages up to approximately $500M.

Probably the most widely anticipated decision of the term, District of Columbia v. Heller, was not announced today. But C.J. Roberts did announce that all remaining cases would be announced tomorrow at 10:00am. Heller is the 2nd Amendment challenge to the District’s handgun ban, where the Court is expected to expressly state whether the 2nd Amendment protects an individual right or a collective right.

I think anyone who reads my blog knows my stand on all three of these issues. But for the record: rape is a heinous offense for which death is warranted, but only under an objective statute defining the crime of rape in objective terms, which we do not have; I disapprove of civil punitive damages generally, on the grounds that punishment is the province of the criminal statutes, not of civil suits; and there is no such thing as a “collective right” for the 2nd Amendment to protect, there are only individual rights, and a statute that forbids the mere possession of a handgun violates them.

So, more tomorrow, after the last few decisions are announced.

Posted by Qwertz at 11:39am on 25 Jun | 2 Comments

I was in court all day today and so I did not find out that the Supreme Court had ruled in Boumediene v. Bush today. [Note: PDF link.]

The Court explicitly held that MCA § 7 (the jurisdiction-stripping amendment) was within Congress’ power to enact as a matter of Article III (but not within Congress’ power to enact as a matter of the Suspension Clause).

I’ve said all along that this question, which the Court calls “a threshold matter” was more significant in the long run and from a separation-of-powers standpoint than any ruling on the much more popular and eagerly reported habeas issue.

I haven’t read the whole 134-page opinion yet (or even just the section on the jurisdiction-stripping question), but when I do, I will happily give you my analysis. Whether you want it or not!

Posted by Qwertz at 1:23am on 13 Jun | No Comments

Gus Van Horn mentions the difficulty of arguing against the government’s use of behavior-modifying techniques in mixed-government contexts:

Unfortunately, everyone is so used to the government owning the roads … that few so much as bat an eye when they hear of the government looking for ways to psychologically manipulate people into doing its bidding. Indeed, in this limited context, it is hard to argue productively against the government taking advantage of such knowledge about human perception.

As a law student, this topic has caused me a great deal of concern over the past few months. I have wanted to write something about it, but have not had the time or energy to do so in any great detail. Now that the semester is over, I intend to put some substantial effort into it. I will use this post to record my initial thoughts on the problem, in anticipation of a more thorough, well-written post at some point in the future.

Constitutional Law really got me started thinking about this issue. So much of Con Law is skirting, evading, rationalizing, or outright ignoring contradictions created by unexamined bad premises. I hope to develop several concrete examples, but for now, take the example of student speech (the Tinker line of cases). Students are protected by the First Amendment’s guarantees of freedom of expression, but schools have a significant interest in carrying out their educational mission, which may at times require curtailing students’ ability to speak freely on campus.

In my head, there is no problem here. The First Amendment applies only to government actors. A school, as a private actor, may run itself as it sees fit, and may curtail student speech as much as it wants. Students who do not like it may take their business elsewhere.

But wait! Most schools are not private actors. The government runs them. Therefore, the schools are subject to First Amendment restrictions. Now what do we do?

No matter what standard of review you apply to restrictions on school speech, there must be at least a legitimate state interest in regulating the speech. In school speech cases, the state interest is in carrying out the educational mission of the school - the same interest a private school would have in regulating student speech, except here it is being offered by the government.

On the one hand, the operator of a school has a legitimate interest in regulating student speech in furtherance of its educational mission. But on the other hand, governments have no such legitimate interest. A government should not be able to get around something like the First Amendment simply by engaging in an activity that ought to be private. Government shouldn’t be able to inherit the rights of private parties by co-opting a private role.

Instead of questioning the premise - that government schools are acceptable - the legal system has created a complex, obscure, non-objective doctrine for balancing individual rights against government interests.

“!”

The idea that individual rights and government interests are things that can conflict and therefore must be weighed and balanced is so obscene that it makes me physically sick to my stomach every time I read a court opinion expressing it. Government has only one legitimate interest, as expressed in the four most important words of the Declaration of Independence: To secure these [individual] rights.

So when a case like Morse v. Frederick (the “bong hits 4 jesus” case) comes up to the Supreme Court, the rational thing to argue is that no balancing is required - the mere existence of a public school violates individual rights, including the student’s free speech rights. A rational legal system dedicated to protecting individual rights would progressively limit the powers of public schools to the point where they could no longer operate.

But ours doesn’t do this, because “society” places a value on public education, and because “democracy,” as expressed in the legislature, shows that “the people” want public schools. And who are the courts to question the will of the people?

All of this is important to me because I will one day be a lawyer. I will argue on behalf of clients. Can I ethically argue what I think will get my client the best result (the best result being the result closest to an objective ideal result), if in making that argument I must give sanction to the unchallenged false premise? Or do I challenge the false premise and lose my case, and perhaps my license? (You can lose your license for making a legal argument that is not, in the court’s opinion, rationally supported by existing law. Arguing that public schools are unconstitutional would be such an argument. It would also be a wrong thing to argue given the current approaches to constitutional law - by all the widely accepted jurisprudential models, public schools are constitutional. And because they’re constitutional, it is not in the power of the courts to do away with them, even though they really do violate individual rights.) By limiting what premises may be challenged, the courts get stuck with all these contradictions among individual rights and government interests. If you can’t challenge the false premises, you’re stuck in a situation with no right answer.

How do you argue for what is right in situations where there is no right answer?

I call these situations “sundae specials,” because of a metaphor that occurred to me almost a year ago: This is like asking whether you want sprinkles on your giant poison sundae. How do you make that decision, except by ignoring the gross underlying evil?

Other concrete examples include gay marriage (conflict between equal protection and the welfare state), the draft (do we allow discrimination based on gender in order to get fewer people drafted, or do we require Congress to draft qualified men and women, in the interest of equal protection?), and freedom of religion (misapplication of the principles of Free Exercise and No Establishment leads to contradictions between the two clauses).

I will be writing more coherently about this subject in the future. Comments and suggestions for avenues of research are welcome.

Posted by Qwertz at 1:13pm on 6 May | No Comments

…instead of Harry Potter or Star Wars, you find yourself camping out front the Supreme Court for oral arguments in D.C. v. Heller, to be argued Tuesday morning at 10:00am. The Court doesn’t allow live broadcast of oral arguments, but is making the rare accommodation of publishing its own recordings of the arguments immediately after they end, at about 11:30am. CSPAN will air them at that time, as live as they can get.

In case you’ve been living somewhere dank and unhealthy for the past six months, Heller is the first time the Court has been faced with the necessity to interpret the language of the 2nd Amendment since the mid-thirties. Significantly, the Court is expected to determine whether the 2nd Amendment refers to an individual right, or merely to a state right. A ruling won’t be out until late Summer, but oral arguments will give us an important glimpse into what the Justices are thinking.

Posted by Qwertz at 1:28am on 18 Mar | No Comments