On "stare decisis"

Thomas and Breyer’s ‘Stare’ Contest - Their sharp disagreement about precedent reflects different worldviews that go far beyond abortion.

Excerpt:

Beginning with the Warren Court in the 1950s, bold and audacious justices began making up law out of the Constitution’s “emanations, formed by penumbras”—literally, gas and shadows. As Justice Thomas has objected, the court invented rights that sharply curtailed the traditional order-keeping authority of police and teachers, making streets, schools, and housing projects in poor neighborhoods dangerous, and depriving mostly minority citizens of the first civil right—to be safe. The justices have even trampled the Bill of Rights, sanctioning campaign-finance laws that curtail the political speech at the core of First Amendment protections.

Comment: Important read. Ask yourself - should Dred Scott v. Sandford have stood? Then consider Roe v. Wade.

On the #Worldview clash over stare decisis https://t.co/VD0Ck7GZ5m pic.twitter.com/0urwdEc6cL

— James Peet (@jrpeet) May 23, 2019

A Freedom of Speech lesson from Skokie (1977)

'Swastika war': When the neo-Nazis fought in court to march in Skokie

Excerpt:

Four decades ago, a neo-Nazi group announced plans to march in Skokie, home to thousands of Holocaust survivors. The news set off a rhetorical firestorm that the Chicago Tribune dubbed the "Skokie swastika war." In 1977, the swastika became the centerpiece of a constitutional question posed by a small group of neo-Nazis who called themselves "National Socialists" — a callback to the formal name of Adolf Hitler's political party. When the group encountered pushback over its plans to march through Skokie that spring while carrying flags bearing the swastika, its leader, Frank Collin, invoked the First Amendment as his defense.

Skokie, Nazis and the First Amendment: Freedom of Speech on trial - Confederate Flags and Swastikas are uncomfortable, but still protected under the Constitution.

Excerpt:

The National Socialist Party of America, neo-Nazis, wanted to march in Skokie on May 1, 1977. They asked Skokie officials for permission to stage a rally in front of the village hall to protest a local ordinance. The group planned to wear Nazi uniforms with swastika emblems and armbands. It also promised to demonstrate peacefully and to obey reasonable police instructions or requests.

While most Americans believe in the First Amendment, most also would not want this group to march where they live and work. In Skokie, this was especially true, as most of its residents were Jewish. Thousands of Skokie residents survived concentration camps and the Holocaust and believed they were safe from the influence of Adolf Hitler here in the United States

Not surprisingly, a firestorm of controversy erupted. The Nazis took the case to court. The trial court disallowed the march, and then the Illinois appellate court upheld the ban after refusing to look at the case. The Illinois Supreme Court then refused to grant review of the case or to stay the injunction, effectively denying the Nazis their rights to free speech and assembly.

Lawyers from the American Civil Liberties Union defended the Nazi request. The ACLU asserted that they were not defending Nazi idealism but the freedom of speech. Attorney David Goldberger, a Jew, stated:

“Your Honor, if this court issues a preliminary injunction in the case, enjoining the demonstration of Mr. Collin and the National Socialist Party of America, I fear that the Village of Skokie will be dancing in the grave of the First Amendment.”

The Illinois Supreme Court denied a stay of injunction. The Nazis then took the case to the United States Supreme Court.

The Village of Skokie argued that neo-Nazi speech promoted racial or religious hatred and is unprotected by the First Amendment. The courts rejected this argument on the grounds that it is not a reason for suppressing speech alone. As long as they are not burning down houses, inflicting bodily harm or destroying property, they have a right to express what they want. Why? If the Supreme Court silenced one group, it effectively silences all groups since all Americans have the same rights under the Constitution – even groups that are offensive to mainstream America.

The village also claimed that the purpose of the marches was to inflict emotional harm on the Jewish residents of Skokie. However, the Nazis originally petitioned to march in a different town with a minute Jewish population. Denied that permit, they decided to march in Skokie so they would get publicity for their grievance. Then, when faced with having to pay $350,000 to cover insurance for that march, they became more resolute.

In addition, Skokie mayor Albert Smith testified that, if the Nazis marched, there would be uncontrollable violence as a result. But once a government gives in to such threats of violence, it effectively empowers any group of people who wants to silence others to do so simply by threatening to violate the law.

In the end, the Supreme Court ordered the Illinois Supreme Court to respond. It finally struck down the injunction against the Nazis in January 1978, paving the way for a Nazi demonstration. Fortunately, they declined to march in Skokie and marched somewhere else.

The Village of Skokie had also passed three new ordinances. The first required that a permit would be necessary for any demonstration. Next, political organizations could not demonstrate in military style uniforms. The third ordinance banned the display of symbols offensive to the community.

The Supreme Court, which included Justice Thurgood Marshall, the first black American Supreme Court Justice found the ordinances to be unconstitutional.

I [the author of this article] was 13 when this happened. During this time, the Nazis staged a march at Veterans Memorial Park in South Holland, Ill., not far from where my family lived. My girlfriends and I told my mom we wanted to go throw rocks and eggs at them. My mother, in her wisdom, instead of saying no, explained that if we did that we would be giving the Nazis what they wanted — publicity. Good or bad publicity put them in the public eye — right where they wanted to be. And they were willing to endure rocks, eggs and other items thrown at them if necessary. We decided that the Nazis were not worth our time and effort. The best way to deal with groups like this is to not give them an audience. And we didn’t.

The Supreme Court Case: National Socialist Party of America v. Village of Skokie

In a per curiam opinion, the Court held that Illinois must provide strict procedural safeguards, including appellate review, to deny a stay for an injunction depriving the Nazi Party of protected First Amendment rights. The Court treated the Illinois Supreme Court's denial of a stay as a final judgment for the purposes of Supreme Court jurisdiction because it involved a right separable from and collateral to the merits of the Nazi Party's case. Hence, the Court also treated the Nazi Party's application for a stay as a petition for certiorari. The Court reversed and remanded the case for further proceedings.

Comments: There are groups that I find absolutely repugnant:

• NeoNazis
• White Supremacists 
• The Westboro Baptist Church  / this group was involved in a SCOTUS decision - Snyder v Phelps
• Communists
• And more

But I support their right to peacefully and legally assemble and express their views (no matter how repugnant I find them)

On  the thugs on both sides in Charlottesville

The second thing the president did that was worthy was that he denounced the criminals and thugs on both sides. This is what you want from magistrates. If the white supremacists get a permit, and they are marching to Hell in an orderly fashion, they ought to be allowed to march there unmolested. If antifa thugs show up with baseball bats and attack, they ought to be treated as the violent instigators they are. If one of the white supremacists drives his car into the crowd on the other side, that is not self-defense, and he needs to be prosecuted to the fullest extent of the law. Policemen, and the magistrates behind them, are in the business of maintaining public order, which means that they do not get to approve of anarchy from one side only.

If there is outrage over Trump’s denunciation of both sides, then it is plain and obvious that someone is attempting to steer us. In response to my post yesterday, someone breathlessly announced that I had equated Black Lives Matter with the Klan. Why, yes, I did. Hatred and murder are to be reprobated, period. Movements that excuse them are to be reprobated, period. But when your moral compass is governed by the skin tone of your tribe, instead of letters in granite inscribed by the finger of God, then you are going to get the kind of identity race war that we are in the process of getting.

Both sides https://t.co/Q6TPWWWA6U

— James Peet (@jrpeet) August 17, 2017

Antifa and the Alt-Right, Growing in Opposition to One Another https://t.co/Ass2qBEy3s

— James Peet (@jrpeet) August 16, 2017

I wasn't aware of 1969 SCOTUS case

The First Amendment, SCOTUS said, protected a Ku Klux Klan member decrying Jews and blacks in Ohio in 1969. https://t.co/vJ7ibYM0uG

— USA TODAY (@USATODAY) August 17, 2017

Here’s How Virginia State Police Facilitated Violence At Charlottesville https://t.co/K8gHyH2xqO via @dailycaller

— James Peet (@jrpeet) August 18, 2017

ACLU will no longer defend hate groups protesting with firearms https://t.co/VGPgMFoCRv via @WSJ

— James Peet (@jrpeet) August 19, 2017

Steve Rodgers aka Captain America, fighting for Freedom of Expression, before a vile breed of SJW's turned the great U.S. symbol into a Nazi pic.twitter.com/I4awqH7Mly

— Bosch Fawstin (@BoschFawstin) August 19, 2017

Lee v. Tam: Why "The Slants" trademark dispute matters

Supreme Court To Hear The Slants' Trademark Case This Week

Excerpt:

The U.S. Supreme Court will hear oral arguments this week for a trademark dispute concerning the Portland dance-rock band, The Slants. 

The federal Patent and Trademark Office refuses to register the band’s trademark, because, the PTO argues, the band’s name is an ethnic slur. Attorneys for the government argue that a ruling against the PTO in this case might undermine other important areas of trademark law.

Professor Eugene Volokh teaches First Amendment and copyright law at the UCLA School of Law. He and another professor helped The Slants’ legal team on briefs for the case. They contend the band’s right to register is a matter of free speech.

“In recent years the Patent and Trademark office has become more likely to say certain trademarks should be rejected,” Volokh said, “because they express essentially offensive political or ideological opinions. So, for example, the Redskins.”

The Washington Redskins football team is awaiting the outcome of the Slants case. Its own trademark was revoked for similar reasons, and the team is trying to get it reinstated. The Slants have traveled to Washington, D.C., for the hearing, scheduled for Wednesday.

Comment: Watch this one! More from the Star Tribune / SCOTUS Blog

As for the Slants, the band just released a new song called "From the Heart" about the upcoming case. Tam says it's "like an open letter to the trademark office saying we're not going to give up, we're going to continue fighting for what's ours." The song is on the band's latest album "The Band Who Must Not Be Named."

Their Twitter account 

Updates: 1/18/2017

Justices raise doubts over law barring offensive trademarks

The justices heard arguments in a dispute involving an Asian-American band called the Slants that was denied a trademark because the U.S. Patent and Trademark office said the name is offensive to Asians. Justice Elena Kagan reflected the concerns of several justices when she said government programs are not supposed to make a distinction based on viewpoint. "The point is that I can say good things about something, but I can't say bad things about something," she said. "And I would have thought that that was a fairly classic case of viewpoint discrimination." The Oregon-based band says the 70-year-old law violates free-speech rights. A federal appeals court had ruled that the law is unconstitutional, but the government appealed. A victory for the band would be welcome news for the Washington Redskins, embroiled in their own legal fight over the team's name. The trademark office canceled the football team's lucrative trademarks in 2014 after finding the word "Redskins" is disparaging to Native Americans. But the justices also seemed concerned that imposing absolutely no limits on trademark names might go too far. At issue is a law that prohibits registration of marks that "may disparage ... persons, living or dead, institutions, beliefs or national symbols." A trademark confers certain legal benefits, including the power to sue competitors that infringe upon the trademark. Slants founder Simon Tam says his goal was to reclaim a derisive slur and transform it into a badge of ethnic pride. But the trademark office said a term can be disparaging even when used in a positive light. A federal appeals court sided with the band, ruling that the law violates the First Amendment. The Obama administration wants the high court to overturn that ruling. Justice Department lawyer Malcolm Stewart told the justices that the law does not restrict speech because the band is still free to use the name even without trademark protection. Stewart said the government was concerned about allowing trademarks for racial slurs, religious insults and the "vilest racial epithets" that distract consumers and hinder commerce. Justice Stephen Breyer wasn't impressed, saying he could think of "perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages." "What business does Congress have picking out this one, but letting all the other distractions exist?" Breyer asked. Justice Anthony Kennedy compared the trademark program to copyrights, noting that the government can't bar disparaging copyrights. "We have a culture in which we have tee shirts and logos and rock bands and so forth that are expressing a point of view," Kennedy said. "They are using the market to express views." Justice Ruth Bader Ginsburg said the law wasn't being enforced consistently, noting that the term "Heeb" was approved in one trademark application, but not in another. The term is considered offensive to Jews. John Connell, attorney for the Slants' founder, said the First Amendment should allow trademark approval of virtually any expression without limits. But some justices seemed to think his argument went too far. The trademark law, for example, places restrictions on words that are libelous or cause confusion in the marketplace. "You want us to say that trademark law is just like a public park" where people can say whatever they want, Kennedy told Connell. "Good-bye. That's it. That's your argument." Justice Sonia Sotomayor wondered about libelous trademarks. What if someone tried to register "Trump is a thief" before the president-elect became a public figure, she asked. Connell said that should be allowed. "That makes no sense," Sotomayor said. Breyer noted that the Slants are free to use their name in all kinds of ways, just not in the trademark itself. "This is not a general expression program," Breyer said. "It stops nobody from saying anything." Like the Slants, the Redskins say their name is meant to honor American Indians. But the team has spent years fighting legal challenges from Native American groups that say it's a racial slur. A federal judge upheld the trademark office's cancellation of the name and the team is appealing. The matter is on hold pending the outcome of the Slants case. A ruling in that case is expected by the end of June.

Lee v Tam  Update:

The Slants convince Supreme Court that law barring the band's 'offensive' trademark is unconstitutional https://t.co/i0ohqo40zU

— Daily Mail US (@DailyMail) June 19, 2017

Will SCOTUS ruling on King v. Burwell be "nail in coffin" for Obamacare?

Supreme Court to Hear Case on Health Law Subsidies - Challengers Argue Affordable Care Act Only Permits Tax Credits on State-Run Exchanges
Excerpt:

The Supreme Court on Friday agreed to review whether consumers can receive subsidies through the Affordable Care Act for insurance purchased through a federal exchange, taking up a key piece of the Obama administration’s health-care law. The move puts before the high court one of several cases over the subsidies. The justices accepted a challenge from Virginia that the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., had rejected. The Fourth Circuit in July found in favor of an Internal Revenue Service rule extending tax credits to lower-income Americans who purchase coverage through the federal insurance exchange. Conservative groups, seizing on wording in the Affordable Care Act, have sued, arguing the subsidy is limited to people who buy insurance through state-run exchanges. Federal exchanges are in place in more than 30 states that haven’t established their own exchanges.

Comment: See The real threat to the ACA

A lawsuit known as Halbig v. Burwell has been winding through the courts, and if plaintiffs succeed it could mean the elimination of federal subsidies for as many as 7 million people covered under the program by 2016. It could still take a year or two for the legal maneuvering to play out, and the case could ultimately land at the Supreme Court. The thing to know is that this is a sleeper case with potential ramifications more serious than anything likely to get through Congress during the next two years.

Comment: Image source

Several updates (on 11/8):

• The Supreme Court agrees to hear the federal subsidy case
• Why did the court grant cert in King v. Burwell?
• King v. Burwell is *not* a major constitutional challenge to Obamacare.: "The case now before the court is not making a constitutional claim that Congress doesn’t have the power to pass federal exchange subsidies, but merely that the statute they wrote did not authorize such subsidies ... And the remedy for that claim is very simple. If it truly was the intent of Congress to give the administration the power to provide Obamacare subsidies even in states that did not set up a healthcare exchange, then the Court can simply send the matter back to Congress and have them add whatever authorizations Congress desires to the law."

The 'Overcriminalization' of John Yate's 3 shredded groupers

Something Fishy in Sarbox Land - How many groupers does it take to expose federal overreach and a flawed law gone wrong again?

Excerpt:

On Wednesday the U.S. Supreme Court is hearing argument in Yates v. United States. Since the case turns in part on the fate of missing fish, the court’s decision to take it up has been easily mocked in some quarters. But there’s nothing frivolous about this dispute. Fisherman John Yates, accused of hiding some of his catch from officials, has been charged with violating the Sarbanes-Oxley financial reform act and could have spent 20 years in prison. Yates presents the Supreme Court with the opportunity to slow down the overcriminalization of America. The ordeal of Mr. Yates began in 2007 on his commercial fishing boat, the Miss Katie, in the Gulf of Mexico. During a routine stop at sea to measure the size of his catch of several thousand fish, fish-and-game officials counted 72 alleged undersized grouper. Three days later, a count by agents at the dock found only 69 grouper. Mr. Yates was eventually charged under the anti-shredding statute of Sarbanes-Oxley. Specifically, the Justice Department claimed that Mr. Yates had knowingly “altered, destroyed, mutilated, concealed, covered up, falsified, or made a false entry in a record, document, or tangible object with the intent to impede or obstruct an investigation.”

Post-Enron Law Snags Fisherman - Supreme Court to consider whether case represents 'overcriminalization.'

Excerpt:

A Gulf Coast fisherman, caught in the wide net cast by a post-Enron financial fraud law, will ask the U.S. Supreme Court on Nov. 5 to reverse his conviction for destroying undersized red grouper. The facts of John Yates' case read like either a tale of the one that got away or of prosecutors run amok. But underlying Yates v. United States is a purported "overcriminalization epidemic" that has united the nation's business community with the criminal defense bar against the federal government and a tool designed to prevent the destruction of evidence. "It's an issue that brings people together from all walks of the political spectrum," said William Shepherd of Holland & Knight, who filed an amicus brief for the criminal defenders. "John Yates got caught up in it, but it could just as easily have been your cousin or your mom." Overcriminalization at the federal level is "definitely a problem," said Kevin Walsh of the University of Richmond School of Law. "But it's also a problem to have the judiciary giving artificially narrow constructions to deliberately broad provisions, especially when they relate to evidence destruction." The story began on a summer day on the Gulf of Mexico, with Yates' boat, the Miss Katie, six days into the commercial harvest of red grouper. A federally deputized state fish and wildlife conservation officer boarded for a routine inspection. Federal law requires harvested red grouper to be at least 20 inches in length. The officer found 72 grouper measuring between 18 3/4 and 19 3/4 inches. He issued a civil citation for harvesting undersized fish and ordered that they be separated so that they could be destroyed when the boat returned to dock. Two days later, the boat docked and an inspector remeasured the fish. After finding discrepancies in the count and the measurements, he suspected they were not the same fish he had set aside at sea. A crew member later told federal agents the captain had directed the crew to throw the original undersized fish overboard and to catch others — apparently also undersized — to replace them.

Comment: Too many laws! Too much Federal reach! See You Commit Three Felonies a Day. Image source. Screenshot from 2nd article and the fish in question.

The ObamaCare ruling: Four positive things

Chief Justice John Roberts is a Genius!

 Excerpt:

Chief Justice Roberts actually ruled the mandate, relative to the commerce clause, was unconstitutional. That’s how the Democrats got Obama-care through in the first place. His ruling means Congress can’t compel American citizens to purchase anything. Ever. The notion is now officially and forever, unconstitutional. As it should be.

"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

Excerpt from ruling (p 12):

Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices

Comments:

• PDF of ruling
• HT: Denny Burk

Here are the four positive things:

1. It's a tax: Roberts correctly called it a tax. Republicans can run on this!
2. Door closed on the use (er ... abuse) of the commerce clause to compel citizens to purchase something!
3. The ball is now in Mitt Romney’s court. The GOP leaders of the Congress have been given a political gift of historic dimensions
4. We are just months away from another quadrennial election. People have a choice and if we (the collective we) are stupid enough to reelect Obama well we deserve what we get!

Preview: ObamaCare before the Supremes

The Supreme Court Weighs ObamaCare

WSJ article - 1st paragraph:

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution's structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

Comment: So much at stake!

The Constitutionality of Obamacare

Why the Health-Care Bills Are Unconstitutional

Excerpts:

President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate.

...

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government.

Comment: Should be interesting!

the Second Amendment came within a single vote of becoming a dead Constitutional letter

Silver Bullet

Excerpt:

... it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the "right to privacy" – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government.

Justice Breyer, who wrote a companion dissent, takes a more devious tack. He wants to establish an "interest-balancing test" to weigh the Constitutionality of particular restrictions on gun ownership. This balancing test is best understood as a roadmap for vitiating the practical effects of Heller going forward.

Using Justice Breyer's "test," judges could accept the existence of an individual right to bear arms in theory, while whittling it down to nothing by weighing that right against the interests of the government in preventing gun-related violence. Having set forth this supposedly neutral standard, Justice Breyer shows his policy hand by arguing that under this standard the interests of the District of Columbia would outweigh Mr. Heller's interest in defending himself, and the ban should thus be upheld.

But as Justice Scalia writes, no other Constitutional right is subjected to this sort of interest-balancing. "The very enumeration of the right takes [it] out of the hands of government" – even the hands of Olympian judges like Stephen Breyer. "Like the First, [the Second Amendment] is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew."



Comment: Good read.

SCOTUS: DISTRICT OF COLUMBIA et al. v. HELLER

SCOTUS: DISTRICT OF COLUMBIA et al. v. HELLER

Comment: For all you SCOTUS and 2nd Amendment fans .. here are the details. Link has the full ruling.

Excerpts:

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.
...
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

WSJ: Heller case

Guns and Legal Ammo

Excerpt:

District of Columbia v. Heller has become the test case for a question that has animated legal scholars, politicians and lower courts for much of our modern history: Is the Second Amendment guarantee a collective right, which is to say it is reserved only for state militias, or is it an individual right?

Judge Laurence Silberman's landmark opinion last year for the D.C. Circuit Court of Appeals struck down D.C.'s ban on handguns, rejecting the militia argument and scouring the historical and legal record to show that the Founders clearly intended to protect an individual's right to defend himself and family. The District appealed, and so the Supremes will issue the most important Second Amendment ruling in decades.

Judging by Tuesday argument, the High Court has a majority in support of the circuit court opinion. Chief Justice John Roberts asked why the Framers included the word "people" if the Amendment only applied to militias. Justice Antonin Scalia discussed the importance the Framers attached to providing citizens the means to protect against tyrannical government. Justice Anthony Kennedy, often the Court's swing vote, informed all in attendance that "In my view, there's a general right to bear arms quite without reference to the militia either way."

Comment: Results in June

Layman's guide to "Heller v. District of Columbia"

WSJ: Gun-Rights Showdown

Summary:

1. Heller will be decided on originalist grounds not the doctrine of stare decisis.
   
2. Heller is a federal case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the 14th Amendment, which limits state powers.
   
3. Heller involves a complete ban on operable firearms in the home. No state has a comparable law. And under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would be gun rights.
   

Conclusion:

But although the implications of striking down the D.C. gun ban are limited, a decision upholding an unqualified individual right in Heller would still be a significant victory for individual rights and constitutionalism. To shrink from enforcing a clear mandate of the Constitution -- as, sadly, the Supreme Court has often done in the past -- would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Transcript: Heller SCOTUS case

Transcript: Heller SCOTUS case (PDF)

Excerpts:

CHIEF JUSTICE ROBERTS: If you're right, Mr. Dellinger, it's certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"? (p 4)

JUSTICE KENNEDY: One of the concerns, Mr. Dellinger, of the framers, was not to establish a practice of amending the Constitution and its important provisions, and it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red brief, but that conforms the two clauses and in effect delinks them. The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause. Those were very important clauses. As you've indicated, they're in Article I and Article II. And so in effect the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms. (pp 5-6)

JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed. (p 7)

JUSTICE SCALIA: Blackstone thought it was important. Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee. (p 8-9)

JUSTICE KENNEDY: Well, there's no question that the English struggled with how to work this. You couldn't conceal a gun and you also couldn't carry it, but yet you had a right to have it. Do you think the Second Amendment is more restrictive or more expansive of the right than the English Bill of Rights in 1689? (p 16)

JUSTICE SCALIA: Doesn't "well regulated" mean "well trained"? It doesn't mean -- it doesn't mean "massively regulated." It means "well trained." (p 26)


Comment: 108 pages!

NYTimes: Supreme Court Hears Gun-Control Case

Will SCOTUS decide "the individual-versus-collective argument"?

Court decision on gun-control is personal for 2 women

Excerpt:

"In the event that someone does get in my home, I would have no defense, except maybe throw my paper towels at them," she said. But Parker lives in the nation's capital, which does not allow its residents to possess handguns.

Elilta "Lily" Habtu thinks that is how it should be. She knows about gun violence firsthand, surviving bullets to the head and arm fired by the Virginia Tech University shooter nearly a year ago.



Comment: Is personal protection guaranteed? Previous CFG post

More: Supreme Court considers 'right to bear arms'

Excerpt:

The court has not conclusively interpreted the Second Amendment in the 216 years since its ratification. The basic issue for the justices is whether the amendment protects an individual's right to own guns or whether that right is somehow tied to service in a state militia.

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

But Dick Anthony Heller, 65, sued the District after it rejected his application to keep a handgun at his home for self-defense. His lawyers say the amendment plainly protects an individual's right.

The court's ruling, expected by the end of June, could have a far-reaching impact on gun-control laws in the United States and could become an issue in the November election.