Goodbye "Drake's Bay"?

Drakes Bay Oyster Co. Told by U.S. to Leave the Point Reyes Preserve

Excerpt:

The Supreme Court on Monday turned away an appeal from a California oyster farm that has been ordered by the government to cease operations on federal land. Drakes Bay Oyster Co. had received an order in 2012 to shut down from then-Interior Secretary Ken Salazar after its 40-year contract with the federal Park Service expired at the end of November 2012. The farm's owner, Kevin Lunny, has continued his operation while appealing in federal court. But the high court's denial of the case likely spells the imminent closure of Drakes Bay Oyster Co., which produces about a third of California's oysters. The court specifically denied the farm's request to continue operating while a trial on the merits of the case proceeds. Now that the court has denied that appeal, the trial will proceed in the U.S. District Court in Oakland, Calif. Mr. Lunny said his business will continue its fight to stay open. "One thing that's given us strength to go on is that we see this fight as not really just for the oyster farm," Mr. Lunny said at a news conference Monday after the court's ruling. "If we see this kind of treatment to be allowed and not be stopped, we fear there could be consequences for all the ranchers on federal lands." Peter Prows, who represented Drakes Bay Oyster in the dispute, called the Supreme Court's decision "very disappointing." He said his team will be given 30 days to revise their complaint before the trial begins. "We'll be deciding in the next couple weeks exactly what happens, whether we push ahead with the case," Mr. Prows said. "In the meantime, we don't know what the government is going to do." Mr. Prows added that the farm will likely have to shutter its operations within a few days.

Comment: Seems a shame .. sustainable food supply ... jobs ... a way of life ... oh well!

Breyer cites Mother Goose's three men in a tub in ruling

High Court Ruling a Relief for Floating Casinos
Excerpt:

The southern Florida city of Riviera Beach used the law to have Mr. Lozman's two-story floating home "arrested" by a U.S. marshal and towed away from a city-owned marina in 2009. Riviera Beach said Mr. Lozman's home, a boxy plywood structure with French doors and no steering or motor, violated marina-safety requirements.

The city won in a federal trial court, seized the structure, auctioned it and—since the city itself was the winning bidder—destroyed it.

Mr. Lozman, who had tangled with Riviera Beach officials for years, said the city stretched the definition of a vessel beyond the bounds of common sense, turning a local spat into a federal matter.

The Supreme Court agreed in a 7-2 ruling by Justice Stephen Breyer that cited Pinocchio and Mother Goose's three men in a tub. The city argued that the floating home was a boat because it could be transported across water.

But there's the rub-a-dub-dub, said Justice Breyer: "Not every floating structure is a 'vessel,'" he wrote. "To state the obvious, a wooden washtub, a plastic dishpan ... or Pinocchio (when inside the whale) are not vessels."

People have been fighting about what counts as a boat for a long time. One case cited in the briefs and the opinion is nearly 150 years old. The American Gaming Association said the court's decision would have a positive impact on the gambling industry, which didn't want dockside casinos treated as vessels.

The group backed Mr. Lozman in the case. Mr. Lozman, 51, said the court's ruling—and the fact that it even agreed to hear the case—left him almost speechless. "I have fought this case for so many years," he said. He said he is now in line to collect monetary damages from the city.

Mr. Lozman is looking forward to an easier life. He said he might use whatever money he wins to buy another floating structure and park it again at the same marina.

Comment: Image source  Rub-a-dub-dub

Will SCOTUS regard the "personal mandate" constitutional?

Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional

Excerpt:

... all of the leading House and Senate health-care reform bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated by CBO to cost up to $15,000 per year for a typical family. This personal mandate to enter into a contract with a private health insurance company is enforced through civil and criminal tax penalties in section 501 of the House bill and with a freestanding mandate and equally questionable civil tax penalties in sections 501 and 513 of the pending Senate bill.

The purpose of this compulsory contract, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize coverage for others as well as an industry saddled with other government costs and regulations. Congress lawfully could enact a general tax to pay for these subsidies or it could create a tax credit for those who buy health insurance, but that would require Congress to "pay for" or budget for the subsidies in a conventional manner. The sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or--through the gimmick of unconstitutional taxes or penalties they dub "shared responsibility payments"--make these transfers appear to be revenue-enhancing.

This "personal responsibility" provision of the legislation, more accurately known as the "individual mandate" because it commands all individuals to enter into a contractual relationship with a private insurance company, takes congressional power and control to a striking new level. Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions, but their efforts do not withstand serious scrutiny. An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented-- not just in scope but in kind--and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.

Comment: Will SCOTUS review it? (Of course first must be passed and signed into law. Then someone would have to refuse purchase of insurance, be fined and then challenge it. It could take years to come before SCOTUS.)

"Hillary: the Movie" and free speech

Free Speech: The Movie - Time for the Supreme Court to overturn McCain-Feingold.

Excerpt:

McCain-Feingold is a frontal assault on political speech, and President Bush's decision to sign it while claiming to dislike it was one of the worst moments of his eight years in office. Citizens United gives the Justices a new opportunity to chip away at this attack on the First Amendment, and even better if they use it to declare the whole thing unconstitutional.

Comment: This is a good "free speech" test case.

The long awaited 2nd Amendment case

Court: A constitutional right to a gun

Excerpt:

Answering a 127-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one’s home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession.

Justice Antonin Scalia’s opinion for the majority stressed that the Court was not casting doubt on long-standing bans on gun possession by felons or the mentally retarded, or laws barring guns from schools or government buildings, or laws putting conditions on gun sales.

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place.


Court rules in favor of Second Amendment gun right

Excerpt:

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Justice Antonin Scalia, writing for four colleagues, said the Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home."



Comment: I was hoping for a 7-2 or 6-3 decision. That was 5-4 underscores the importance of Bush's appointments to the Supreme Court. Had Gore in 2000 or Kerry in 2004 been elected the outcome would have been against this! Watch for Obama's reaction to this!

2nd Amendment: the long-simmering comma war

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Clause and Effect

Excerpt:

The circuit court’s opinion is only the latest volley in a long-simmering comma war. In a 2001 Fifth Circuit case, a group of anti-gun academics submitted an amicus curiae (friend of the court) brief arguing that the “unusual” commas of the Second Amendment support the collective rights interpretation. According to these amici, the founders’ use of commas reveals that what they really meant to say was “a well-regulated militia ... shall not be infringed.”

Now that the issue is heading to the Supreme Court, the pro-gun American Civil Rights Union is firing back with its own punctuation-packing brief. Nelson Lund, a professor of law at George Mason University, argues that everything before the second comma is an “absolute phrase” and, therefore, does not modify anything in the main clause. Professor Lund states that the Second Amendment “has exactly the same meaning that it would have if the preamble had been omitted.”

Refreshing though it is to see punctuation at the center of a national debate, there could scarcely be a worse place to search for the framers’ original intent than their use of commas. In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific. Commas and other marks evolved from a variety of symbols meant to denote pauses in speaking. For centuries, punctuation was as chaotic as individual speech patterns.

The situation was even worse in the law, where a long English tradition held that punctuation marks were not actually part of statutes (and, therefore, courts could not consider punctuation when interpreting them). Not surprisingly, lawmakers took a devil-may-care approach to punctuation. Often, the whole business of punctuation was left to the discretion of scriveners, who liked to show their chops by inserting as many varied marks as possible.

Another problem with trying to find meaning in the Second Amendment’s commas is that nobody is certain how many commas it is supposed to have. The version that ended up in the National Archives has three, but that may be a fluke. Legal historians note that some states ratified a two-comma version. At least one recent law journal article refers to a four-comma version.

Comment: My hope is that the SCOTUS will uphold the Appeals Court and invalidate D.C.'s gun ban

The Second Amendment is an individual right

Opinion Journal: The Supreme Court has a historic opportunity to affirm the individual right to keep and bear arms

Excerpt:

The Fourth Amendment says, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." The "people" here does not refer to a collectivity, either.

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Here, "the people" are separate from "the states"; thus, the Second Amendment must be about more than simply a "state" militia when it uses the term "the people."

Consider the grammar. The Second Amendment is about the right to "keep and bear arms." Before the conjunction "and" there is a right to "keep," meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

Colonial history and politics are also instructive. James Madison wrote the Bill of Rights to provide a political compromise between the Federalists, who favored a strong central government, and the Anti-Federalists, who feared a strong central government as an inherent danger to individual rights. In June 1789, then-Rep. Madison introduced 12 amendments, a "bill of rights," to the Constitution to convince the remaining two of the original 13 colonies to ratify the document.

Madison's draft borrowed liberally from the English Bill of Rights of 1689 and Virginia's Declaration of Rights. Both granted individual rights, not collective rights. As a result, Madison proposed a bill of rights that reflected, as Stanford University historian Jack Rakove notes, his belief that the "greatest dangers to liberty would continue to arise within the states, rather than from a reconstituted national government." Accordingly, Mr. Rakove writes that "Madison justified all of these proposals (Bill of Rights) in terms of the protection they would extend to individual and minority rights."

One of the earliest scholars of the Constitution and the Bill of Rights, Justice Joseph Story, confirmed this focus on individuals in his famous "Commentaries on the Constitution of the United States" in 1833. "The right of the citizens to keep and bear arms," Story wrote, "has justly been considered, as the palladium of the liberties of republics, since it offers a strong moral check against the usurpation and arbitrary power of rulers . . ."

More from Opinion Journal

Comment: Earlier CFG posts on the 2nd Amendement

SCOTUS to take 2nd Amendment case

Supreme Court Will Hear D.C. Guns Case

Excerpt:

WASHINGTON (AP) - The Supreme Court said Tuesday it will decide whether the District of Columbia can ban handguns, a case that could produce the most in-depth examination of the constitutional right to "keep and bear arms" in nearly 70 years.

The justices' decision to hear the case could make the divisive debate over guns an issue in the 2008 presidential and congressional elections.

The government of Washington, D.C., is asking the court to uphold its 31-year ban on handgun ownership in the face of a federal appeals court ruling that struck down the ban as incompatible with the Second Amendment. Tuesday's announcement was widely expected, especially after both the District and the man who challenged the handgun ban asked for the high court review.

The main issue before the justices is whether the Second Amendment of the Constitution protects an individual's right to own guns or instead merely sets forth the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.

Gun-control advocates say the Second amendment was intended to insure that states could maintain militias, a response to 18th century fears of an all-powerful national government. Gun rights proponents contend the amendment gives individuals the right to keep guns for private uses, including self-defense.

Alan Gura, a lawyer for the D.C. residents who challenged the ban, said he was pleased that the justices were considering the case.

"We believe the Supreme Court will acknowledge that, while the use of guns can be regulated, a complete prohibition on all functional firearms is too extreme," Gura said. "It's time to end this unconstitutional disaster. It's time to restore a basic freedom to all Washington residents."


Previous CFG post: Will the Supremes take D.C. 2nd Amendment case?

Prediction: Either 5-4 or 6-3 to overturn the District of Columbia's stringent handgun ban.

NRA-ILA: U.S. Supreme Court to Hear First Second Amendment Case Since 1939

NYTimes: Justices Will Decide if Handgun Kept at Home Is Individual Right

Excerpts:

Because none of the justices now on the court have ever confronted a Second Amendment case, any prediction about how the court will rule is little more than pure speculation.

Of the hundreds of gun regulations on the books in states and localities around the country, the district’s ordinance is generally regarded as the strictest. Chicago comes the closest to it, banning the possession of handguns acquired since 1983 and requiring re-registration of older guns every two years. New York City permits handgun ownership with a permit issued by the Police Department.

The District of Columbia ordinance not only bans ownership of handguns, but also requires other guns that may be legally kept in the home, rifles and shotguns, to be disassembled or kept under a trigger lock. The capital’s newly empowered City Council enacted the ordinance in 1976 as one of its first measures after receiving home-rule authority from Congress.

....

In striking down the district’s ordinance, the United States Court of Appeals for the District of Columbia Circuit said that an individual-right interpretation of the Second Amendment would still permit “reasonable regulations,” but that a flat ban was not reasonable.

Dennis A. Henigan, a lawyer at the Brady Center to Prevent Gun Violence, which advocates strict gun control, said that if the justices agree with the appeals court, an important question for future cases will be “what legal standard the court will eventually adopt for evaluating other gun regulations.”

The Supreme Court is at stake!

High court matters in '08 vote

Excerpt:

Presidential candidate Rudy Giuliani knows how important the U.S. Supreme Court is. He ought to; he once argued a case there. It was in 1983, and he won it for the Gipper — President Reagan — in a case that strengthened the law against bank robbery.

So it was no surprise that when Giuliani was courting the Christian right at the recent Values Voter Summit in Washington, D.C., he said, "No set of decisions the next president makes will be more important than the judges that that president appoints." He promised that if elected, he would appoint "justices in the mold of Justice (Antonin) Scalia, Justice (Clarence) Thomas, Justice (Samuel) Alito or Chief Justice (John) Roberts." President Bush also promised in his 2000 and 2004 presidential campaigns to nominate justices who would not make social policy from the bench. And when asked which justices he admired most, he named two: Scalia and Thomas.

Comment: The lasting Bush legacy will be Alito & Roberts. What would the legacy be of Hillary or Obama?

Happenings:

1. Kathee and I met her Brother, Dave; and his wife Colleen at The Tea House in Plymouth tonight.
   
2. I am in class all day tomorrow (Microsoft Access 2007). A nice break from work!
   

Will the Supremes take D.C. 2nd Amendment case?

Justices to decide whether to take up case on strict limits approved in D.C.

Excerpt:

WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.

Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia's stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.

"If the court decides to take this up, it's very likely it will end up being the most important Second Amendment case in history," said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.

Henigan predicted "it's more likely than not" that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.

Lawyers are swarming.

Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.'s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it.

Comment: Sounds like they will decide this week whether to consider the case. I hope they do. Important links below:

Wikipedia: Parker v. District of Columbia

Both Sides Fear Firing Blanks if D.C. Gun Case Reaches High Court

A note on District of Columbia v. Heller

A Shot at the Second Amendment

In praise of Clarence Thomas

The Real Clarence Thomas : His fidelity to the Constitution often leads to results liberals like

By Dr Yoo (a professor at the Law School of the University of California at Berkeley)

Excerpt:

No one, of course, would deny that Justice Thomas has strong conservative views on constitutional law. He would reject much of affirmative action, end constitutional protection for abortion, recognize broad executive powers in wartime and allow religious groups more participation in public life. What he brings to the court as no other justice does is a characteristically American skepticism of social engineering plans promoted by elites--whether in the media, academia or well-heeled lobbies in Washington--and a respect for individual self-reliance and individual choice. He writes not to be praised by professors or pundits, but for the American people.
As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the court is the very definition of the healthy diversity his detractors pretend to support.

In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."

Comment: A worthwhile read!