A Note on Heller and Party Politics
David raises the interesting question of whether conservative justices "mak[e] decisions in ways that create political debates sure to help Republicans." (And whether liberal justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five-person conservative majority missed a chance in Heller : Deciding for D.C. would probably have motivated the conservative base, while deciding for Heller probably fails to mobilize them very much. David doubts that such considerations actually motivate the justices. Similarly, David asks whether the smart move by Republican-appointed justices really is to hollow out Roe and Casey instead of overturning them.
what I have said before. We should not confuse the motivations of presidents and party leaders in nominating certain justices with the motivations of the justices themselves.
Of Heller, Roe, and Politics
At least one leading
believes the court fell down on the job in
if it views its job as making decisions in ways that create political debates sure to help Republicans, adding further support for my
that the claims by some that the court's approach to
(bend it, don't break it)
thus far is best explained by a desire to keep that precedent alive for the purpose of ensuring Democrats lose. Jack?
"Democracy dies behind closed doors," Judge Damon Keith wrote in an opinion for the 6th Circuit Court of Appeals regarding media and public access to terrorism cases.
Our theory of government also dies in hearings like this one, featuring David Addington and John Yoo —memorably described by Dana Milbank and Emily Bazelon in a pair of columns for the Post and Slate , respectively. Calling Addington and Yoo hostile witnesses doesn't begin to describe the level of their contempt for Congress, the hearing, and the democratic processes that brought them to testify by way of a subpoena.
Check out this exchange:
Could the president ever be justified in breaking the law? "I'm not going to answer a legal opinion on every imaginable set of facts any human being could think of," Addington growled. Did he consult Congress when interpreting torture laws? "That's irrelevant," he barked. Would it be legal to torture a detainee's child? "I'm not here to render legal advice to your committee," he snarled. "You do have attorneys of your own."
He had the grace of Gollum as he quarreled with his questioners. In response to one of the chairman's questions, he neither looked up nor spoke before finishing a note he was writing to himself. When Rep. Debbie Wasserman Schultz, D-Fla., questioned his failure to remember conversations about interrogation techniques, he only looked at her and asked: "Is there a question pending, ma'am?" Finally, at the end of the hearing, Addington was asked whether he would meet privately to discuss classified matters. "You have my number," he said. "If you issue a subpoena, we'll go through this again."
Crikey. No wonder they kept Addington in the shadows; public advocacy is clearly not his gig.
"This Decision Will Cost American Lives": A Note on Heller and the Living Constitution
decision a few weeks back, Justice Scalia argued that the majority's decision giving Guantanamo detainees a right to a judicial hearing would cost American lives. One could probably say the same thing of Justice Scalia's majority opinion in
. After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result.
The Minimalist Court
If I had to describe the major theme of the October 2007 term, it would be the court as a minimalist court with no surprises. There were no major revolutions this term. Even the big cases were narrow and interstitial. The court mostly took baby steps. It may not seem that way this week, with big cases like Boumediene , Heller , and Kennedy v. Louisiana . But step back a bit. Even these big cases were actually really narrow. Boumediene went where the court very strongly hinted it was going in Rasul v. Bush back in 2004: The court's reasoning was limited to the few hundred detainees at Guantanamo Bay and did not order anyone's release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia . The court's opinion deals only with child-rape capital cases, of which Kennedy's own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun-control laws are all constitutional. This isn't to say that there were no important cases this term. But on a historical scale, the 2007 term is revealing a minimalist court: It intervenes rarely, doesn't say much when it speaks, and leaves most battles for another day.
Guns and Slate
C'mon, Orin, you don't give us enough credit with your non-Volokh post . There are plenty of truck-ownin', tobacco-usin', gun-shootin' folks here at Slate . Admittedly, we're a bit of a discrete and insular minority within the Slate family, but I don't think your Heller discussions are unwelcome here.
I'm going through the opinion now, and one thing that leaped out at me was the limiting language that Justice Antonin Scalia chose to use in his opinion. He carves out two very important limitations on the Second Amendment right—so big that they encompass nearly all gun control in existence today, save those most extreme bans like that in DC:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [cites omitted]
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
So, if I understand this right, Scalia's got no beef with " felon in possession " statutes like those at the heart of the Justice Department's Project Safe Neighborhoods strategy. And he's got no beef with states banning assault rifles, machine guns, rocket-propelled grenades, and other instruments of violence that are firearms but may be just a tad bit dangerous for you or me to keep and bear. And I think Scalia's also cool with background checks, registration, and waiting periods If I'm adding up the scorecard right, that means most federal, state, and local gun control in America survives Heller .
What do you think?
In case some readers here may have tried to visit the Volokh Conspiracy today, we're, um, having problems due to incoming traffic. The site is not letting any of us bloggers log in to post, so although we have a ton of posts we want to write about Heller , we can't actually log in. I may post some stuff here instead, although posting on a Second Amendment case here at Slate instead of at Volokh is kinda like talking about adjusting your carburetor in a Harvard Square bookstore instead of in a sports bar.
, do you mean to tell me I
? And I can't go on
there, either? What's the point of having a Constitution if it's not going to give me any rights? So, fine, if I
. Scalia can't have any. Neither can you.
Originalism Wounded! Justice Scalia Wanted For Questioning
Yesterday, in Giles v. California , Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.
Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse. The words of the Constitution matter, he said in Giles , and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."
Giles is hard to explain to the average citizen, but it's principled.
Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home. As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.
More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.
On the Bright Side ...
But if you really do want to go hunting, Rosa, I hope your first kill is the deer that ran out in front of my truck in the Northern Virginia suburbs on Sunday!