The Assembly Committee on Judiciary and Ethics

The Wisconsin Assembly Committee on Judiciary and Ethics is holding a public hearing this morning at 10:30. Among the agenda items is a proposal to make Chief Justice an elected position (currently it's awarded by seniority).* As there are four conservative Republicans on the Supreme Court, which is composed of seven justices, it's obvious what the resolution's sponsors are up to. For some reason Republicans harbor an intense dislike for the present Chief Justice, Shirley Abrahamson, and would like to see her replaced.** Ironically, three of those four Republicans have had their problems pursuant to the conjunction of "judiciary" and "ethics." Justice Annette Ziegler was publicly reprimanded for violating ethics guidelines. Justice David Prosser is now the subject of a Wisconsin Judicial Commission investigation concerning allegations he was involved in a physical altercation with one of his colleagues. And then of course there is Mike Gableman, the poster boy for Wisconsin's code of judicial ethics, which Gableman believes unconstitutionally abridges his First Amendment right to defamation.

Here's hoping someone raises these issues at today's hearing.

The resolution's partisan sponsors are pretty much asking for it.

* Among the resolution's sponsors is Senator Leah Vukmir, who called Justice Sonia Sotomayor and former Justice David Souter "dim bulbs."

Most lawyers can only aspire to be so dim. Funny thing is, Justice Souter wrote a watershed opinion*** a few years ago, which Vukmir has most likely never even heard of, raising the bar for prospective civil plaintiffs. In other words, it acts as a heightened guarantee against the "frivolous suits" that Leah Vukmir et al are otherwise so fond of bellyaching over.

So you tell me who's the dim bulb in this array. It ain't David Souter.

** Probably because she's brilliant, and this necessarily offends them.

*** I understand citations to it broak teh Lexis-Nexis, as the kids say.

Scott Walker would regulate his own recall

Two fine accounts of Tuesday's disturbing committee hearing, which was chaired by State Senator Leah Vukmir, who is known primarily at this space for having declared former and current Justices of the United States Supreme Court David Souter and Sonia Sotomayor "dim bulbs."

Version the longer, by Rebecca Kemble

Version the shorter, by Steve Hanson

♫ Let the Eeeagle Scout soar . . . ♪

Wing-nut jurisprude goes off message

Supreme Court Justice Elena Kagan was in MKE tonight ...

Long after Obama is out of office we'll have to live with the intellectual lightweights he (Kohl and Feingold) appointed to the Supreme Court. Introducing Kagen ...

Can't even spell her name.

You know what's funny is the most articulate recommendation and support for Justice Kagan's nomination came from Miguel Estrada, who not too long ago was the wing-nut juridical hero par excellence.

And there is Justice Kagan chatting with Seventh Circuit Court of Appeals Chief Judge and legendary conservative constructionist Frank Easterbrook. Think he thinks Kagan is an "intellectual lightweight"?

Doubt it.

By the way, Wisconsin State Senator Leah Vukmir pronounced former Associate Justice David Souter "dim" and then Obama's other appointee to the Court, Justice Sonia Sotomayor, "even dimmer."

Perhaps a debate could be arranged. So, evidently these views are shared not just among anonymous online conservative Republicans but voiced and encouraged by their elected political leaders.

Good to know. Especially on July 12.

MJS edit board calls Patrick McIlheran "silly"

"Will the silliness end?" pleads the Milwaukee Journal-Sentinel, calling Donald Trump "pathetic" and "birther-in-chief." "The birthers will never accept Obama's legitimacy," say the board, and they're probably right. Meanwhile the J-S's unintentionally comic wing-nut calumnist Patrick McIlheran allowed Tuesday that he "f[e]ll in the 'probably' camp" where it came to Obama's U.S. natal provenance.

And in any event he was "exhausted" by all the talk of Obama's birthplace (it's Hawaii, have you heard). There, there, get your blankie and have a nice lie-down. Let's warm you up some milk.

Oh, but not too exhausted, apparently:*

Suppose, just for the sake of argument, that we come to learn that Obama really was born outside the United States. Suppose he were born in Kenya ...

Followed by some other typically phantasized nonsense.

Then of course the next day Obama finally decided he'd had enough and Patrick McIlheran just went about busying himself along his merry wing-nut way. He must have a pretty strong union steward.

* McIlheran's I'm-not-saying-Sonia-Sotomayor's-a-racist-but move.

eta: McIlheran flogged some more with another Bisphenol A editorial.

Milwaukee judge ponders Voting Rights Act

Item: Wisconsin felon disenfranchisement challenged

Here's one sympathetic ear:

It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s]." And it is equally plain that [New York Election Law] § 5-106 disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage.

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majority's "wealth of persuasive evidence" that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.

— Sonia Sotomayor

What self-respecting strict constructionist could take issue with that?

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006).

Ron Johnson's judicial heliology

[Ron Johnson] said he preferred justices who would strictly follow the Constitution in their rulings.

How would he know whether they were or not? Ron Johnson has admitted himself that he's barely even read the damn thing:

I will say, y'know, prior to doing this,* I've sat down and read the Constitution probably, thoroughly, three ... probably about five or six times. It is not an easy document to read. It is not, unless you study it in detail, it's hard to study. — Ron Johnson

Better:

[Ron Johnson] said he would have voted against both of President Obama's Supreme Court appointees, Sonia Sotomayor and Elena Kagan, as well as both appointees of President Clinton — Stephen Breyer and Ruth Bader Ginsburg.

I would like to hear why, in detail. Did the J-S think of asking? Is it not significant that the imaginary Senator Ron Johnson would have attempted to block four of the last six Supreme Court appointees?

No other Senator has done that, but only because Jesse Helms didn't live long enough. So here we have this Ron Johnson receiving the torch from Jesse Helms; by God, it's the North Carolina of the North.

Did the J-S ask Johnson about Harriet Miers? Does Johnson think she's a "strict constructionist"? What about Justice Scalia, are his constructions to the appropriate degree strict (a highly effective b.s.-detector question)? If they asked, they didn't print the answers.

Sunspots are behind climate change, Ron Johnson says

How can people actually read this stuff and not laugh out loud. Or else how can they write it with a straight face.

Senate candidate Ron Johnson maturing quickly

— Wisconsin State Journal, 08/01/10

* Answering Dick Morris's plea for a "rich guy from Wisconsin."

Posse comitatus in Jackson County, Wisconsin

Jill Sixpack explains the etymology and its resonance.

This week, Jackson County District Attorney Gerald Fox is pretending to be a constitutional scholar, claiming that the Supreme Court's recent decision in McDonald v. Chicago "immediately renders some of Wisconsin's current laws unconstitutional."

Maybe Mr. Fox is not briefing his cases as accurately as he might. The fact of the matter is, McDonald v. Chicago didn't render any current laws unconstitutional — let alone Wisconsin's — and that includes the Chicago and Oak Park, IL ordinances which instigated the lawsuits leading eventually to the Supreme Court's decision.

The Supreme Court's holding in McDonald is that the Second Amendment of the U.S. Constitution is incorporated in the Due Process Clause of the Fourteenth Amendment. This means only that from now on, State and local arms regulations are to be evaluated in the light of McDonald, which in turn directs lower courts for guidance to District of Columbia v. Heller, last year's decision of the U.S. Supreme Court that invalidated D.C. handgun restrictions, which were similar — but not identical — to Chicago's and Oak Park's.

McDonald v. Chicago's earlier incarnation is NRA v. Chicago (567 F. 3d 856), which was discussed below, here and here. Once again, that decision did not reach the question of whether or not the local ordinances were constitutional. All three judges on the 7th Circuit panel in NRA v. Chicago decided only that they possessed neither the judicial authority nor power to make that decision at all, which was true, at the time. Frank Easterbrook wrote it, for crying out loud.

(Citing Sonia Sotomayor for support, incidentally.)

And it's only that decision that the Supreme Court reversed. The Court didn't touch the question of the local ordinances' validity. The majority delivered that responsibility back to the circuit court and in turn, it will head down to the district court where it originated.

While the district court addressed directly the constitutionality of the ordinances initially, it's essential to take note that it wasn't the district trial court's nuts and bolts decision that was appealed to Sam Alito & Company but rather the decision of the 7th Circuit, itself an appellate decision substantively attenuated from the ordinances and revolving entirely on questions of political and constitutional theory.

And because they love the elitist Harvard egghead stuff, that's why the United States Supreme Court accepted review of the case, not to jigger around with some Midwest suburb's city council meeting.

If Mr. Fox believes his expressly identified set of affected Wisconsin statutes are unconstitutional by dint of McDonald, that's one thing.

But at least he could wait until the 7th Circuit courts (under whose federal jurisdiction Mr. Fox is, by the way) do what the Supreme Court ordered them to do, that is, reexamine the record in the light of this doctrinally historic and groundbreaking decision and then if they are thusly satisfied, invalidate the local gun ordinances.

Until that moment at least, it would certainly appear that District Attorney Fox is off on a bit of a procedural breakaway. Prosecutorial discretion, of course, but here is a touch of pushing the envelope.

Feingold on the sad state of advice and consent

Russ Feingold: I found [U.S. Supreme Court nominee Elena Kagan] more forthcoming in my meeting with her than the last three: Sotomayor, Alito, and Roberts. They're all real smart. But the other three — two different presidents and their staffs coached them to say nothing. And it really seemed to kind of make a joke out of the process. And I even had some direct words with [Kagan] about — because I thought she was more open than the others — there was a question or two, a private question about her views in the past and she said this and that and I said, 'Y'know, this is sad. You guys aren't even allowed to say what you really believe, because of this phony process.' It's dumbed down the thing to the point where at least it's good that the American people can see the person, we can ask them questions for a couple of days, but that's it. For life. And it really is sad that things have gotten this partisan and this difficult.

— Oshkosh Northwestern (editorial board video @ 6:10)

You can pose a question to Elena Kagan through Sen. Feingold here.

You still have the right to remain silent

But now you can't enforce it unless and until you violate it.

File under: Legal reasoning.

Judge Sonia Sotomayor: Court of appeals is where policy is made. And I know, and I know this is on tape and I should never say that 'cause we don't make law, I know [laughter]. Um, okay ... I know. I know. I'm not promoting it and and I'm not advocating it, I'm ... y'know [laughter].

Hey, remember how Sonia Sotomayor was raked over the coals by conservatives for articulating those blinding glimpses of the obvious? Think they'll point to Scalia & Friends' majority decision this morning in Berghuis v. Thompson and say, "Wow! Sotomayor was spot on!"

Yeah me neither.

Reince Priebus, lead stuntman

Jim Arndt reads a WISGOP press release so you don't have to:

The cookie-cutter introduction of "strictly interpret the Constitution instead of legislating from the bench" is probably in the response to Justice Sotomayor’s nomination.

Or culled from any random utterance of Michael Gableman.

John McAdams's school of scholarly scholarship

Indeed, given Sonia Sotomayor's liberal views, it would be odd if she were not a racist and sexist.

— John "La Raza" McAdams

Marquette University's own nutty professor John McAdams has concocted an hilariously incoherent attack against Prof. Jodi O'Brien, the Catholic scholar and would-be dean of academics whose job offer was rescinded by Marquette this week.

Marquette says O'Brien's writings contain negative statements about marriage and family, and yesterday canceled an interview with the Milwaukee Journal-Sentinel, "saying this was now a legal situation."

McAdams, on the other hand, is unbound by such circumspection.

McAdams claims to have reviewed "every single article" in O'Brien's bibliography and concludes mockingly that her area of expertise is in "victim studies," which is a vintage McAdams buffoonery in addition to being a crass political exercise in poisoning the well.

▪ Incidentally I'm sure Dr. O'Brien would find McAdams endlessly fascinating in her capacity as a clinical social scientist, and it's hoped he may appear in an anecdotal "vignette" in some future "victim study" (with McAdams standing for the victim archetype, of course).

Anyway, "every single article" that is, right up until the point where McAdams (or "we," as he refers Royally to himself) admits that he "lack[s] the stomach to extensively examine this kind of literature."

You see, he's also intellectually fearless, in the Jesuitical tradition.

So since he (they?) hasn't actually examined it to any substantive degree, McAdams instead charges that Prof. O'Brien's scholarship is "mediocre" because it hasn't appeared through what he calls "top-level" publishers, none of whom he cares to enumerate.

Which is amusing because of the three articles McAdams provides ("at random" from among dozens, he says: Yeah, right) one appears in Sexualities, a journal of Sage Publications, one is in an anthology put out by Routledge, a preeminent social sciences publisher of international renown, and the third is from the Seattle Journal for Social Justice, an imprint of the Seattle University School of Law.

That's McAdams's entire case: his (their?) admittedly groundless invective, oblivious that SU ranks among the top 100 law schools.

As for Marquette Law School, which is attached to the institution McAdams is fearlessly defending against Prof. O'Brien's "mediocre" scholarship, sadly, it's unranked: Tier 3. McAdams rarely fails to entertain (the reasons for which he's most likely completely unaware), but his own credibility is in almost tragically short supply.

McAdams might have been on to something had he been comparing The Botanical Review with High Times. Except he isn't, at all.

However, McAdams's special gift for unwittingly demolishing his own rigorously crafted arguments remains second to none, top-tier.

Finally, McAdams decides the O'Brien affair is an "embarrassment" to Marquette University. On that account, he sure as hell ain't helping.

Because believe it or not, he teaches political science there.

Photo illustration: I'm huntin' wascawwy wesbians.

Speaker collapses in fear of FFRF lawsuit

"Thank you Jesus, for your death."

*THUD*

Another victim of the secular progressive Kulturkampf and the Supreme Court's incoherent Establishment Clause jurisprudence.*

* [eta] As if on cue, and proving truth in sarcasm:

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion.

Had to take a shoe off to keep track of that.

("I didn't know we had so many justices," Rehnquist quipped.)

It's notable that Justice Sotomayor has aligned herself with Justice Stevens, the closest thing to a strict separationist since Hugo Black.

A wise Latina, indeed.

Salazar v. Buono (.pdf, 71 pgs.)

Joe the Plumber, McIlheran share highest awards

AFP will honor SE Wisconsin's Edward R. Murrow of hyperlinking

To the Milwaukee Journal-Sentinel's political calumnist and perennial laughingstock Patrick McIlheran, goes a Teabag Pulitzer.

Sadly, Mr. McIlheran was passed over for the Nobel Prize in Dendrochronology. McIlheran is to receive his distinguished award from a fellow constitutional scholar, Wisconsin State lawmaker Leah Vukmir, who famously pronounced United States Supreme Court Justice Sonia Sotomayor even dimmer than David Souter.*

Patrick McIlheran, a.k.a. "Mr. Science," is the gold standard bearer for the conservative Republican intelligentsia in Milwaukee.

Earlier: Plumber don't owe John McCain sheeit.

* If this is dim, then I don't want to be smart.

Sen. David Vitter: Still a thoroughgoing creep

Not every senator was charmed by Sotomayor. The day she broke her ankle, she kept an appointment with Senator David Vitter, a Republican from Louisiana. Vitter, Sotomayor later told a friend, was unwelcoming. As they were finishing their meeting, Vitter said, "I want to ask you—do you think if I was you, and I had made the wise-Latina comment that you made, that I would have deserved to be a Supreme Court Justice?"

Sotomayor replied, "If you had my record, yes."

From Lauren Collins's comprehensive profile of Sonia Sotomayor in the current New Yorker. Remember family values Republican David Vitter; he had an illicit relationship with Deborah Jeane Palfrey. Palfrey was found hanged in a storage shed behind her mother's mobile home, whereas David Vitter is still a United States Senator.

So he may or may not have learned something about justice.

Leah Vukmir, dope genius

"Shrill, uncompromising, ideological, and personally unpleasant."

— Milwaukee Magazine

Wisconsin lawmaker Leah Vukmir (R-Gilles Custard Stand), who is by her own admission smarter than U.S. Supreme Court Justices David Souter and Sonia Sotomayor combined, opposes efforts to make cannabis available to terminal cancer patients because it's "a ruse":

I think what I resent most is this facade that you are putting forth, using people who are dying of cancer or who have other illnesses as your shield. I think it's nothing more than a ruse for you to move towards full legalization of marihuana.

The bill, said the legislator, "is part of a secret plot to legalize recreational marihuana." Which she personally resents. The most.

Of course this is exactly the sort of nonsense one expects from conservative Republicans, but Vukmir is also a registered nurse.

In a letter to the Milwaukee Journal-Sentinel, the Commander of the Waukesha County Metropolitan Drug Unit agreed with Rep. Vukmir, and claimed the devil weed "is a marginal painkiller at best."

Remove all the unsubstantiated qualifiers and you're left with "painkiller," which is what Nurse Vukmir prefers to deny terminal cancer patients, based on her own personal resentments.

'Sanction not this palliative, on account of these idiosyncratic political phantasies that I harbor,' Vukmir is in essence saying.

Last night I happened across a teevee commercial for Cymbalta, a drug for clinical depression, which is debilitating for many people, but is not quite terminal cancer.

Severe liver problems, sometimes fatal, have been reported.

So there is one legal pharmaceutical that can kill you — even in prescribed doses — whereas the main side effect of marijuana is said to be a heightened awareness of the Ren & Stimpy soundtrack.

And now the paranoiac ravings of Leah Vukmir, who has scheduled no hearings on the hepatic mortifications of Cymbalta nor any other considerably more dangerous yet currently legally available drugs.

On the other hand, Rep. Vukmir believes terminal cancer patients have a constitutional right to keep and bear submachine guns and surface-to-air missiles up and down the Avenues of Manhattan.

But they must not be allowed to smoke a joint to help alleviate their suffering. Who said compassionate conservatism went out with Bush.

Or that elected Republicans are devoted to liberty.

It's not just the New York Times

Even the simplest of things are beyond them. In their coverage of the U.S. Supreme Court opinion in Mohawk Industries v. Carpenter, they report that Justice Sotomayor's first opinion drew a "testy concurrence" from Justice Thomas despite "methodical reasoning and a formal writing style."

Had the author, Adam Liptak, actually read the concurrence, he'd have seen that Justice Thomas was actually criticizing the majority opinion from a case decided 60 years ago, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

That's a good one, though.

— David Ziemer, Federalist 86.

They can't both be right*

Said Wisconsin Attorney General J.B. Van Hollen:

Last year, after [being] granted permission by the State Assembly, I filed an amicus brief in the landmark case of District of Columbia v. Heller. This case recognized the rights guaranteed under the Second Amendment. However, the case revolved around the actions of the government of the District of Columbia, a federal entity. The Supreme Court did not decide on whether this right would apply to states and local governments.

But, said Jefferson County Circuit Judge Randy Koschnick:

Sotomayor’s position is to the left of even the activist Federal Ninth Circuit Court of Appeals in San Francisco, which concedes, albeit reluctantly, that Heller prohibits both state and federal interference with the gun rights of law-abiding citizens.

There are other arguments for merit selection as well.

Federalism is an older and more deeply rooted tradition than is the right to carry any particular kind of weapon.

— Seventh Circuit Chief Judge Frank Easterbrook

Meaning: An individual State's power to regulate firearms is constitutionally a weightier concern than is the federal government's historically more recent interest in interfering with that power. Judge Easterbrook's views are probably too conservative for conservatives.

By which I mean situationally inconvenient to their liberalism.

And, based on the foaming orgy of Republicans bellowing "Trial lawyers! Trial lawyers!" last night in the House of Representatives, I wouldn't expect conservatives to start calling for the incorporation of the 7th Amendment's guarantee of civil jury trials any time soon.

Although they would more than likely approve a twenty-dollar cap on medical malpractice damages: "original intention" and all that.

(Incidentally, don't those impertinent Republican bellowers understand that criminal prosecutors are trial lawyers too?)

* Van Hollen is right.

Wrong wing-guy

Poor old Patrick McIlheran, the Milwaukee Journal-Sentinel calumnist who still can't come to grips with the free market's invisible hands throttling his hero Rush Limbaugh. Fine. But why does he have to lie?

Didn't like the way Sonia Sotomayor said Latinas just made better judges than white guys? Then you're a racist.

Except that isn't what she said and, to her credit, she never backed away from what she did say. But Sotomayor did acknowledge that axe-grinding hacks like Patrick McIlheran may have misunderstood.

Subtlety and mindfulness of context not being among your garden-variety conservative Republican calumnist's strongest suits.

Blatant hypocrisy is, however. Exhibit A: Witness McIlheran's complaints that Limbaugh was pilloried for things he never uttered.

Moreover, contrary to Patrick McIlheran's revisionist victimology, it was Rush Limbaugh who loudly condemned Sotomayor as a racist.

And for this they laid off Tom Strini?

Told you so, say conservatives

Sotomayor tries to keep the government from killing a guy.

But, no such luck. Nobody bothered to ask Justice Scalia whether the guy was innocent or not, because Justice Scalia just doesn't care.*

Anyway, if you really need to kill somebody, don't do it in Ohio.

* He won't even listen to Joe Ratzinger, either.

On Sotomayor: Koschnick's non-sense

Part Two of Three

Jefferson County Circuit Judge Randy Koschnick has some very harsh words for U.S. Supreme Court nominee Sonia Sotomayor.

Not only are they harsh, but they're flat wrong. They're also comically uninformed and, ultimately, alarmingly irresponsible coming from a professional judge, one who notably declared himself "more qualified" to sit on the Wisconsin Supreme Court than is its Chief Justice.

Of course Koschnick is simply pandering to a certain right-wing political constituency and he's entitled to his personal views, but at least he might actually read the opinions upon which he pontificates.

More importantly for a judge, he should find out whether they're even good law before celebrating them. Or using his odd misapprehensions of those cases to unprofessionally slag Judge Sotomayor.

On a favorite topic, guns, Koschnick alleges that a recent per curiam opinion of the Second Circuit Court of Appeals in which Judge Sotomayor participated "reveals [Sotomayor's] unabashed, open hostility to the Constitutional rights of gun owners."

This is pure, unsupported fantasy, which apparently purports to derive from the Second Amendment case law. Here, Koschnick takes a run at constitutional scholarship:

Despite the unequivocal holding by the United States Supreme Court in [District of Columbia v. Heller] that the Second Amendment actually does guarantee individuals the right to bear arms, in the 2009 case of Maloney v. Cuomo, Judge Sotomayor ruled that state governments do not have to abide by the Second Amendment.

First off, the non sequitur.

Whether the Second Amendment guarantees an individual right — as opposed to a collective one: see Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) — is a separate question from whether it restricts State and local governments.

Thus, Koschnick's reasoning does not follow.

That Heller ruled the 2A protects an individual right has nothing to do with its application to the States, or what the courts call "incorporation." Heller is about gun laws in D.C., a federal enclave, and it did not even engage the question of whether the States have to abide by it — apart from explicitly mentioning that they don't.

It says so right in its famed footnote 23, where Justice Scalia, discussing some earlier Supreme Court decisions, points out two things: 1) that incorporation is a question not addressed in Heller and 2) that "our later decisions ... reaffirmed that the Second Amendment applies only to the Federal Government."

"Only to the Federal Government" = "Not to the States."

But wait, it gets better, much better:

Sotomayor’s position is to the left of even the activist Federal Ninth Circuit Court of Appeals in San Francisco, which concedes, albeit reluctantly, that Heller prohibits both state and federal interference with the gun rights of law-abiding citizens.

This is an astonishing misreading of both Heller and the referenced Ninth Circuit decision, Nordyke v. King.

Look carefully at what Koschnick is saying: that Nordyke concluded the Second Amendment applies to the States because Heller said so. But that is false. Here is what Nordyke says (correctly) about Heller:

[W]e must decide whether the Second Amendment applies to the states through the Fourteenth [Amendment], a question that Heller explicitly left open.

"Explicitly left open," as in: "Heller did not answer that question." Yet Koschnick confidently informs us that Heller "prohibits State interference" with Second Amendment rights.

It most certainly does not.

The Nordyke court relied on Heller primarily for its recitation and portrayal of historical sources (without — significantly — devoting any effort at direct inspection of the sources and their respective contexts themselves), not Heller's legal holdings.

Indeed, the Ninth Circuit came to its legal conclusion that the Second Amendment applies to the States independently of Heller.*

Not only that, but the holding in Nordyke, which was decided in April by a three-judge panel, has been a legal nullity since the Ninth Circuit granted en banc review of the panel's decision on July 29, nearly a week before Koschnick's celebration of it appeared.

That is, Nordyke isn't the law even within the Ninth Circuit anymore, according to that very court:

The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

And it may well be overruled, as it's unprecedented for a court other than the Supreme Court to declare a provision of the Bill of Rights incorporated against the States. In that sense, Nordyke might fairly be characterized an "activist" decision.

Which brings us back to Sonia Sotomayor's opinion in Maloney v. Cuomo. In that case, Sotomayor declined to overstep the authority of the Supreme Court on the question of incorporation. And for this Koschnick labels her an "unapologetically liberal activist."

Except Maloney is an example of the very antithesis of "activism." Rather, it's a prime example of what the Constitution calls an "inferior court" deferring to the authority of a higher one. Thus, in deriding Maloney, Koschnick is effectively complaining that Sonia Sotomayor is not enough of an "activist" for his tastes.

Then there is the Seventh Circuit Court of Appeals, which faced the same question in June. Frank Easterbrook, acknowledged as one of the most conservative jurisprudes in the country, also adopted Sotomayor's position (along with two other conservative Republican judges). He even wrote, approvingly, "We agree with Maloney."

Koschnick, predictably, ignores the Seventh Circuit, even though one of the States within its jurisdiction, Wisconsin, is where he works.

Instead, he prefers to cite the case from California, Nordyke, despite its precedential value having been rendered void during the month prior to his declaring its enduring wisdom.

And he misrepresented the United States Supreme Court decision upon which he claims (erroneously) Nordyke relied.

Simply amazing.

Evidently it's appropriate and acceptable for a judge to pull that in an online right-wing echo chamber, but if a lawyer pulled something like it in a judge's courtroom, there'd be hell to pay for lack of candor.

* Nevertheless, Nordyke further concluded that the California gun regulation at issue was not in violation of the Second Amendment.

Perhaps that gang of crazy, wild-eyed, unapologetically liberal activists in San Francisco needed to incorporate the Second Amendment for the sole purpose of upholding another tyrannical State infringement on Randy Koschnick's constitutional rights.

I wouldn't put it past them!

Next: The ex-president and the Chief Justice