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

No Second Amendment rights for Wisconsin

In a terse and somewhat perfunctory decision yesterday, the Seventh Circuit Court of Appeals in Chicago rebuffed the National Rifle Association's offer to make the Second Amendment applicable to the States of Illinois, Indiana, and Wisconsin.

Perhaps most relevant to the current political situation, the court explicitly agreed with January's per curiam decision of a Second Circuit panel in New York that included Judge Sonia Sotomayor.

Many conservative commentators had criticized Judge Sotomayor for the latter opinion, claiming the Second Circuit shouldn't have relied on ancient 19th century case law in the wake of the U.S. Supreme Court's oracular divination last June in D.C. v. Heller, that the Second Amendment protects an individual right to self defense and by extension the right to keep handguns in one's home.

(The Heller majority managed that by pretending the Second Amendment was written in Hebrew, and read it from right to left.)

But the District of Columbia is a federal enclave and not a State, and Heller expressly declined to overrule the 19th century cases at issue.

And, the Seventh Circuit observed, even though much of the reasoning contained in those decisions had been gutted in the meantime, their ultimate holdings have never been disturbed.

Only the Supreme Court, the Seventh Circuit reasoned, has the authority to topple those holdings, despite the fact they may teeter on a destroyed foundation. The federal circuit courts of appeal are, after all, the "inferior courts," according to the Constitution.

More germane to the political critiques of Sotomayor, yesterday's opinion was authored by Judge Frank Easterbrook, who is positively Scaliaesque in his conservatism. He was joined by the libertarian lion Richard Posner* and William J. Bauer, another Republican appointee.

Incorporation

As almost everyone knows, the Bill of Rights, which comprises the first eight Amendments to the U.S. Constitution, begins with the words, "Congress shall make no law." In 1833, the U.S. Supreme Court affirmed that the Bill of Rights did not restrict the actions of State governments.

Then in 1868, the 14th Amendment was ratified:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ...

While a compelling historical argument** has been made that the Framers of the 14th Amendment intended to make the Bill of Rights apply against State governments in addition to Congress, it doesn't explicitly say so, and the question has become one of the great controversies in constitutional law. Maybe the greatest.

Attempts to make the Bill of Rights apply to the States through the Privileges or Immunities Clause failed in the Slaughter-House Cases of 1873, and those arguments have been mostly a dead letter since then — until recently, that is, in the hands of gun enthusiasts.

In the meantime, the U.S. Supreme Court began to "selectively incorporate" Bill of Rights provisions starting in the 1920s with some freedom of speech cases based on reasoning derived from the Due Process Clause of the 14th Amendment.

For example, the entire First Amendment now binds State and local governments along with Congress.

Within the Court itself, a debate raged as to whether the Bill of Rights should be incorporated piecemeal, or else all in one fell swoop, the "total incorporation" position often argued in dissent by Justice Hugo Black. Black never succeeded in convincing a majority of the Court, so the provisions have been incorporated one at a time.

Last month the NRA invited the Seventh Circuit to incorporate the Second Amendment either through the Privileges or Immunities Clause or the Due Process Clause. Yesterday Judge Easterbrook & Co. refused to do either, and the City of Chicago and its suburban Village of Oak Park may continue to ban handguns within their jurisdictions, untouched by the Second Amendment's restrictions.

(Wisconsinites, of course, are protected by the State constitution, but they may not, according to the Seventh Circuit, claim Second Amendment rights against the State or local municipalities.)

Deeply rooted

Judge Easterbrook made a number of other interesting statements in response to D.C. v. Heller, the Supreme Court case which dealt extensively with the question of whether the right to keep and bear arms was "deeply rooted in this nation's history and tradition."

In support of the proposition that it is, both the Heller plaintiffs and the NRA attorneys had appealed to the writings of William Blackstone, the 18th century deity of English common law greatly admired and followed by many of this country's lawyer-founders.

While the Supreme Court had accepted the Blackstone pedigree, the Seventh Circuit did not, rejecting Blackstone because he was "discussing the law of another nation" and because Blackstone's commentaries were of general political privileges rather than the specific constitutional rights under consideration in the NRA's case. In fact, England doesn't even have a written constitution.

As for the question of local as opposed to federal control over the possession of firearms (as well as other rights), Easterbrook declared that "the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule."

And he went further still, certainly further than Judge Sotomayor had:

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

Now that is going to generate some controversy, if not hysteria. It may even be the topic of an entire Federalist Society symposium.

* Also a harsh critic of the Supreme Court's decision in D.C. v. Heller.

** Prof. Akhil Reed Amar, who is cited approvingly by Judge Easterbrook, accepts it as not just compelling, but definitive.

The Volokh Conspiracy Theorists

How endearingly assiduous are Second Circuit Judge Sonia Sotomayor's conservative critics? Here's an amusing example.

National Review Online contributor David Kopel, jumping the gun (so to speak) at the highfalutin weapon nut site, the Volokh Conspiracy:

[Judges Sotomayor et al.] seriously misconstrue the Second Amendment itself, when they write:* "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution.**

Seriously. Devastating. If true. But then:

UPDATE: Oren's post, above, accurately points out that Heller itself uses the word "confer," so even though the word is inconsistent with Heller's own explication of the right to arms as a pre-existing right, the Maloney opinion can't be faulted for using the same word.

That is, the beloved Heller is inconsistent with Heller.

Hey, he tried.

* In Maloney v. Cuomo.

** Notice Kopel admits that it isn't actually in the Constitution.

D.C. v. Heller changed everything

Which is to say, nothing:

This appeal presents a single issue, whether Defendant Michael Marzzarella's conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms. We* hold it does not and accordingly will affirm the conviction.

[W]e begin with Heller ...

Third Circuit: United States v. Marzzarella (.pdf; 35 pgs.).

This identical question has come up here before, in the context of our top local right-wing conservative firearms experts. I think that Heller and its recent companion, McDonald v. Chicago, should be of greater import to historians and political theorists than to gun buffs.

* Two Reagans and a G.W. Bush, for the record. It's amazing there are still any guns left after Obama and Elena Kagan seized them all.

Thank Heaven for Russ Feingold.

Thank you, Chief Judge Frank Easterbrook

Top conservative at the Seventh Circuit Court of Appeals:

We do not think it profitable to parse these passages of Heller as if they contained an answer to the question whether [a particular statute] is valid. They are precautionary language. Instead of resolving questions such as the one we must confront, the Justices have told us that the matters have been left open. The language we have quoted warns readers not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open. [Heller] is not a comprehensive code; it is just an explanation for the Court's disposition. Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration. — United States v. Skoien (.pdf; 38 pgs.).

Almost exactly as I had said.

h/t Michael O'Hear.

McIlheran exercises individual right

To keep and bear silliness:

Except that individual right, of course.

David Souter is a "fierce defender" of, well, some constitutional rights. And pointedly not others.

Of course? Pointedly? Italics? Sounds conclusive!

Except in District of Columbia v. Heller, the United States Supreme Court unanimously resolved the "individual vs. collective right" controversy by affirming the former. Including Justice David Souter.

So, yes, David Souter has indeed interpreted and defended the Second Amendment as a protection of the rights of individuals.

But I should expect one to have initially located a particular constitutional right before such time as that person might be reasonably criticized for not fiercely defending that same right, no?

What does this other crazy liberal activist have to say:

The text of the [Second] Amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the Amendment could even be thought to require that members of State militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness.

Obama?? Is that you?!

In Kennedy v. Louisiana, a decision handed down shortly before Heller, the Supreme Court held that to execute a person who rapes a child but does not kill her violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. That was a loose construction that tied the hands of the States and the federal government, and Scalia and the other conservative justices dissented. But in Heller it was the liberal justices who were dissenting from a decision that ties the hands of the federal government, and of the States, too, if the Supreme Court decides that the Second Amendment constrains State as well as federal government action.*

Richard Posner, noting how these things can work both ways.

Incidentally, has McIlheran ever printed a correction?

Better, why not simply say what he meant: 'I think I disagree with Justice Souter's joining in Justice Stevens's exhaustive historical analysis of the Framers' understanding, mostly because they clearly got the better of that guy who I just know is always correct, Scalia.'

Even though Scalia had to pretend the Second Amendment was written in Hebrew and read it from right to left to get there.

* The Ninth Circuit has since determined that the 2A does constrain State action (at least those States within the Ninth Circuit).

A Volokh preemption

Before one or more of the Volokh conspiracists tee(s) off on Judge Sonia Sotomayor's testimony this morning that she couldn't recall a decision of the courts that held self-defense to be a constitutional right — the said teeing off seeming inevitable, although it may now be too late — it's worth pointing out that D.C. v. Heller did not.

The closest Heller came to doing so was this:

That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.

In other words, Heller teaches that self-defense is a purpose protected by the rights contained in the Second Amendment, but not that self-defense is in and of itself a constitutional right.

Notably, even Justice Scalia declines to apply a determinative exercise in necromancy to the cerebral cortexes of the Framers.

And, as Judge Frank Easterbrook reminded us recently, inherent or "political" rights are not the same as constitutional ones.

In fact right here in Wisconsin, we've encountered these crucial distinctions among purposes and between purposes and rights:

Koschnick completes rejection of coherence — 04/06/09

Best of the Right-Wing Reactionaries

It just wouldn't be Saturday night without yet another howler courtesy of the Milwaukee Journal-Sentinel's "Best of the Wisconsin Blogs."

This week's "best blogger" claims that D.C. v. Heller, the U.S. Supreme Court's big gun case, was decided "5-4 in favor of the individual right to bear arms."

One wonders how a best blogger could make such a rookie mistake, since the four dissenting Justices also agreed that

The question presented by this case is not whether the Second Amendment protects a "collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

In fact that is the opening paragraph of the lead dissent and is reiterated even more clearly in Justice Breyer's dissent:

The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.

So, first of all, collective vs. individual right was not at issue and secondly, had it been, the result was 9-0. And even then, only within federal jurisdiction. And then only in your home.

In hopes of overcoming his initial gaffe, the best blogger continues:

My favorite quote so far:

"In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority 'would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.'"

Except, of course, the part where they passed the 2nd Amendment as part of the Bill of Rights.

Nope, just more gaffes. And that is the entire "Best of the Wisconsin Blogs" blog entry, by the way.

No self-respecting, self-described political blogger would ever rely on the Associated Press for the substance of court opinions, so is it any wonder that a newspaper editor would find professional and maybe even personal vindication that some clown in the "new media" had so relied, and wished to congratulate him on suitably irrational grounds. These days, the opinion appears online before the news report, so there's not even any need to rely on the latter.

Not only that, but despite the AP editor's period within the quotation marks, it's only half a sentence, which is one of the myriad reasons for not relying on Associated Press reports of court opinions. Here, the AP actually cut an entire sentence, and thereby its meaning, in half. That's bad enough, but to see a blogger enshrined — by newspaper editors, no less — to "Wisconsin Best" status simply for mindlessly duplicating deliberately negligent journalism and attaching an allegedly droll yet ultimately irrelevant one-line quip is ludicrous.

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

As it turns out, Justice Stevens was talking about something quite different than Wisconsin's best blogger understands. And, like many conservatives, he seeks to ignore what the Court calls the Second Amendment's prefatory clause, the one that refers to a well regulated militia, never mind even the majority's acknowledgment that militia use of arms is different than civilian use, whereas the Second Amendment describes only regulation of the militia.

The choice to which Justice Stevens refers is not whether elected officials may regulate civilian use of arms — they certainly may — but whether the Framers meant to leave it to the courts to define the policy contours of the contemplated regulations. Even the majority recognizes that the right to keep and bear arms is not absolute, and is therefore subject to some regulation.

Normally, conservatives would side with Justice Stevens's admonishment of the majority for interfering unwarrantedly in the political process, but apparently this principle may itself be quickly abandoned for expedient political purposes. Or even just dimwitted ones.

Justice Stevens offers as illustration in a footnote a comparison between the Court's active involvement in federal election districting cases, another area one might imagine to be the exclusive preserve of the political branches of federal government. But whereas the political branches were "manifestly unable" to solve the districting problem, "no one has suggested that the political process is not working exactly as it should in mediating the debate between the advocates and opponents of gun control."

Indeed, Heller was entirely a controversy of judicial manufacture in the first place. The Cato Institute hand selected six potential plaintiffs and threw them into federal court. One, Richard Heller, stuck. And only on appeal, at that, having been initially dismissed along with the other five for failing to successfully argue standing.

But ultimately, and most importantly, Justice Stevens at the conclusion of his dissent is expressly addressing two specific and related claims alleged by the majority, that

“the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests” by the Second Amendment.

and that

a [legislative] policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.”

To be sure, Stevens isn't talking about whether the individual right to keep and bear arms is "off the table," he is criticizing the majority for defining the contours of acceptable legislative policy, and declaring as if by fiat the limits of those contours, despite no indication of the Court's constitutional power to make such determinations.

These are sentiments occasionally guaranteed to warm the so-called judicial conservative's heart. In fact they are the precise lines of argument conservatives adopt to criticize judicial results they don't personally care for, whether they understand — or have even read — the decisions themselves. All of which is simply more evidence that accusations of "judicial activism" emanating from political conservatives are essentially a hollow partisan farce.

Seriously, Milwaukee Journal-Sentinel, this is hardly the best Wisconsin bloggers have to offer. At least spend five minutes investigating the context of what you're memorializing.

Leading WI blogger fails U.S. Constitution

Writes one of Wisconsin's leading conservative bloggers:

"Chicago’s gun ordinance was not invalidated by the [Heller] decision. Three prior Supreme Court decisions have found that the Second Amendment does not apply to states and municipalities," [Chicago City Corporation Counsel Mara] Georges said. "The decision did not change that case law."

Consider the utter absurdity of the statement that I bolded. Replace "Second Amendment" with any other amendment and the statement is lunacy.

There's nothing absurd about it; Counselor Georges is correct. The Second Amendment is not incorporated against the States. Neither is the Third, nor the civil jury trial provision of the Seventh.

However, if one did replace "Second Amendment" with "First Amendment," then Mara Georges's claim would be false, as each provision of the First Amendment has been incorporated, one by one, case by case ("selective" incorporation).

The adverse party in Heller was the District of Columbia, which is a federal entity, not a State.

Wisconsin's leading conservative blogger continues:

Can you imagine if the cops walked into my house without a warrant and without my permission and just said, "oh, the Fourth Amendment? It doesn’t apply to West Bend."

The Warrants provision of the Fourth Amendment has been incorporated, so yes, it does apply to Wisconsin and by extension, Wisconsin municipalities, including even West Bend.

It goes on:

Or if Wisconsin decided to forbid women from voting under the reasoning that the Nineteenth Amendment doesn’t apply here.

The Nineteenth Amendment has nothing to do with it, as it expressly applies to both federal and State governments. The Bill of Rights is incorporated through the Due Process Clause of the Fourteenth Amendment. The theory entails that that Due Process Clause mimics the effects of the Due Process Clause of the Fifth Amendment.

It's fairly clear to most observers that the Framers of the Constitution did not originally intend the Bill of Rights to apply to the several States. At least, it was pretty clear to Chief Justice John Marshall.

The "total" incorporation argument that the Fourteenth Amendment automatically incorporates all of the Bill of Rights provisions, energetically championed by Justice Hugo Black, never convinced a majority of the U.S. Supreme Court.

And at least one sitting Justice, Clarence Thomas, may disfavor the whole idea of incorporation. In fact, he once wrote a lone concurring opinion* calling for the dis-incorporation of the Establishment Clause of the First Amendment. (As for the incorporation of the Free Exercise Clause, Thomas has written that he "can accept" it.)

That opinion was a bit of "judicial activism," incidentally, because the Court hadn't even been asked to address that question. Indeed, the Court didn't even reach the question it had been asked to address, because the plaintiff was deemed to have lacked standing to simply ask that question in the first place.

Still more leading blogging:

It’s ridiculous, which is why Chicago is going to spend a lot of money of lawyers [sic] to lose their case.

For an added comedy bonus, the above indented commentary is labeled, "Chicago to Continue to Ignore the Constitution." And what's ridiculous is that this person is taken seriously by a lot of people.**

But, thankfully, not by this one.

* He's actually concurring with another concurring opinion, but only that part of the other concurring opinion which is dissenting.

** Okay, only by Charlie Sykes and a few others. But still.

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.

Scalia: Activist, illegitimate

An amusing item in the New York Times today about some criticism of the U.S. Supreme Court's recent Second Amendment decision:

Two prominent federal appeals court judges say that Justice Antonin Scalia's majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned, and fueled by politics rather than principle.

Seventh Circuit Court of Appeals Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions "was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade."

That's exactly what Justice John Paul Stevens said.

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.

Ron Johnson requires you to license your guns

And submit to government-mandated functionality testing in order to receive the benevolent granting of those licenses' annual renewal:

Like we license cars and stuff. I don't have a real problem in minimal licensing and stuff. I mean, I don't.

— Republican candidate Ron Johnson, June 11, 2010

So it comes as a bit of a surprise to read Ron Johnson's blog post essentially accusing Senator Russ Feingold of dishonesty for his Second Amendment positions. But thanks to Russ Feingold, Ron Johnson's licensing proposals are probably unconstitutional.

While Ron Johnson was just another multi-millionaire from Wisconsin lolling on his divan hypnotized by Bill O'Reilly and Dick Morris's snow jobs, Russ Feingold was affixing his name to Texas Senator Kay Bailey Hutchison's amicus brief in McDonald v. City of Chicago.

Senator Feingold and the others filed the brief with the U.S. Supreme Court to urge the Justices to make their holding in a prior decision, D.C. v. Heller, applicable to all State and local governments. The Court agreed with Feingold, and cited the brief numerous times during the course of its majority opinion, authored by Samuel Alito.

Ron Johnson, for reasons best understood by only he and his crack team of legal researchers, apparently finds that incongruous because Russ Feingold opposed the confirmation of Justice Alito in 2006.

Gun buffs

Except Russ Feingold's opposition to the confirmation of Samuel Alito had nothing to do with the Second Amendment. As a career conservative Republican, Alito could certainly be depended upon to sympathize with the attitudes prevailing among Larry Pratt, Wayne LaPierre, and the rest of the nationally prominent gun buffs.

Rather, Feingold's opposition had to do with Alito's record of support for unilateral executive encroachments on the individual liberties enshrined in the Bill of Rights, specifically, the Fourth Amendment.

For but one example, substantive questions raised by Alito's celebrated dissenting opinion as a Third Circuit Court of Appeals judge in the 2004 case of Doe v. Groody, in which Alito defended the strip-search of a ten-year-old girl in her home, even though the executive authorities' warrant did not "particularly describ[e] the place to be searched," as the U.S. Constitution requires.*

Nor had Feingold's opposition to Alito's nomination anything to do with the then-president. Had Johnson been paying attention to someone other than Fox lawyers Megyn Kelly and Andrew Napolitano, he would have known that Senator Feingold was similarly vigilant throughout the Clinton era, and remains so during the Obama years.

Intrepid

If candidate for Senate Ron Johnson really is as devoted to "freedoms" as he claims he is, his attentions should be in perfect consonance with Senator Feingold's principled defense of individual constitutional protections as against any broadening of executive branch power over the liberties guaranteed by the Bill of Rights.

And perhaps some intrepid reporter might ask candidate Johnson why he's so cool with subsuming the right to keep and bear arms — which Senator Feingold recently succeeded at incorporating into the Due Process Clause of the Fourteenth Amendment — within a DMV-like regime of state approval and registration. At the least, it will give the GOP candidate an opportunity to perform another about-face.

* The majority opinion was written not by some wild-eyed Warren Court devotee, but by Michael Chertoff, appointed to the Third Circuit by George W. Bush (with Sen. Feingold's advice and consent) and later named to head up the Department of Homeland Security.

Bob Barr, liberal moonbat

Former Georgia Congressman and current presidential candidate Bob Barr, writing on the op-ed page of the Wall Street Journal yesterday:

Yet even as Republicans [like John McCain] support and defend the Second Amendment, they ignore the Constitution when it says that only Congress can suspend habeas corpus, and then only in event of an invasion or rebellion.

The latter reference is to Boumediene v. Bush, which McCain called "one of the worst decisions in the history of the country." The former is to D.C. v. Heller, which McCain hailed. Bob Barr's point — and it's a fair one — is that lauding one and decrying the other is inconsistent with a more strictly textual reading of the Constitution.

And if a president says we are "at war," Republicans believe he can ignore laws passed by Congress.

Mr. McCain has endorsed, in action if not rhetoric, the theory of the "unitary executive," which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.

If you didn't know that was a WSJ op-ed authored by Bob Barr, you'd almost swear it was an ACLU press release.

Scalia to come out guns a-blazin'

According to SCOTUSblog's Tom Goldstein, who hazards that Justice Antonin Scalia will be the author of the U.S. Supreme Court's much anticipated Second Amendment ruling, D.C. v. Heller.

Sheriff Scalia is expected to come barreling through the swingin' doors this week, with Deputy Anthony Kennedy riding shotgun.

Keep an eye on the dissent(s) to see who blames Scalia for "almost certainly caus[ing] more Americans to be killed."

Another Volokh conspiracist

Some time ago, after I'd obtained my law degree, I had lunch with one of my professors, who I kept calling, "Professor."

"Will you please stop calling me 'Professor,'" he said. "We're colleagues now." "I can't help it," I replied, "I have too much respect for the legal academy's knowledge, wisdom, and objectivity."

"Well then," said he, "obviously you haven't met enough of us."

This time around, meet Prof. Randy Barnett:

One of the things we hope to learn during confirmation hearings is a nominee's approach to the constitutional protection of liberty. But in her exchange with Sen. Orrin Hatch (R-Utah) about the second amendment and its potential application to the states, Sonia Sotomayor revealed remarkably little about her understanding of how the Supreme Court protects liberty under the fourteenth amendment. For example, more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental.

I was paying particular attention to Judge Sotomayor's Second Amendment exchange with Orrin Hatch, and have written about these questions here before on several occasions.

It's true that in constitutional law, provisions of the federal Bill of Rights are deemed to apply to State and local governments — incorporated — after a finding that they are "fundamental."

That's the process, in chronological order.

By the same token, once rights have been incorporated, there's nothing wrong with saying they're fundamental, in the constitutional sense. But that's not the same as claiming that rights become fundamental by dint of their incorporation.

What Prof. Barnett is charging is that Sotomayor thinks rights are fundamental only because they've been incorporated.

During the opening moments of her exchange with Senator Hatch, Judge Sotomayor responded:

It's not that I considered [the right to keep and bear arms] unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the State.

"Fundamental, so as to be incorporated." Exactly right. In fact, I can't think of a way to put it any more succinctly.

Sotomayor is referring to her decision in Maloney v. Cuomo and with "Supreme Court" she's referencing D.C. v. Heller. Seems pretty clear to me, that finding the right to be fundamental precedes a determination of incorporation, which is what Sotomayor said.

Prof. Barnett's proffered "evidence" for his allegation:

Here is her characterization of a "fundamental right":

SOTOMAYOR: Those rights have been incorporated against the States. The States must comply with them. So in — to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are — they have been deemed fundamental, as that term is understood legally.

And by "evidence" I mean, of course, "zero evidence."

[Edited to add, 07/16/09: Later in the hearings, presented with the same line of questioning, Judge Sotomayor said, "Fundamental, hence incorporated." So she did come up with an even more succinct means of expressing the procedural chronology after all.]

These folks are really clutching at straws here. But the worst offender continues to be Senator Jefferson Beauregard Sessions III, who has been bandying the expression "fundamental right" against Judge Sotomayor without any context whatsoever, in an attempt to make it look like she is opposed to the right to keep and bear arms.

There's no evidence of that either. In her Second Amendment rulings, Judge Sotomayor has carefully followed the precedent within the Second Circuit, which in turn is driven by Supreme Court case law.

Any suggestion by Sessions and others that she should have done otherwise is an expression of desire for "judicial activism."

Points to ponder (Cynics ed.)

[John Chipman] Gray managed to conduct a major law practice in Boston throughout his forty years on Harvard's faculty. His special field was real property — legal rights in land — although he had once taught constitutional law (which he abandoned because he was convinced that "there was no such thing," that constitutional law was merely politics).

— Gerald Gunther, Learned Hand: The Man and the Judge, p. 50

And he hadn't even seen D.C. v. Heller, where the Court was reduced to reading the Constitution backwards to reach the proper result.

Top blogger

I've seen a number of over-the-top negative reactions to yesterday's U.S. Supreme Court decision in Citizens United v. FEC,* but this one is surely the daftest:

I know readers are befuddled by my relative silence on this. It strikes me as an extreme interpretation of the First Amendment, as extreme as this court's interpretation of the Second Amendment.

I'm not a top blogger like Andrew Sullivan, but I don't find particularly "extreme" the Court's deciding that an individual's right to self-defense in her own home within the District of Columbia to be a more compelling concern than was D.C.'s power to prohibit ownership of arguably the most effective instrument of self-defense.**

Continued relative silence may have been the more prudent course.

* Although I'm impressed by bloggers who can digest and pronounce upon 175 pages worth of Supreme Court opinions in an especially complex area of law within the space of about 17.5 minutes.

** The trouble with the majority's opinion in D.C. v. Heller is that Scalia was holding the Bill of Rights upside down when he wrote it:

The right of the people to keep and bear Arms shall not be infringed, a well regulated Militia [among other things, such as personal self-defense] being necessary to the security of a free State [sic].

Ron Johnson's Second Amendment fantasies

Candidate Ron Johnson discusses D.C. v. Heller:

The Justices that Senator Feingold has supported are the ones who voted against an individual right [to bear arms].

That's news to all three of those Justices:

In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an "individual" right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.

h/t Stephen Breyer (boldface added).

Johnson's claim against Senator Feingold is a false one.

Candidate Johnson again:

The right to bear arms I think of as an absolute right and I'm glad the Supreme Court has finally ruled on that.

Continues Justice Breyer:

(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation.

Where on Earth does Ron Johnson come up with this stuff?

One more, always a favorite:

Strict constructionists ... people like Scalia ...

Hold it right there:

Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be—though better that, I suppose, than a nontextualist.

h/t Antonin Scalia.

And finally:

I'm going to be a very strongest defender of the Second Amendment. ... And of course the fear of people that are strongest defenders of the Second Amendment is that the government will use that registration to some point in time possibly confiscate weapons. In my mind there's really no reason for the government to know who has these guns.

Holy Mackerel. Ron Johnson has gone from a fisherman who believes guns should be the business of Department-of-Transportation-style bureaucracies to Commander-in-Chief of the Northern Idaho Militia.

That's not just a flip-flop, that's a geomagnetic reversal.

How the heck to tell this guy from a career politician?

Points to ponder (Cynics ed.)

Reposted from May 3, 2009

[John Chipman] Gray managed to conduct a major law practice in Boston throughout his forty years on Harvard's faculty. His special field was real property — legal rights in land — although he had once taught constitutional law (which he abandoned because he was convinced that "there was no such thing," that constitutional law was merely politics).

— Gerald Gunther, Learned Hand: The Man and the Judge, p. 50

And he hadn't even seen D.C. v. Heller, where the Court was reduced to reading the Constitution backwards to reach the proper result.