Monthly Archives: January 2010

13 posts
Civil Rights

Poking the Bear

2 comments

In what was an otherwise predictable State of the Union address from President Obama, one episode sticks out.  The President chose to attack the Supreme Court directly, with seven Justices seated only feet away from him.

Regarding last week’s decision in Citizens United v. Federal Election Commission, he said,

With all due deference to separation of powers [spoken with unmistakable contempt], last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests–including foreign corporations–to spend without limit in our elections.  I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people.  (…)  I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

The Justices sat serenely, with the exception of Samuel Alito, who shook his head and appeared to mutter “that’s not true.”

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Recordings

Tesla’s Wheelwork

A man went on vacation to a remote island. As soon as he got off the plane, he heard drums and thought, “wow, this is cool. Very native.” However, the drums never stopped. He heard them when he went to the beach, when he ate dinner, even while he tried to sleep.

This went on for several nights.  In frustration, he went down to the office and asked the manager, “don’t the drums ever stop?”

The manager replied, “No! Drums must never stop. Very bad if drums stop.”

“Why? What could be worse than this constant clatter?”

“When drums stop… bass solo.”

Then the drums stopped.

Civil Rights

Clement Gets His Say

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The NRA has won their motion to gain an allotment of the oral arguments in McDonald v. Chicago.  As I’d previously mentioned, Gura gets 30 minutes to argue his case, a portion of which has already been given to the Texas Attorney General.

Frankly, I’m not the least happy having Paul Clement argue on our behalf.  This is the guy who argued during Heller that the Supreme Court should stick with a broad standard of scrutiny favoring government interests.  Why the NRA retained him, of all people, is beyond me.  Stephen Halbrook would have been a much better choice.

As Gura put it, “I hope that this time Paul understands that handgun bans are unconstitutional.”

I’ve no idea as to the Court’s motives in granting the motion.  It could be that a couple of Justices are reluctant to overrule Slaughterhouse, or it could just be that they want as many perspectives as possible.

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Civil Rights

Questioning Precedent

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The Supreme Court decided this week in Citizens United v. Federal Election Commission [pdf] that the McCain/Feingold campaign finance reform act represents an unconstitutional restriction on the 1st Amendment rights of corporations.  The majority opinion was authored by Justice Kennedy, joined by Scalia, Roberts, Alito and Thomas.

Justices Roberts, Scalia and Thomas all delivered concurring opinions brimming with passion on the matter.  One pressing issue was the validity of the Court’s prior decision in Austin v. Michigan Chamber of Commerce.  The Court chose to overturn Austin, opening a lively internal debate on the scope and limits of stare decisis:

At the same time, stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539 U. S. 558, 577 (2003), nor “a mechanical formula of adherence to the latest decision,” Helvering v. Hallock, 309 U. S. 106, 119 (1940), especially in constitutional cases, see United States v.

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Civil Rights

The Liminal Moment

Scott Brown defeated Martha Coakley in the race for Ted Kennedy’s vacant Massachusetts Senate seat.  This changes the balance of power in the Senate and erodes the 60-vote majority the Democrats have enjoyed until now.  This is nothing short of a referendum, not just on President Obama’s performance, but on the the 4-year Democratic majority and their agenda.  The brakes are on for the health care bill, cap-and-trade, and many other pet causes.

Almost tellingly, stock markets took a jump this morning, with health care stocks rallying.  One wonders if today’s election had something to do with that.

The closing gap also means that we’ll likely see the conservative Democrats acting a little more conservatively as they feel safe splitting away from the hard-left leadership in Congress.

It also bides well for the 2010 midterms.  Remember that the 1994 Republican takeover of Congress was preceded by victories in the New Jersey and Virginia governors’ races. 

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Civil Rights

Schadenfreude

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Well, it looks like I agree with Sarah Brady on one thing, at least.

The Brady Campaign gave President Obama an “F” rating on gun-control issues in a report issued this week [pdf].

In just one year, Barack Obama has signed into law more repeals of federal gun policies than in President George W. Bush’s eight years in office. From the repeal of Reagan Era rules keeping loaded guns out of national parks to the repeal of post-9/11 policies to safeguard Amtrak from armed terrorist attacks, President Obama’s stance on guns has endangered our communities and threatened our national security.

That first sentence is particularly telling.  Obama knows the new truth when it comes to gun control:  paying lip service to it is a great rhetorical ploy, but attempting to follow through is political suicide.  Now he’s in a rather unenviable position: he was expected to support gun control, but he lacks the wherewithal to do so. 

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Civil Rights

Division in the Ranks

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Paul Clement, representing the NRA, has filed a motion [pdf] requesting a portion of the time reserved for petitioners’ oral arguments in McDonald v. Chicago.  Alan Gura will have thirty minutes to argue his case before the Court, some of which will be given over to Texas Attorney General Greg Abbott.  I doubt he can spare another ten.

The gist of the NRA motion is that they wish to have more time dedicated to arguments in favor of Due Process incorporation, believing that it “presents the most straightforward and direct route” to incorporating the 2nd Amendment.

The NRA had their chance to argue for selective incorporation.  They did so before the 7th Circuit last June, and it was a good case.  It was considered, alongside McDonald, to be heard by the Supreme Court.  The Court chose McDonald.

The Justices could have taken the easy way out with the NRA case, which asked only for selective incorporation. 

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Civil Rights

When in Doubt, Blame the 2nd Amendment

Two other amicus briefs on behalf of the respondents in McDonald v. Chicago warrant mention.  The first [pdf] is filed on behalf of the Villages of Winnetka & Skokie, Illinois.  The other is written by Carolyn McCarthy.

You may remember Skokie from its brief cameo in the Blues Brothers.  In their brief, they maintain that incorporation of the 2nd Amendment would violate Home Rule powers.  They also worry that constituents will grow weary of seeing their government spend tax dollars defending unconstitutional regulations.

Another aspect of amici’s experiences should concern the Court. When Evanston and Winnetka repealed their more restrictive laws in 2008, it was not because their citizens or legislators had been persuaded by policy arguments like the ones advanced by petitioners, respondent NRA, and their amici–but rather because they determined that the costs of defending the laws in federal court were too high to have local taxpayers bear.

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Civil Rights

McDonald v. Chicago: Amicus Briefs for Respondents

Final amicus curiae briefs in support of the respondents in McDonald v. Chicago were due today.  Among the parties filing are the Educational Fund to Stop Gun Violence, a Joyce Foundation beneficiary, and a coalition of “public health” organizations, including the American Academy of Pediatrics.  Both briefs take the argument that the 2nd Amendment should not be incorporated, as it would endanger gun control as a public health policy.

Equally ludicrous, but less insolent than the Chicago brief, is the one filed [pdf] by the United States Conference of Mayors.  These folks were an endorser of the controversial and impotent group Mayors Against Illegal Guns, and they claim that “the Second Amendment protects a largely obsolete Eighteenth-Century right.”  They point to New York City’s “stop-and-frisk” program of detaining people suspected of carrying concealed weapons as one practice that may be endangered by incorporation.

Accordingly, if applicable to state and local governments and confined to framing-era understandings, the eighteenth-century conception of the right to bear arms would imperil the use of stop-and-frisk tactics against drug dealers and gang members, at least as long as they carry firearms openly and have not been previously convicted of a felony or otherwise fall within the scope of the regulatory authority acknowledged in Heller.

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Humor

Banner Ad Fail

From a lecture by John Pilger, given at an event called Socialism 2009 (“New Left for a New Era”).  Mr. Pilger thinks our current President isn’t liberal enough:

During his brief period in the Senate, Obama voted to continue the wars in Iraq and Afghanistan. He voted for the Patriot Act. He refused to support a bill for single-payer health care. He supported the death penalty. As a presidential candidate he received more corporate backing than John McCain. He promised to close Guantanamo as a priority, but instead he has excused torture, reinstated military commissions, kept the Bush gulag intact, and opposed habeas corpus.

Notice the banner advertisement, however.  Brownell’s.

Somebody’s got a sense of humor.