I've had an on-again-off-again relationship with Starbucks for as long as I can remember.  Their prepared drinks are spendy, but as a guy who grinds his own, I've found their Cafe Verona to be very versatile, and the Ethiopian Sidamo balances nicely with steamed milk.

I'd never really considered their policy on guns.  Heck, it's a coffee shop.  It's frequented by pseudo-intellectuals whose offspring are white kids with dreadlocks.  Despite the lack of any signage stating so, I'd always assumed they wouldn't be too fond of guns.

Therefore, it came as something of a pleasant surprise to find out that they're not caving to pressure from the Brady Campaign to ban guns from their stores.

I may have to spend more money there.

Judge Frank Easterbrook took the stand today in the case against Hal Turner.

Turner really wanted to be Glenn Beck, but all he ever amounted to was a guy with a small cancelled radio show and a website he used to convey his views about white supremacy.  He was a Holocaust denier who acted for a time as an informant for the FBI against his own kind.

It turns out that Turner was just a bit miffed at Easterbrook's decision in NRA v. Chicago last June, and his reaction was quite intemperate:

Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.

He then provided the home addresses of 7th Circuit Judges Frank Easterbrook, Richard Posner and William Bauer to his readers.

Does this constitute an actual threat or conspiracy? That's up to the jury, but it certainly wasn't wise in any case.  I, for one, am certainly sick of hearing the phrase "watering the tree of liberty" thrown around so casually.

Turner could face up to ten years in prison. Let's hope he has to watch reruns of Space 1999 the whole time.

Long story short, with the exception of Breyer, there appears to be no significant opposition to incorporation through Due Process.  With the exception of Ginsburg, the Court showed no interest in revisiting the Privileges or Immunities clause.

So, it's a win, but only for the 2nd Amendment. Although Slaughterhouse and Cruikshank stand for the time being, incorporation here will whittle away at them, as it did in Gitlow and Benton.

The transcript [pdf] is up here. Josh Blackman was there, and has his commentary here.

I was saddened to see how quickly Scalia and Roberts dismissed the idea of overturning Slaughterhouse. I'd worried that Scalia would be opposed to revisiting Privileges or Immunities, and I was sadly proven right.

Regarding selective incorporation, a doctrine he's been wary of in the past, Scalia said, "As much as I think it's wrong, even I have acquiesced in it."

Breyer's "imaginary importance of ordered liberty chart" is truly a surreal idea. He tried to get a few digs in at the Heller majority but failed. He did his best to waste some of Gura's time with irrelevancies.

Oral arguments are tomorrow morning at 10:00 EST.  Check for transcripts after lunch.

Though they did so in Heller, the Court has chosen not to allow a recording of the proceedings.  I'd have hoped that, with Souter gone, the Court would consider broadcasting, but that appears not to be the case.

Though the Justices' minds are likely made up at this point, the tenor and nature of their questions may give us an idea where they lean.  It should be fun to see Chicago counsel dissemble while trying to pretend Heller didn't mean what it said.

They're …

News comes from Eugene Volokh that the 7th Circuit wants the Skoien case reheard en banc.  There are two possibilities here.

The first is that there was widespread disagreement with Judge Sykes' decision, and that the others on the panel hope to reverse it should we lose the McDonald case.  This would be similar to the Nordyke situation, in which the initial decision was similarly remanded pending the Supreme Court's decision.

The second possibility is that they want to try for a more lenient standard of scrutiny, which seems unlikely.  Heller took rational basis off the table, and Sykes' opinion was as close to "intermediate" scrutiny as could be workable.  All that remains is strict scrutiny for the 2nd Amendment.

Maybe, just maybe, there's actually support for that.  We'll have to wait and see.

In the meantime, the 4th Circuit has quietly agreed with the 7th, vacating William Chester's conviction on similar grounds in an unpublished opinion.  Though an "unpublished" opinion is not binding precedent, its very existence shows a certain amount of support for Skykes' interpretation.

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

…

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 …

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. Scott, 437 U. S. 82, 101 (1978). If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants. Roberts' concurrence, p. 6

McDonald v. Chicago asks that very question in regards to Slaughterhouse, and it's encouraging to know that at least five Justices are willing to question blind adherence to precedent.  Things have obviously changed since the Rehnquist Court.

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 …

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.  As such, he's being branded a turncoat by the very people who put him into office.

Wait until the health-care bill tanks, and we'll really see sparks.  The last half of his term isn't going to be very chipper.

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.  In taking McDonald, the Court is telling us that they're interested in entering a larger and more important debate. Clement seems worried that, should the Court choose not to overturn Slaughterhouse and Cruikshank, the game is up.

This is simply not true.

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. The prospect of resolution through litigation–and the threat of it–against local governments, for legislative actions taken in good faith to advance important public aims, is a further reasonfor rejecting the unprecedented constitutional interpretation petitioners seek the Court to impose. p. 3

"Resolution through litigation?" If that sounds familiar, it's because that is is exactly what Cook County attempted in the late 1990's, when they started suing firearms manufacturers.