Constitutional Law Prof Blog

Within Three Years: Justice Stevens' Contemplates Retirement

“You can say I will retire within the next three years. I’m sure of that.”  That's the prediction of Justice John Paul Stevens according to the just published profile in the New Yorker by Jeffrey Toobin.  Toobin's article joins a recent profile by Adam Liptak in the NYT and an extended profile by Jeffrey Rosen in the NYT Magazine in 2007.

Stevens turns 90 on April 20, 2010. 

RR

Justice Thomas' Wife and Tea Party Activism

Virginia (Ginni) Thomas (pictured), the spouse of Supreme Court Justice Clarence Thomas, says she is energized by Obama's "hard-left agenda" and has launched LibertyCentral to "serve the big tent of the conservative movement."

As Kathleen Hennessey for the LATimes notes:

The move by Virginia Thomas, 52, into the front lines of politics stands in marked contrast to the rarefied culture of the nation's highest court, which normally prizes the appearance of nonpartisanship and a distance from the fisticuffs of the politics of the day.

Justice Thomas, 61, recently expressed sensitivity to such concerns, telling law students in Florida that he doesn't attend the State of the Union because it is "so partisan."

Although Virginia Thomas has long been associated with conservative causes, including working at the Heritage Foundation, this launch of "a tea-party-linked group" is one that "could test the traditional notions of political impartiality for the court." 

It could also test our notions of what judicial spouses should - - - and shouldn't - - - be doing politically and professionally.

RR

Daylight Savings Time as Unconstitutional?

With all the current discussions of states' rights and federal power, the federally mandated change to "daylight savings time" at 2am this Sunday morning may require a constitutional discussion.

Under the Uniform Time Act of 1966, states may exempt themselves from daylight savings time, however federal law preempts state choice regarding different dates of changing from daylight savings time:

(b) State laws superseded

It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section.

Congress passed the Energy Policy Act of 2005 and lengthened daylight savings time in section 110 (amending the Uniform Time Act of 1966  by striking "first Sunday of April'' and inserting "second Sunday of March''; and by striking "last Sunday of October'' and inserting "first Sunday of November"). 

However, because of the express preemption and the Supremacy Clause, states that had been perfectly happy with the previous routine of April/November had little recourse but to change to March/October.

John K Wilson has an amusing and provocative column over at Daily Kos on the constitutionality of Daylight Savings time ("It’s a typical Big Government program: steal an hour from us in March, give back our hour to us in November, and expect us to be grateful for getting back our own property").

RR

Constitutional Rights for Guantanamo Detainees under the Canadian Charter?

The Canadian Charter of Rights and Freedoms, section 7 provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

But does “everyone” mean “everyone,” including those Canadians detained at Guantanamo Bay?

As excellent post by Canadian law student Daniel Del Gobbo at "The Court" (a blawg on the Canadian Supreme Court)" reviews the recent Canadian Supreme Court jurisprudence.  As Del Gobbo notes, “everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada, and the plain language of section 7 extends its protection to “everyone”, not just citizens. 

However, as Justice L’Heureux-Dubé rather sardonically observed in R. v. Cook, [1998] 2 S.C.R. 597, “I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word ‘everyone’.”

Del Gobbo goes on to discuss the jurisprudence relating to section 7's applicability to Canadians detained at Guantanamo Bay including Canadian Supreme Court's recent denial of leave to appeal in Slahi v. Canada (Justice) and Canada (Prime Minister) v. Khadr.  More on Slahi here; on Khadr here.

RR

Quick Quiz: Name the Historical Figure who is NOT a "Founding Father"

Select the person whose writings did NOT inspire the American Revolution:

a.    St. Thomas Aquinas

b.    John Calvin

c.    Thomas Jefferson

d.    William Blackstone

Correct Answer:     C

Explanation:         Thomas Jefferson's notion of "separation of church and state" was rejected by the founding fathers, who established the United States according to Christian principles.  

More Explanation:  Texas has tentatively approved a new educational curriculum which rejects Thomas Jefferson's influence and favors Blackstone, Calvin, and Aquinas.   It is thus possible that this hypothetical question would "correctly" be answered with "Thomas Jefferson."

There are 100 other amendments to the state approved curriculum, including replacing the word “capitalism” with “free-enterprise system” and adding Phyllis Schlafly to the list of important historical figures.

The NYT story is here; NYT blog here; daily blogging by Texas Freedom Network begins here with Jefferson reportage here.

If the curriculum passes, it should make teaching future constitutional law students from Texas quite interesting. 

RR

Granny D, Advocate for Campaign Finance Reform, Obituary

At 100 years of age, Doris Haddock, who walked across the US at age 89 to bring attention to the cause of campaign finance reform, has died.  Her NYT obit quotes her on Citizens United, adding her disapproval:

The Supreme Court representing a radical fringe that does not share the despair of the grand majority of Americans, has today made things considerably worse by undoing the modest reforms I walked for and went to jail for and that tens of thousand of other Americans fought very hard to see enacted. The Supreme Court now opens the floodgates to usher in a new tsunami of corporate money into politics.

RR

Oklahoma Bill: State Law Enforcement Shall Deny Federal Agencies Access to Records

As amended and passed by the Oklahoma Senate SB1965 seeks to "opt-out" of the recently passed federal hate crimes legislation covering sexual minority and gender identity status (see our discussion of the Matthew Shepard Act here).

A portion of the relevant language of SB 1965 provides:

 [state] law enforcement agencies shall deny access to law enforcement records to any federal agency when such request is made relating to a case handled and completed by a law enforcement agency of this state and the purpose is to attempt to investigate or prosecute the individual or individuals pursuant to 18 U.S.C. Section 245, except for records of any individuals convicted pursuant to Section 850 of Title 21 of the Oklahoma Statutes and for those records listed in subsection A of this section.

What does this mean? As succinctly expressed by Ricky Maranon in The Oklahoma Daily: "The bill would prohibit local and state law enforcement agencies from sharing information about hate crimes with federal authorities if the state of Oklahoma did not recognize the crime as a hate crime by its own statutes."   This excellent student newspaper article also notes that Oklahoma does not recognize hate crimes on the basis of sexual orientation or gender identity status. 

Additionally, it seems that SB 1965 was drastically amended to include this language - - -compare the previous version of SB 1965; it concerned open meetings laws.

The bill was sponsored by State Sen. Steve Russell, R-Oklahoma City.  Last November, Russell was quoted in The Oklahoma Daily here as expressing concern about the Matthew Shepard Act: “Sexual orientation is a very vague word that could be extended to extremes like necrophilia.” 

Russell also declared that Oklahoma could opt out of the Matthew Shepard Act on the basis of the Tenth Amendment.   With the approval of SB 1965, the Oklahoma  Senate joins the continuing controversy about the ability of states to opt-out or "nullify" federal law, often concerning possible Congressional health care reform as we most recently discussed here.

RR

Abortion as a Constitutional Right: The Billboard and Health Care Exceptions?

Thoughtful column from Professor of Sociology Carole Joffe (pictured left) author of Dispatches from the Abortion Wars: The Costs of Fanaticism to Doctors, Patients, and the Rest of Us.

Joffe, writing from a pro-reproductive rights position, discusses the Atlanta billboard controversy, noting:

Loretta Ross, the executive director of the Sistersong Women of Color Reproductive Health Collective in Atlanta, has forcefully responded to the charges of racism that are frequently made by antiabortion forces against Margaret Sanger, the foremother of Planned Parenthood. As she recently told the New York Times, “The reason we have so many Planned Parenthoods in the black community is because leaders in the black community in the ‘20s and ‘30s went to Margaret Sanger and asked for them.” “Controlling our fertility was part of our uplift out of poverty strategy, and it still works.”

Joffe comments that "abortion still has the capacity to derail Congressional passage of a health reform bill."

Teaching (and learning) abortion cases in Constitutional Law has never been easy, but it has become more and more complex. 

RR

A Suspect Class?: Law Profs, Attorneys, Judges . . . or People in Poverty?

Law professors are not exactly popular.  In the oral argument of McDonald v. City of Chicago, the incorporation of the Second Amendment case previously discussed here, Justice Scalia implicitly dismissed  the privileges or immunities claim by characterizing it as "the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence," (Tr at 7).  This low opinion of law professors seems to be shared by Chief Justice Roberts, as Professor Robert Batey has wittily demonstrated in his essay in The Crit.  Batey argues that Roberts has chosen law professors as his "scapegoat," setting them [us?] as "objects of scorn and ridicule," both in his public statements and in Rumsfeld v. FAIR.  And then, of course, who could forget former Vice-Presidential candidate Sarah Palin deriding President Obama because he had once taught constitutional law:  "we need a commander in chief, not a professor of law."

Perhaps law professors are unpopular because we are (usually) lawyers and teach other people to become lawyers.  And lawyers have seemingly never been popular.  Two Editorials from the NYT may not be as direct as the well-known Shakespearean bit of dialogue ("The first thing we do, let's kill all the lawyers"), but are nevertheless illustrative.  On March 7, the Editorial was entitled "Are You or Have You Ever Been a Lawyer?" and began:

In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within.

On February 24, 2010, the Editorial was entitled "The Torture Lawyers" and began:

Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar?

Nevertheless, unpopularity - - - even if on the right and on the left - - - does not a suspect class make.  As the famous footnote four of Carolene Products implies, this prejudice must be accompanied by status as a discrete and insular minority, and the underlying rationale is some lack of access to the political processes which would repeal the challenged legislation. 

Certainly law professors and lawyers would fail to satisfy those requirements.  But how about judges?

Some judges in New York have recently argued that judges indeed constitute a suspect class, at least for purposes of the ongoing dispute regarding judicial compensation.  As one brief argues:

It is also clear that, by refusing to adjust Judicial compensation, the Respondents are depriving the Judges in New York State of the Equal Protection of the Law. . . .  The Respondents have argued that the Judicial Branch is powerless to review the constitutional functioning of the other branches in regard to Judicial compensation. Thus, although the Courts, and its constituent Judges, are allegedly a co-equal branch of the Government, they are entirely dependent upon the other branches. Federalist No. 78 [citation omitted].

As has been pointed out in the Appellant's main brief, the other branches of the Government have the power to increase their compensation, and have made sure that there have been increases to their benefits, if not to their salary. Indeed, Legislators are free to obtain outside income. Beyond teaching and writing, Judges are not. It ill-behooves the Respondents to point to the recent increase in expense allowances for Judges, which has done nothing to alleviate the inflationary effect on their salaries since 1999. This allowance constitutes a belated and hollow attempt to address the Legislature's and Executive's abject abdication of their Constitutional duties. It does not restore the rightful constitutional place of the Judiciary. Their treatment by the Legislature and Governor has deprived the Judiciary of equal protection.

Because the Judiciary is a Suspect Class, the Court should review the actions of the Legislature and Governor under the strict scrutiny standard.

Brief of Appellant, Maron v. Silver, 14-15, 2009 WL 5852305 (N.Y.).

New York's highest court, the Court of Appeals, was not impressed:

Nor can it be said that the Judiciary bears any of the traditional indicia of a suspect class-as constitutional officers granted unique salary protection, judges are not “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” (San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 [1973] ).

Maron v. Silver, --- N.E.2d ----, 2010 WL 605279 (N.Y., February 23, 2010).  

San Antonio Ind. School District is the most frequent citation for the legal conclusion that "the poor" are not a suspect class, but  Henry Rose (a law professor, as it happens) argues it is not so simple.  His essay, available on ssrn here, is entitled "The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question."  

Rose's brief essay is definitely worth a read before teaching (or using) San Antonio Ind. School District.  And perhaps a hypothetical about law professors, lawyers, judges - - - or law students - - - could be used to enliven the discussion about suspect class analysis.

RR

Torture Case Against Rumsfeld to go Forward

Judge Wayne R. Anderson of the Federal District Court for the Northern District of Illinois on Friday denied former Defense Secretary Donald Rumsfeld's motion to dismiss and allowed the case for authorizing cruel and inhuman treatment to go forward.

The case, Vance v. Rumsfeld, involves two American employees of a private Iraqi security firm who alleged that they were wrongly held and mistreated by the U.S. military for revealing questionable payments and purchases by their firm.  Judge Anderson ruled that the plaintiffs sufficiently plead their case against Rumsfeld to overcome the pleading standards set in Twombly and Iqbal:

According to plaintiffs' allegations in their second amended complaint, Rumsfeld was personally involved in their unconstitutional treatment by his decision to approve the adoption of harsh treatment methods that were utilized at Camp Cropper during plaintiffs' confinement.

The ruling goes on to recount those allegations in some detail.  (Pages 9 through 12.)  (We've posted quite a bit on Twombly and Iqbal, most recently here.)

Judge Anderson wrote that "[t]wo federal courts forced to address similar issues share our conclusion": the courts in al-Kidd v. Ashcroft (9th Cir.) and Padilla v. Yoo (N.D. Cal.) both denied motions to dismiss based on Iqbal.

Judge Anderson also ruled against Rumsfeld on his qualified immunity defense (page 15) and argument that there was no Bivens remedy for the plaintiffs (page 26).  On the latter issue, Judge Anderson rejected Rumsfeld's argument that separation-of-powers provided a "special factor" counseling against a Bivens remedy.

Judge Anderson, citing Hamdi, dismissed the plaintiffs' procedural due process claim.  He also dismissed their access-to-courts claim, writing that the period of detention--six weeks for one plaintiff, three months for the other--were unreasonable amounts of time to make status determinations in Iraq.

SDS

Virginia AG opines that public universities should be prohibited from including LGBT anti-discrimination policies

"It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ’sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly.”

So writes Attorney General Kenneth Cuccinelli, II, in a letter to Presidents, Rectors, and Visitors of Virginia's Public Universities.  WaPo story here; Think Progress here.

UPDATE: The Governor has issued a "directive" that takes a contrary approach; WaPo story here and analysis here.

RR

Sachs: The Strange Alchemy of Life and Law

Justice Albie Sachs, original member of the Constitutional Court of South Africa and currently visiting professor of human rights at the University of Chicago, delivered a series of lectures this winter that dovetailed with his summer 2009 book, The Strange Alchemy of Life and Law (Oxford). (One of those lectures is archived here.  We'll post links to other recent lectures if they become available.)

 
  

If you haven't read The Strange Alchemy, I highly recommend it.  Sachs weaves together personal, political, and doctrinal accounts of the Court's most significant rulings (available in full text here) in his characteristic conversational writing style.  This is no abstract theory of constitutional law or human rights; instead, it's a personal and compelling account of judging landmark cases at the dawn of the democratic South Africa.  It's excellent reading in its own right, but it will also be a terrific addition to courses on comparative constitutional law, human rights, and even individual rights under the U.S. Constitution. 

SDS

Oral Arguments in McDonald

The Supreme Court heard oral arguments today in McDonald v. City of Chicago, the case challenging Chicago's handgun ban.  As expected, the arguments focused on application of the Second Amendment to the states ("incorporation") and avoided the meaning of the Second Amendment (or any related unenumerated right), except insofar as the meaning drives the incorporation analysis. 

Here are some of the highlights with additional thoughts:

The Second Amendment (or some portion of it) is Almost Certainly Incorporated.

James Feldman (for the respondent City of Chicago) faced skeptical questioning on his distinction between a right to self-defense (preexisting the Second Amendment) and the Second Amendment right to bear arms in order to protect against the federal government disarming the militia.  Feldman argued that the right to self-defense--which, he argued, states traditionally have regulated--"had little to do with" the Second Amendment (quoting Heller).  And the Second Amendment, with its militia clause, stands in a different relationship to the states than to the federal government.  Heller addressed its relationship to the federal government; Feldman argued that nobody was, or is, concerned about the states disarming the militia--and that the right to bear arms for this purpose is not fundamental as against the states.  He argued that this position is consistent with, even supported by, Heller itself.  Without incorporation of the Second Amendment, Feldman argued, all that is left is the preexisting right to self-defense.  But this has been traditionally regulated by the states and ought to be subject to the political process (and not fundamental rights claims). 

Chief Justice Roberts, Justice Scalia, and Justice Alito all attacked Feldman's arguments from different angles.  Chief Justice Roberts said it sounded awfully close to the losing argument in Heller.  Justice Scalia took issue with Feldman's focus on the reason the Second Amendment was codified (to protect against the federal government interference with the militia), while ignoring the function of the Second Amendment (to protect an individual right to bear arms, as in Heller) and with Feldman's argument that nobody cares about states disarming militias.  And Justice Alito, pressing Feldman on whether states could ban all firearms, seemed frustrated by a moving target--Feldman's seemingly inconsistent claims that states could not ban all firearms and that the right to keep and bear arms is not fundamental.  (Feldman's point here was that such a complete ban would violate even the default rational basis review under Due Process.)

In short, at least three justices were hostile to Feldman's attempt to navigate between Heller and incorporation and seemed inclined to incorporate.

A fourth, Justice Kennedy, also seemed inclined to incorporate, but offered Feldman a way out, at least on the merits.  Justice Kennedy suggested that the Court might incorporate the right to bear arms in Heller, but give states wide latitude in regulating the right--something like rational basis review.  Others on the Court may be inclined to this position, as well (even Scalia, as suggested by the Heller decision itself).  (Chief Justice Roberts also suggested this approach in a question to Clement.)  This would mean a loss for Feldman on incorporation, but on the substance it would result in exactly what he advocated by way of a different route: deference to the political process.

The Court may Incorporate Only a Portion of the Second Amendment.

The justices spent a good part of the argument asking whether the Court might incorporate only a component of the Second Amendment (or a related unenumerated right), and not the whole thing.  Justices Kennedy and Stevens pressed this issue the hardest, first asking Alan Gura (for petitioner McDonald) and then asking Paul Clement (for the NRA, which received permission to intervene to argue incorporation via the Due Process Clause) whether the Fourteenth Amendment "necessarily incorporates every jot and tittle of the Federal right."  Justice Stevens offered the Sixth Amendment right to trial by jury in criminal cases as an example: That right, as incorporated against the states, requires only non-unanimous juries.  Clement cast the Sixth Amendment right to a jury trial as an "outlier"--the only incorporated right in the Bill of Rights that applies to the states differently than it applies to the federal government--and maintained his position that the Due Process Clause incorporates the whole Second Amendment, and the Supreme Court caselaw that goes with it (now just Heller). 

Next, Justice Alito asked Clement whether the Court shouldn't return to Justice Harlan's approach in Duncan v. Louisiana--an approach that would consider incorporating rights without necessarily considering each amendment as entirely "in" or "out."

Justice Breyer raised the issue by way of a "chart" of rights--that the right to bear arms may be more important for some reasons than for others.  And those more important reasons may be incorporated, while the less important ones may not be.

Finally, Justice Kennedy returned to the issue with Feldman, asking him for "existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate . . . just the core of the Second Amendment . . . ."

These exchanges suggest that at least Justices Kennedy and Stevens (and possibly Alito, and more likely Breyer) may be open to applying the Second Amendment to the states in a different way than it applies to the federal government.

The Court is Almost Certain to Incorporate Via Due Process (and not P or I).

Several justices jumped on Gura's aggressive argument for incorporation via the Privileges or Immunities Clause, expressing concerns ranging from overturning the Slaughter-House Cases to uncertainty in incorporation doctrine to the unknown boundaries of the Privileges or Immunities Clause.  Based on the questions, Gura's argument is almost surely a non-starter.

Gura's argument for incorporation via the relatively obscure Privileges or Immunities Clause was indeed--and perhaps necessarily--grand.  At one point, Justice Scalia even joked that Gura must be angling for a law faculty position, given Gura's concession that he could just as easily get to incorporation via the much better developed Due Process route. 

What seemed to trouble the justices most, however, was Gura's inability to define the outer boundaries of the Privileges or Immunities Clause.  As a Court, they seemed unwilling to open this can of worms, even if it would allow them to undo an approach under the Slaughter-House Cases that is nearly universally considered incorrect.

Incorporation Looks to the Duncan Standard, American Style.

There was some back-and-forth beginning in Feldman's argument about the right standard for incorporation.  Feldman argued that the Court should look to those rights that are "implicit in the concept of ordered liberty."  Justice Scalia was quick to suggest that that standard was dated and defunct; and Chief Justice Robert qualified it by clarifying that whatever standard the Court applied, it was as to American values (and not some abstract notion of values).  (This is not an innovation; it's clear from the Duncan formulation, below.) 

Chief Justice Roberts specifically mentioned Duncan, and it seems likely that the Court will apply that standard: Is the right "among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' . . . 'basic in our system of jurisprudence,' and . . . a 'fundamental right, essential to a fair trial.'"

In all, the Court seems inclined to incorporate at least a core of a right to bear arms by way of the Due Process Clause of the Fourteenth Amendment.  This is really the path of least resistance, it preserves the incorporation approach the Court has used, and it doesn't open up entirely new areas of unexplored territory.  If the Court says anything about what the underlying right means, it seems to be leaning toward a deferential standard of review that would likely allow the states to do their work in issuing reasonable regulations of firearms. 

SDS

CJ Roberts Denies Stay of DC Same-Sex Marriage

Acting as Circuit Justice for the DC Circuit, Chief Justice Roberts refused to grant a stay of DC's Religious Freedom and Civil Marriage Equality Amendment Act which allows same-sex marriage.  The brief opinion Jackson v. District of Columbia Board of Elections and Ethics, issued today began by explaining:

Petitioners in this case are Washington D. C. voters who would like to subject the District of Columbia’s Religious Freedom and Civil Marriage Equality Amendment Act of 2009 to a public referendum before it goes into effect [citation omitted].  The Act expands the definition of marriage in the District to include same-sex couples. See D. C. Act 18–248; 57 D. C. Reg. 27 (Jan. 1, 2010).  The D. C. Charter specifies that legislation enacted by the D.C. Council may be blocked if a sufficient number of voters request a referendum on the issue.  [citation omitted].The Council, however, purported in 1979 to exempt from this provision any referendum that would violate the D. C. Human Rights Act. [citation omitted].  The D. C. Board of Elections, D. C. Superior Court, and D. C. Court of Appeals denied petitioners’ request for a referendum on  the grounds that the referendum would violate the Human Rights Act.  [see our previous post here].

Petitioners argue that this action was improper, because D.C. Council legislation providing that a referendum is not required cannot trump a provision of the D. C. Charter specifying that a referendum is required. They point out that if the Act does become law, they will permanently lose any right to pursue a referendum under the Charter. [citation omitted]. Petitioners ask the Court for a stay that would prevent the Act from going into effect, as expected, on March 3, 2010.

Roberts concluded that while this "argument has some force," and without "addressing the merits of petitioners’ underlying claim,"  a stay was not warranted.  He reasoned:

First, as “a matter of judicial policy”—if not “judicial power”—“it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern.”

Second, the Act at issue was adopted by the Council and placed before Congress for the 30-day period of review required by the D. C. Charter.  A joint resolution of disapproval by Congress would prevent the Act from going into effect, but Congress has chosen not to act. The challenged provision purporting to exempt certain D. C. Council actions from the referendum process, was itself subject to review by Congress before it went into effect.  While these considerations are of course not determinative of the legal issues, they do weigh against granting petitioners’ request for a stay, given that the concern is that action by the Council violates an Act of Congress.

Finally, while petitioners’ challenge to the Act by way of a referendum apparently will become moot when the Act goes into effect, petitioners have also pursued a ballot initiative, under related procedures in the D. C. Charter, that would give D. C. voters a similar opportunity to repeal the Act if they so choose.

Order at 2-3 [citations omitted].  Roberts ended by noting that there would be a chance for the Court to consider the merits in the future: "the D. C. Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time."

So, for now, the United States Supreme Court has deferred deciding on constitutional challenges to same-sex marriage in DC.

RR

Primer on Second Amendment, Incorporation

The National Law Journal ran four articles today that together make an excellent primer on McDonald v. Chicago, the Second Amendment case to be argued tomorrow at the Supreme Court.

Professor Saul Cornell (Fordham, American History) argues that "[g]un-rights advocates have peddled three dubious claims to the Court": the militia purpose disappeared by the time the Fourteenth Amendment was enacted; Republican supporters of the Fourteenth Amendment were "pro-gun zealots who opposed robust gun regulation"; and there was a general consensus on Second Amendment incorporation at the time of ratification of the Fourteenth Amendment.  Cornell points to the split among the judges on Second Amendment incorporation in the 1870s case against the lynchers of Captain Jim Williams.  He argues that "there is absolutely no evidence to suggest that anyone believed that the Fourteenth Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety, and that only those weapons related to militia activity and preservation were constitutionally protected.  And he argues that the Court in tomorrow's case should look closely at John Bingham's public speeches defending the Fourteenth Amendment and stating that states would retain control over matters such as "personal security."

Timothy Sandefur (Pacific Legal Foundation) argues for incorporation via the Privileges and Immunities Clause (and for overturning the Slaughter-House Cases).  (We posted most recently on incorporation via P and I here.)  Sandefur argues that a ruling based on the Privileges and Immunities Clause "would signal a return to the amendment's original purpose" and open up constitutional space for claims protecting "economic freedoms" against "state and local bureaucrats."

Dennis Henigan (Brady Center to Prevent Gun Violence) argues that the right to bear arms is "the most dangerous right" and that the risks should lead the Court to defer to the states in fashioning restrictions.  Henigan:

A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. . . .

Even if the Court decides to incorporate the Heller right, it should make explicit what was left implicit in Heller--that the unique risks associated with the exercise of the right to gun possession require that the courts show great deference to the elected representatives of the people in fashioning public policies to reduce those risks.

Finally, Professor Calvin Johnson (University of Texas Law) argues that access to original sources through digital searches helps us to see that "the Second Amendment cannot legitimately be applied against the states."  Johnson mentions the Library of Congress web-site, A Century of Lawmaking, and gives this example:

Consider the 79 items from a Congressional Library site search for the word "militia" in Elliot's standard collection of the ratification debates.  In those hits, "militia" is a synonym for state army controlled by the governor.  Nothing from that list treats "militia" as just a group of able-bodied citizens.  The opponents of the Constitution were worried that the federal government had too much power over the state militias. . . . [T]he Second Amendment is Madison's response to the Anti-Federalists' demand to preserve state power by preserving state militias.

SDS