Tag Archive for 'Law'

What would the reversal of Roe v. Wade really mean?

[Editor's note: this post has been in the works since August, and may not be quite polished, but it is time to publish it anyway, since the author will have little time to complete it any time soon due to outside circumstances]

The issue of the long ensconced 1973 Supreme Court ruling in Roe v. Wade the ruling that invented a right to abortion into the U.S. Constitution by divining a right to privacy not found there, continues to be a lightning rod in American politics. The Court narrowed it a bit in 1992’s Planned Parenthood v. Casey, but left it standing. In 2007, Gonzales v. Carhart further narrowed it when it upheld the Federal Partial-Birth Abortion Ban, after having previously struck down a Nebraska state version of similar language in 2000’s Stenberg v. Carhart (Yes, the same Carhart).

What else did Roe accomplish?
Continue reading ‘What would the reversal of Roe v. Wade really mean?’

SCOTUS fails to take advantage of opportunity to make Kennedy right

Yesterday, the Supreme Court saw fit to deny rehearing in Kennedy v. Louisiana, the case that declared the death penalty unconsitutional for the crime of child rape. The State of Louisiana, along with the U.S. Solicitor General, had argued for rehearing and reargument after it was discovered that the Congress passed, and the President signed, a 2006 law making child rape a capital offense in the military justice system. The Court’s prior decision made no note of this law, and in fact claimed there was a “consensus” against the child rape provision by claiming there was no Federal law.

About the only thing the Court’s revised ruling does is remove the reference to no Conrgessional action - but still relies almost solely on its own “independent judgment”, as Justice Scalia so observes in his statement attached to the order denying rehearing:
Continue reading ‘SCOTUS fails to take advantage of opportunity to make Kennedy right’

So… was the Foley affair a Dem trick after all?

Even the NYT has acknowledged yesterday’s news that former Rep. Mark Foley will face no charges. After the whole uproar a month out from the 2006 mid-term elections, where Foley was the issue that doomed many a GOP congressional candidate… Like Lawrence Walsh and his indictments for Iran-Contra a week before the 1992 election, only for them to be dropped later, it is another in the string of political opportunism.

Free Speech is an arrestable offense in Denver

Thanks to Moe Lane of Redstate for the attention to this (”I guess that there really *are* two Americas“):

Seems even the Denver Police Department doesn’t know the Law. It is legal to take photographs from public property. We face some scrutiny from local police departments in the railfan community - where the local cop thinks you are a threat. Until you explain the hobby, and the rights to take photographs from public property. (In our case, we’re mindful not to be on railroad property without permission - something that is rarely given in this post-9/11 world)

Continue reading ‘Free Speech is an arrestable offense in Denver’

D.C. Gun Semantics - District rewords law but it still fails the Heller test

D.C. has issued their replacement gun control law in response to the SCOTUS decision in D.C. vs Heller. What is in it is as blatant a way to skirt the spirit of the SCOTUS decision, by requiring so many barriers to registration as to make it near impossible, and to make the disassembly/trigger-lock requirement still apply unless the owner is in “immediate harm”.

Continue reading ‘D.C. Gun Semantics - District rewords law but it still fails the Heller test’

Individual right: Heller affirmed on 5-4 vote

Yet another “big case” this term was saved for last. District of Columbia v. Heller had been decided in favor of an individual right at the D. C. Circuit Court of Appeals in Parker v. District of Columbia, and the circuit court’s decision was affirmed this morning. 

Justice Scalia with the majority opinion of the court, joined by the Chief Justice and Justices Alito, Thomas and Kennedy, with two dissents: one by Justice Breyer, joined by Souter, Stevens and Ginsburg, and the other by Stevens, joined by Breyer, Souter and Ginsburg.

Opinion here. An excerpt where Scalia destroys the dissent’s view of “arms” (on page 13 of Scalia’s opinion):

In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Scalia’s conclusion (Page 64, emphasis mine):

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
* * *
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Judicial Restraint. It’s a concept lost on too many Judges, and it is refreshing in a way. But this case, with that opinion, should have been 9-0, not 5-4. Further excerpts from Scalia’s opinion, as compiled by SCOTUSBlog’s Tom Goldstein, can be found here.

SCOTUS (Kennedy) says Child Rapists should live in Kennedy v. Louisiana

With the same 5-4 split as the Boumediene Gitmo detainee case earlier this month, the Supreme Court has struck down a Louisiana Statute, adopted in 1995, that made Child Rape a Capital offense.

Justice Kennedy has the opinion of the Majority, where they rely on “evolving standards of decency” in determining what is “Cruel and Unusual Punishment” as such is prohibited by the Eighth Amendment. Justices Stevens, Souter, Breyer and Ginsburg joined Kennedy’s rambling opinion.

Justice Alito provides the dissent, joined by the Chief Justice and Justices Scalia and Thomas.

The opinion and dissent can be found here.  Ed Whelan of NRO’s Bench Memos has the details of the graphic crime that Kennedy et al find less grusome than murder. As Whelan notes:

Kennedy’s 36 pages of insufferable blather amount to little more than a declaration that the majority doesn’t think that capital punishment is ever a fair penalty for the rape of a child—“no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” 

UPDATE: NRO has this editorial Thursday AM:

In his opinion Wednesday for a five-justice majority in Kennedy v. Louisiana, Justice Anthony Kennedy ruled that the Eighth Amendment’s prohibition of “cruel and unusual punishments” forbids imposition of the death penalty for the rape of a child. Or, rather, he ruled that the Court’s modern rewriting of the Eighth Amendment as a license for the Court to impose its “independent judgment” of “the evolving standards of decency that mark the progress of a maturing society” yields that result. If any further evidence were needed that the Supreme Court’s death-penalty decisions have become entirely unmoored from the actual Eighth Amendment — as well as from the good sense of the American people — Kennedy’s opinion provides it.

Is Scalia tasked with the majority opinion in Heller?

SCOTUSblog’s Tom Goldstein, at 10:12 AM on today’s LiveBlog from the Court, speculates based on prior decisions and opinion authors from the March sittings that Justice Antonin Scalia is the likely author of the Heller vs District of Columbia, the 2nd Amendment case challenging D.C.’s ban on handguns.

Tom Goldstein -  The only opinion remaining from the March sitting is Heller.   The only Justice without a majority opinion from that sitting is Justice Scalia.

One would think this bodes good news for the gun rights crowd, given Scalia’s originalist nature. Scalia is not a monolith, though, and I see this as bad news for the cross-appeals by the five other residents that the lower courts found lacking standing. 

Heller (the one of the six original plantiffs that the lower courts found had standing, and ruled in his favor) rests on the premise that the 2nd Amendment secures an individual right to bear arms, while D.C. rests on the theory it is not an individual right but a collective one. One would think Justice Scalia would be reading the 2nd Amendment as it stood at the time of its 1790 proposal and 1791 adoption - when individual gun ownership was a necessity for most of the country.

SCOTUS oversteps jurisdiction, while ignoring its own rules, in detainee Habeus ruling

By a 5-4 decision in Boumediene vs Bush, authored by Justice Kennedy, and joined by Justices Stevens, Breyer, Ginsburg and Souter, the Supreme Court has declared Congress’ provision stripping the Court of jurisdiction to be an “unconstitutional suspension of the writ” (of Habeus Corpus), despite the fact that the Congress has the right to determine the Court’s jurisdiction. Then the Court found it necessary to rule (make a statement) on a question that was not considered at all by the D.C. Circuit Court of Appeals, as to whether the DTA/MCA were a sufficient Habeus substitute, and answered the question in the negative. No briefings, no fidings of fact by a lower court, nothing. In the past, the Court has preferred to stay out of a case until all lower options have been exhausted. In this case, the majority chose not to do so.

Chief Justice Roberts writes an unusually stunning dissent, noting that the Court has engaged in a “constitutional bait and switch”, in holding DTA unconstitutional after it was crafted to meet the Court’s 2004 decision in Hamdi, as well as the MCA, which was enacted after 2006’s Hamdan case. Justices Scalia, Thomas and Alito joined in the Chief Justice’s dissent.

Justice Scalia’s own lengthy dissent starts by identifying the beginning of the “war with radical Islamists” - the 241 Marines killed at the Barracks in Lebanon 25 years ago. The Chief Justice and Justices Alito and Thomas joined Justice Scalia’s dissent.

Continue reading ‘SCOTUS oversteps jurisdiction, while ignoring its own rules, in detainee Habeus ruling’

Major victory in the fight against voter fraud

Today’s 6-3 Supreme Court decision, written by none other than Justice John Paul Stevens, clears the way for voter ID requirements to be put in force for the remainder of the 2008 election campaign.  First up is the Indiana primary, whose restrictions were upheld by the ruling in Crawford vs. Marion County Election Board.  Other states whose restrictions were in doubt will be free to proceed forward.  It is a major victory in the battle to erradicate voter fraud, and it is no surprise that the heavy opposition to it was from the Democrat party.

It should be noted that although the vote was 6-3, the opinions were split between Stevens, joined by Roberts and Kennedy, one by Scalia, joined by Thomas and Alito, that concurred in the judgment, and dissenting opinions from Souter, joined by Ginsberg, and a separate dissent by Breyer.  The basic difference between Stevens and Scalia is Stevens assumes some facts and bases result upon those, while Scalia thinks them irrelevant.




Buried Planet is using WP-Gravatar