SCOTUS decisis


S&W commemorative revolver

Within weeks of SCOTUS ruling Dick Heller had a II Am right to possess a pistol for self-defense, the District of Columbia informed him the right doesn’t extend to semi-auto pistols after it rejected his permit application for his 1911 .45, because the District considered such firearms to be too similar to machine guns.

Only someone who has shot neither would make such a foolish assumption.

After being denied a right to register his semi-auto handgun, Heller was successful in submitting a .22 revolver for registration. However, if Heller is successful in gaining a permit to keep his .22 revolver in his home, it will have to be disassembled and trigger-locked and/or kept in a safe. This requirement (although it does include an assembly exception while it is being used against an intruder in the home) seems to treat as dicta Justice Scalia’s admonition that the “District’s requirement … that firearms in the home be rendered and kept inoperable at all times … makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.” Dist. of Colum. v. Heller, No. 07-290, slip op. at 58 (June 26, 2008) (emphasis added).

Looks like it won’t be long before Heller II is foisted back upon the court system.

* * * UPDATE * * *

Looks like Dick Heller was equally displeased with the District’s new gun permit regulations, seeing as how he sued the District once again yesterday based, in part, on its disallowance of semi-auto handguns and its requirement that all firearms be kept disassembled and trigger-locked.

Thx to DC Dicta, the DCist, WaPo, and HotAir

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Elementary, my dear Stevens

Well, I have already planned to head up to Lubbock for the UTTTU game on November 1, but now it looks like I will be visiting the High Plains twice this fall.

Below, see the text of an email sent from outgoing TTU Dean Walter Huffman announcing that Justice Scalia will be speaking at the Texas Tech Law School‘s newly-established Sandra Day O’Connor Distinguished Lecture series:

On behalf of the Texas Tech University School of Law, I am extremely pleased to inform you that the second annual Justice Sandra Day O’Connor Distinguished Lecture will be presented by U.S. Supreme Court Justice Antonin Scalia. Justice Scalia has agreed to follow the format established by Justice O’Connor and present an evening presentation to the community at large in addition to separate presentations and student events at the School of Law. A specific date for Justice Scalia’s visit to Lubbock will be announced later, but it will be in the Fall of 2008.

It is always an honor for the Texas Tech University School of Law to host a Justice of our Nation’s highest court, and it is a special privilege to host Justice Scalia. His articulate and aggressive defense of his position as a strict adherent to the fundamental principles established by the U.S. Constitution has made him one of the most well-known and oft-quoted members of the current court. He is arguably both the most colorful and the most controversial member of the court, and I am certain his presentations will be both informative and entertaining. I am equally certain that his visit will be an educational highlight that will last in our law student’s memories for a lifetime.

I would be remiss if I did not thank Tech Law Alum Mark Lanier for his extremely generous support of the Sandra Day O’Connor Distinguished Lecture. Simply stated, without Mark Lanier’s support and personal involvement, this very prestigious and important lecture series would not be possible.

Walter B. Huffman
Dean and W. Frank Newton Professor of Law

It is interesting to note that Mark Lanier is the main benefactor of the Sandra Day O’Connor Distinguished Lecture series, despite his less-than-generous treatment by some appellate courts.

Before I head north to the Staked Plains, I plan on boning up on my recent Scalia Stack of Stuff, including watching his full interview with Charlie Rose, reading the transcript of his interview with the ABA, and reviewing his recent comments on the Establishment Clause.

Of course, I’ll also have to enjoy again his dismantling of ACLU President, Nadine Strossen.


And last, but not least, I’ll have to decide on what to wear. It’s down to three t-shirts …..

NiceIpse Dixit

Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting).

PGA Tour, Inc. v. Martin, 532 U.S. 661, 699 (2001) (Scalia, J., joined by Thomas, J., dissenting).

Minnick v. Mississippi, 498 U.S. 146, 166 (1990) (Scalia, J., joined by Rehnquist, C.J., dissenting).

Thx to Justice Scalia, TTU Dean Huffman, Mark Lanier, and CafePress

In our continuing series chronicling child actors gone good, we are pleased to introduce you to Isaac Lidsky, formerly known as Barton ‘Weasel’ Wyzell (aka, the new Screech) on “Saved by the Bell: The New Class.”

At the bottom leftWow

Since then, Lidsky has gone on to graduate from Harvard College and Harvard Law School after completing a stint on the Harvard Law Review, clerk for Third Circuit Judge Thomas Ambro, and practice in the Justice Department’s Civil Division and later at Jones Day.

Henceforth, he will also be known as a SCOTUS clerk, where he will be clerking for retired Justice O’Connor during the upcoming term.

Oh, and he’s accomplished all this despite being legally blind for the past fifteen years. To donate to the vision-impairment foundation he created, go to Hope for Vision’s website.

Thx to Above the Law and the Legal Times

Zzzzzzzzz

Namely, Justice Ginsburg, who reportedly fell asleep during the reading of the dueling Heller opinions yesterday at SCOTUS.

And as a commenter correctly points out over at Volokh, this is not the first time Justice Ginsburg has been slumber-challenged in the Courtroom. Back in 2006, during the oral arguments in the Texas redistricting case (League of U. Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), Justice Ginsburg apparently snoozed long enough for the Court artist to capture it for posterity.

In her defense in both instances however, anyone who could stay awake through the redistricting mess was likely chemically-imbalanced, and Justice Ginsburg had no doubt read every word of the 154 pages of opinions in Heller, so there wasn’t any great need for her to remain conscious during the reading of the summaries.

Thx to Volokh and the BLT

Amazing

Just one more word about Heller and then I’ll stop I promise.

Most attorneys would consider it a lifelong honor to have any of their works cited just once in a SCOTUS opinion, or even merely mentioned in oral argument—the “Holy Grail” of citation as it were. But UCLA Professor Eugene Volokh (of Volokh Conspiracy fame) accomplished today one of the most impressive citational feats any lawyer could hope for.

Justice Scalia cited not just three times to Professor Volokh’s work, but to three different articles penned by the good Professor. That’s the juristic equivalent of winning not just the Kentucky Derby, but the Triple Crown. In fact, I think the SCOTUS majority’s citations to Professor Volokh’s work numbered just shy of its citations to Blackstone.

Ye ManThe Man

Truly an amazing feat by Professor Volokh and one worthy of awe and praise alike. Congrats to the Professor.

Thx to Professor Volokh and Justice Scalia

OG--original guarantee

A hurriedly-compiled list of some of Justice Scalia‘s (“AS”) most cogent and bombastic (read benchslap-tastic) points is recounted below. Justice Stevens (“JPL”) wrote a dissent vainly attempting to combat AS on AS’s home court of originalist historical context, and Justice Breyer (“SGB”) authored a dissent devoted to supporting the D.C. (the “District”) gun ban itself. Notably, AS reserves his harshest criticism for JPL (calling him “dead wrong” at one point). See Dist. of Colum. v. Heller, No. 07-290, slip op. at 5-6 n.5 (June 26, 2008).

Part II of the opinion delves into amazingly intricate detail as to what is the meaning of the II Am. AS begins by acknowledging that the II Am. is divided into a prefatory clause (the “well-regulated militia” portion favored by collective right proponents) and an operative clause (the “right of the people” portion favored by individual right proponents). AS makes clear that a prefatory clause may operate to clarify the operative clause, but it cannot “limit or expand the scope of the operative clause.” Id. at 4. He chides JPL for suggesting that such a construction would impermissibly render the prefatory clause without effect, because:

[A] court has no license to make [a clause] do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

Id. at 4 n.3. Such a construction, AS explains, would illogically “cause the prologue to be used to produce ambiguity rather than just to resolve it.” Id. at 5 n.4.

AS next turns to the individual nature of the right, reminding the dissenting Justices that the other two times the phrase, “right of the people” is used in the Bill of Rights (I & IV Ams.), it is uncontested that such language confers an individual right.

Examining the substance of the right, AS explains:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search, … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Id. at 8 (emphasis added) (citations omitted).

AS positively disassembles JPL and the District’s construction of the phrase, “bear Arms:”

In any event, the meaning of “bear arms” that [the District] and [JPL] 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 …. 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.

Id. at 13 (emphasis added) (citations omitted).

AS was apparently less swayed by the amicus brief filed by a group of linguists than was JPL, remarking:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Id. at 15 (emphasis added).

AS is also unmoved by JPL’s creative grammatical interpretation of the II Am.:

[JPL] believes that the unitary meaning of “keep and bear Arms” is established by the [II Am.]’s calling it a “right” (singular) rather than “rights” (plural) …. There is nothing to this.

Id. at 18 (emphasis added). AS adds in a footnote:

Faced with this clear historical usage, [JPL] resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established …. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution ofthe United States” is not a whit different from a promise “to supportand defend the Constitution of the United States.”

Id. at 18 n.14 (emphasis added).

Unsurprisingly, when JPL attempts to broadside AS on his own turf—that of interpreting legislative history—AS is blunt: “[JPL] flatly misreads the historical record.” Id. at 30. I think the most revealing barb aimed at JPL by AS is also the most prescient. Replying to JPL’s insistence that commentary subsequent to the ratification of the II Am. somehow bore upon the understanding of those who ratified it, AS is brilliant (as usual):

Before proceeding, however, we take issue with [JPL]’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task …. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding …. “Postenactment legislative history,” … a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.

Id. at 32 (emphasis added). In one fell swoop, AS calls out the jurisprudentially liberal wing of the Court’s central tenet of juristic philosophy. Masterful.

AS easily sweeps aside JPL and the District’s contention that United States v. Miller, 307 U.S. 174 (1939) could be read to support only a militia’s right to bear arms because:

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen …. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Id. at 50 (emphasis added).

One of my favorite passages is a subtle dig at JPL’s professed concern for the judiciary at the expense of the citizenry:

As for the “hundreds of judges,” … who have relied on the view of the Second Amendment [JPL] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

Id. at 52, n.24 (emphasis added). Game … set … match.

AS concludes by discounting the faux concern raised by SGB that the majority opinion “leav[es] so many applications of the right to keep and bear arms in doubt,” reminding his colleague that:

[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.

Id. at 63 (citations omitted).

AS’s second-to-last sentence in the opinion is a skillfully-drafted and subtle rebuttal of the use of the Court by his jurisprudentially liberal colleagues—past and present—to juristically abrogate the Constitution based on modern constructions of ancient legal precepts. In it he concludes that, while the political or cultural viability of the II Am. in modern society:

[I]s perhaps debatable, … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Id. at 64 (emphasis added).

Also of note, AS cites not to just one, but two three of Professor Volokh‘s articles in the majority opinion. That is a very rare honor indeed, but also an undisputedly well-deserved one by Professor Volokh. See id at 3, 11 n.8, 24.

Also, one of the cites is to Texas’s very own Review of Law & Politics, congrats.

* * * UPDATE * * *

More quotes from the majority opinion less of the benchslapping variety can be found at SCOTUSBlog.

Thx to the Heller majority, and as always, to Justice Scalia for his intellect and wit

Say hello to my little friend!

SCOTUS just announced it has affirmed the D.C. Circuit’s decision striking down the District of Columbia’s gun ban.

More details on the text of the opinion (how far it goes in upholding an individual right to bear arms, etc.) as they become available.

* * * UPDATE * * *

From SCOTUSBlog:

10:13 Ben Winograd –
The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg. We will provide a link to the decision as soon as it is available.

10:13 Tom Goldstein – Second Amendment protects an individual right to possess a firearm.

(emphasis added).

* * * UPDATED UPDATE * * *

No plurality and and two dissents (so should be fairly clear precedent).

* * * MORE UPDATES * * *

From SCOTUSBlog:

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed

* ** Read the opinion HERE * * *

Thx to SCOTUSBlog

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