Thursday, January 3, 2008

Legal News You Can Use

Good morning, folks. Two things on the agenda this fine morning.

First, I have an interesting article from a fellow blogger (and my former law school classmate) Jon Dodson at Down With Tyranny. Jon, writing about the pending D.C. handgun case in the Supreme Court, has an interesting analysis of how judicial philosophy might collide with political philosophy for some of the conservative justices.

The issue for some of the conservative justices is their adherence to so-called "conservative" interpretive principles. These principles, which I personally find rational, suggest that when a judge considers the issues in case, she ought to try to give effect to the intent of the framers of the law (usually a legislature) by first focusing on the actual language of the law. That extends to constitutional construction. The problem in the D.C. handguns case, D.C. v. Heller, is that a fair reading of the Second Amendment's language doesn't really support an individual right to bear arms so much as a collective right. Political conservatives are sold on the individual right, so, in order to secure an individual right, those that have also bought into conservative judicial philosophies might have to betray their "strict constructionist" values in order to secure it.

Jon gives what I think is an excellent parallel: Roe v. Wade. The D.C. handguns case has the potential to be one of those decisions where the Court goes out of its way to protect a right that might not be protected by the Constitution (something you might not want to tell your new co-workers, Dews). So, depending upon how the Roberts Court approaches this case, we liberals may have our own "Roe v. Wade" type case to rail against for decades to come. This just makes the next few months all the more exciting.

On another note, California has sued the EPA over the EPA's decision to block implementation of tougher vehicle emissions standards, and Vermont has joined the suit. A few months ago, Vermont was the first state to win the right to impose tougher vehicle emissions standards, winning a case in Vermont federal District Court (actually, the environmental law clinic at my law school participated and argued in the case). Several states, including California, won similar cases after the Vermont decision. You know what happens next: the Bush EPA does whatever it can to prevent the states from enforcing their new authority. It did this by not granting a necessary waiver. But it did so without giving solid reasons, so there's hope that Vermont and California will be able to enforce their new authority in the near future.

More than anything, this goes to show the (unlawful) lengths that this administration will go to in order to protect favored industries and constituencies. This exposes perhaps the scariest face of this administration: the one that is willing to eschew the rule of law to get what it wants. All the more reason why this election season is one of the most important in a long time.

Happy Thursday folks!


Shane Rollins said...

CityCat told me something about the EPA case that will likely be the reason that the BA will win over the states. Now I hope she'll correct me if I say this wrong, but it involves interstate commerce and how tough that would be then and why the EPA will win this battle.

As for the gun case CC will be, once again, able to explain more but judging by the court and their leanings DC will lose this case. There are some right leaning judges who are considered strict constitutionalists and will likely read the 2nd as an individual right.

ctdonath said...

will likely read the 2nd as an individual right.

The Supreme Court has ALREADY read it as an individual right in Heller. They wrote the question which is being addressed in the Heller case, and the question as written explicitly references an individual right, and explicitly rejects any notion of a "collective" right.

The "collective" right theory of the 2nd is a 20-th century manufactured concoction designed specifically to eliminate a plainly enumerated individual right. The Supreme Court is smart enough to not get distracted by such a fantasy, and said as much in their acceptance of DC's appeal by exclusively addressing the infringement on an individual right.

That some "right leaning judges ... will likely read the 2nd as an individual right" is awfully hesitant. That they will read it thus is a given, and most of the left leaning judges will be hard-pressed to disagree.

Shane Rollins said...

Well then, there ya go

Dewey, Cheatem, & Howe said...

If I recall correctly, the question presented in Heller explicitly asks whether the individual right exists. If that issue already had an answer, why 1) take the case and 2) frame the issue this way?

ctdonath said...

The question is


It does not ask if there is an individual right, it presumes there is an individual right and proceeds to ask whether specific laws infringe on that right. Any notion of a "collective right" is explicitly excluded by a broad stroke.

There may arguably be a non-exclusive "collective right", but that is not addressed in Heller. (Methinks the "collective right", if found and upheld, would apply to multiple individuals collectively servicing crew-served arms - blowing away the "individual arms only" argument ... but that's another thread.)

[why] take the case [?]

Because allowing the DC Circuit's ruling to stand creates a sharp split between various circuit court jurisdictions, and the Supreme Court's primary job is to assure "equal protection" under Constitutional law. Having the 2nd's "individual right" upheld in the DC and (IIRC) 5th Circuit jurisdictions, but infringed elsewhere, is intolerable in a constitutional republic.

Also because the weight of a major jurisdiction (DC) appealing is not taken lightly. A single citizen appealing has the weight of 1/300,000,000th of the nation and can be pretty easily ignored if schedules are tight (as the Supreme Court's usually is), but when 1/51th of the nation comes knocking, the Supreme Court is more likely to listen.

[Why] frame the issue this way?

Because that is precisely what the issue is: an individual, claiming a Constitutionally enumerated individual right, challenged three laws forming a practically total prohibition against exercise of that right - and a Circuit (major) court agreed with his challenge. This case has nothing to do with active formal participation in an official militia, so the "collective right" thing is a red herring, and the question at hand explicitly dismisses such argumentation. A common citizen wants to keep a handgun for home defense, DC forbids him from doing so, and the 2nd Amendment makes clear DC (acting as a federal agent directly subject to the Constitution) may not infringe on that person's right to do so. Distractions and emotional rhetoric aside, the issue is framed exactly as the issue is.

ctdonath said...

a fair reading of the Second Amendment's language doesn't really support an individual right to bear arms so much as a collective right.

The "militia" referred to in the 2nd Amendment consisted of individual citizens coming together, with their personally owned arms, under the guidance of the state, to form a military body. The key is that "the people" - to wit all individual citizens - "kept" and "bore" their own arms, and from that self-armed body a functional (aka "well-regulated") militia could be formed. There was no way the government of the time, nor even the government today, provide enough arms & training to enough citizens to form a functional militia in short order. Even today, various events (riots, hurricanes, etc.) often result in armed citizens providing instant local security when government agents are overwhelmed and outnumbered by widespread social upheaval.

The Founding Fathers also wrote about the importance of ensuring the government be "in awe of the people", knowing that tyrrany/oppression could, in extreme cases, be overwhelmed by a populace able and willing to resist and reform government. This is not a hypothetical: the Waco and Ruby Ridge incidents involved the government going too far in using force against citizens over relatively petty tax issues; the citizens involved fought back, and while they lost the encounter, the government agents suffered such serious losses that no such violent assaults (government-initiated) were attempted, now going on 15 years.

This nation was created and built on the premise of being a nation "of and by the people". It is the people working together who create a government to serve them, unlike most countries where a government imposes its will on a subject people. While we have a powerful standing army, there is still a need for the greater population to be ready to be called into service, self-armed and familiar therewith, ready to act on behalf of the security of their free state. The Selective Service System provides the means of calling up a militia much larger than our standing army - and the 2nd Amendment assures that most can show up with suitable arms should the government be unable to do so in such large numbers on short notice (look into current military supply issues, and the gravity of the situation will be apparent).