Monday, June 28, 2010

McDonald case

I spent most of the afternoon reading the mind-numbing 214 pages of today's Supreme Court decision in McDonald v. City of Chicago. I feel like going on a full-blown rant about it, as the whole subject is one of my real passions, but I'm going to exercise immense self-restraint and limit myself to four points:

1. Justice Thomas is the only one who gets it right. It's high time for the court to blow life back into the Privileges or Immunities Clause and end the silly legal fiction about the Due Process Clause. Aren't 137 years of relying on what virtually everybody agrees was a horribly reasoned case (Slaughter-House, 1873) enough?

2. The four dissenting justices might actually be clinically insane. It takes a deep, pathological degree of schizophrenia and/or denial to be able to find clear constitutional protection for abortion and sexual practices (as they do), while being unable to locate anything in the document that might protect firearms ownership. How do these people even pass their first year of law school, let alone ascend to our highest court?

3. For the most thoughtful rapid responses to the court's decision, see Eugene Volokh's always-excellent team of bloggers here. (In fact, it's worth bookmarking that site for insightful analysis on nearly any legal issue in the news.)

4. It is both sad and astonishing how thoroughly interconnected our nation's history of race relations is with its history of firearms use and legislation. As revealed on nearly every page of today's decision, the influence of slavery, the Civil War, Southern black codes, the Ku Klux Klan and other hate groups/mobs, etc., may have shaped our current laws and practice with respect to guns and gun control more than things like the English laws that were the nidus around which American law formed. The modern political irony is this: the Reconstruction-era civil rights statutes and constitional amendments passed in order to protect blacks against both discrimination and outright assault--by, among other things, guaranteeing that the victims could arm themselves in self-defense--are now routinely denied that exact effect by those on the left who are most ardent in their claims of being in favor of protecting racial minority rights. I.e., they wish to deny or reverse the effects of the laws that were originally passed to support the cause they purport to champion. Bizarre.

OK, with that, I'll shut up.


Shrike said...

I rarely agree with Volokh or Thomas; at least the former makes rational arguments I can respect and I regularly visit his blog because it is a valuable resource. I have to say I also do not share your view of this case. If you are going to claim that four justices of the Court are insane, it might help to offer some reasons why.

(bemused Canadian lawyer who happens to play a little poker)

Grange95 said...

I've always thought that Slaughter-House was among the all-time top five worst Supreme Court decisions (Plessey v. Ferguson, Lochner, Korematsu, and Bush v. Gore round out the list, purely off the top of my head). It's refreshing to see Justice Thomas (with whom I rarely agree) make a strong case for reevaluating the P/I Clause.

As for the 2nd Amendment issue, I served as a moot court judge a few years ago where the competition used the Heller / McDonald issues as the base argument. I felt that the individual right argument was much more compelling under any analytical approach, and I also felt the incorporation argument was pretty straightforward. I wouldn't say that the opposing arguments are "insane", but I find them a much tougher analytical sale.

FWIW, the Volokh Conspiracy is the blog I've followed the longest and closest, despite not being anywhere near their ideological target audience. I find their contributors to be thoughtful and clear writers, and even occasionally persuasive.

Rakewell said...

OK, "insane" may be a little over the top. Still, if you can read the constitution and find there a right to abortion and a right to perform sexual acts, but you CAN'T find a right to keep and bear arms, then it's perfectly clear that you are finding exactly what you want to find, and not finding exactly what you don't want to find. There is no coherent analytical theory under which one can argue that the former are constitutionally protected rights but the latter is not.

Anonymous said...

I've been reading your blog for a while and find you thoughtful and intelligent for the most part.

I have to ask what you're thinking expressing an opinion on this. Are you a lawyer? Argued cases in court? Then why would you publish an opinion in such a complex issue?

I'm not an accountant, but I follow several popular CPA blogs and do taxes for myself and some friends. Would you hire me to do your taxes?

If a matter requires expertise, you should leave it to experts. A hobbyist interest does not constitute expertise.

Andy said...

Justice Sotomayor inasmuch said "the courts can make law" in a conference several years ago. Sadly, not much hay was made about such a blatantly unconstitutional statement at her confirmation. It's a pervasive and perverse viewpoint that now infects most law schools as academia has been overrun with liberalism. Thus, "rights" can be invented from thin air ("right to privacy" comes to mind) to fit their left-wing worldview and other things they dislike (the Second Amendment, for example) may be ignored. Judicial supremacy is a plague upon our form of government. The judicial branch was made weakest by design, but yet they continue to insert themselves into places they do not belong. The solution is to appoint only originalists to the court. Only then will our government survive.

Grange95 said...

@ Andy: So you think that "judges making law" is "blatantly unconstitutional"? I suppose you'll be moving to France, then? French law is based on the Napoleonic Code method of law. American law is based on the British common law method, in which judges have been "making" the law for centuries. Surprise!

Let me let you in on a dirty little secret the Republican spin machine doesn't want you to know: "originalist" judges "make the law" just as much as judges from a more liberal tradition. It is the very essence of the law that the Supreme Court will be confronted with difficult decisions that cannot be resolved by a simple glance at a clause in the Constitution. Quick: tell me if an "originalist" view of the Constitution's Due Process clause applies to government monitoring of the internet (be sure to cite appropriate material from the Framers discussing their views of the internet!).

My point is not to take sides in any particular dispute. As a lawyer and someone who reads a lot in the area of constitutional law, I haven't found any particularly convincing over-arching theory of constitutional interpretation. The court, whether conservative or liberal, inherently makes tough policy decisions in every case. They have to do so taking into account historical and social context, so they can understand the policy implications of their decisions. Because they are the court of last resort, the decisions they face will be the toughest and most controversial. But no court decision has ever been based on a glib reference to "originalism".

As for the "right of privacy" being "invented from thin air", you obviously have never read the case law itself, only the right-wing talking points. But since you want to talk originalism, keep in mind that our system of government was intended to be a government of expressly granted and limited powers (read the 10th Amendment). The concept of the right of privacy is that there are certain spheres of private life which should be free from government interference and regulation, absent a compelling governmental reason. That's a concept I think most people, including conservatives and originalists, would agree with. In fact, it is a very conservative concept (minimal government, maximal personal liberty), and there's even an "originalist" argument to support a right of privacy. Of course, the phrase "right to privacy" is now entangled with the abortion debate, so no meaningful public debate can be had on the underlying concept. Unfortunately, "right to privacy" and "originalism" have been torn from their intellectual moorings and turned into empty catchphrases (take a bow, Ed Meese).

Wolynski said...

Not that I know much about the Constitution, except it was written by slave owners and protected white land owners. It never gave the women right to vote. Maybe it's time to look upon it as an outdated historical curiosity.

Just because the slave owning founders put something in it about muskets, doesn't mean that 200+ years later I can keep a rocket launcher in my living room.

If we are to follow that document to the letter, shouldn't we be entitled to keep ONLY the firearms the founders had in mind?

NT said...

"The four dissenting justices might actually be clinically insane."

Is this better than calling them morons?

Anonymous said...

Honestly, I don't understand why people have such ideological stances on the Second Amendment.

I think the basic rule on weapons should be practical and simple: everyone who you can hit with your weapons should have a say in whether or how you can own one.

If you live in some rural area where you don't have line of sight to your closest neighbor, I see nothing wrong with owning a rocket launcher. If you live in an apartment complex with 12 inch walls, I'll support your effort to regulate 15-inch knives.

Erik said...

Grange95 makes excellent points. Very well said, sir.

FRed said...

I agree with Erik. Good comments Grange.