Category: Supreme Court


A Talk About Heller at ‘Bama

Alabama_counties_Yellowhammer.jpgThis Thursday I’ll be in recently rain-swept Tuscaloosa, giving a talk at the University of Alabama School of Law on “The Future of the Right to Arms After D.C. v. Heller.” at the kind invitation of ‘Bama’s chapter of the Federalist Society. I hope to discuss Heller‘s revision of U.S. v. Miller, the role of nineteenth-century state court decisions in Heller, and future Second Amendment battlegrounds such as incorporation, concealed carry, and the possible renewal of the expired federal “assault weapons” ban. Time permitting, I’ll also discuss what Heller illustrates about the distinctive character of American conservatism.

The talk will be held at 12:00 p.m. Thursday, August 28, in the Moot Courtroom in the UA Law School building. It would be a treat to encounter some CoOp readers there.

Travel bleg:

I’ve never been to Alabama. Any suggestions for things to do/see during a brief visit to Tuscaloosa or Birmingham (where I’m staying)? I do plan to visit the Birmingham Civil Rights Institute.


Hamdan, Human Rights, and John Edwards

Last week Salim Ahmed Hamdan was sentenced to 66 months in prison pursuant to his conviction for providing “material support for terrorism” before a military tribunal. His material support was comprised of driving Osama bin Laden around and serving as one of his body guards. Hamdan’s relatively short sentence, which will include time already served in detention at Guantanamo, will advance the issue of whether detainees who have served their punishment after conviction in the Administration’s military tribunals will be released, or will continue to be held as enemy combatants. Hamdan will likely complete his five and a half year sentence before a new administration is inaugurated. If President Bush does not release him immediately on completion of his sentence, that will leave the next administration with one more complicated problem to resolve. The NY Times reports that a Pentagon spokesperson “would not speculate’ on whether Hamdan would be released after completing his sentence.

Would it not violate Due Process to hold Hamdan indefinitely after completing his sentence for a criminal conviction? Under the reasoning provided by the Supreme Court in Hamdi, perhaps not.

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What’s the worst still-current Supreme Court decision?

When John McCain made the extremely ill-advised comment that Boumediene v. Bush was “one of the worst decisions in the history of this country,” bloggers showed up in force to illustrate the statement’s ridiculousness. Writers at a number of blog (and other) sites began to list other decisions that are clearly worse than Boumediene, no matter one’s political views. (I personally don’t think Boumediene is a bad decision; but even if it were, it wouldn’t pass these.) The lowest-hanging fruit here are Dred Scott v Sanford, Plessy v. Ferguson, and Korematsu v. United States. There are several other easy fish in this barrel, like Buck v. Bell and Chae Chan Ping. This isn’t difficult. Also, these decisions have since been repudiated or abandoned by the court.

(Sort of. Korematsu has never been formally overruled. However, the decision’s results have been sufficiently undermined — through Fred Korematsu’s coram nobis action; legislative apology and reparations; Fred Korematsu’s Presidential Medal of Freedom; and overwhelming criticism from all quarters — that it is essentially a dead letter today.)

(Chae Chan Ping has also never been overruled in some regards, but the most obviously invidious portions of it — upholding the Chinese Exclusion Act — have been rendered obsolete by the legislature. Today, Chae Chan Ping does not stand for the same things it stood for in 1889. But, see below.)

Paul Gowder recently asked an interesting follow-up question: “What’s the most destructive Supreme Court case that’s still good law?”

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“Machine Guns” That Aren’t: Did the D.C. Code Mislead Justice Breyer?

Magritte.jpgAn emergent theme of October Term 2007 seems to be avoidable mistakes in high-profile Supreme Court opinions. We’ve been surprised by the failure of Court and litigants in Kennedy v. Louisiana to notice the federal military death penalty for child rape, and by Justices Stevens and Scalia’s mischaracterization, in D.C. v. Heller, of the Court’s 1939 Second Amendment precedent, U.S. v. Miller, as “upholding a conviction” for violating a federal firearms law. See 2008 WL 2520816, *26 (opinion of the Court), * 34 (Stevens, J., dissenting). Actually, Miller won in the lower court and was never convicted.

I think I’ve found another mistake, this time in Justice Breyer’s Heller dissent. This one is subtler than the Kennedy error, but it significantly damages the persuasiveness of the Breyer dissent.

Justice Breyer joined Justice Stevens’s dissenting opinion in Heller, which concluded flatly that the Second Amendment “protects only a right to possess and use firearms in connection with service in a state-organized militia,” 2008 WL 2520816, *37 (Stevens, J., dissenting). However, Breyer also authored a separate dissenting opinion that mounts an alternative argument for the constitutionality of the D.C. handgun ban.

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Legal Times Panel on ’07-’08 Term

I am in DC visiting family, and so I decided to attend the Legal Times’ panel “Sizing Up the 2007-2008 Supreme Court Term,” which was held this afternoon at Georgetown Law Center. It was an interesting panel. Tony Mauro moderated, and the speakers included Ted Cruz (who until recently was the solicitor general of Texas and now is at Morgan, Lewis & Bockius), Walter Dellinger (O’Melveny & Duke Law School), Pattie Millett (who recently left the US Solicitor General’s Office to join Tom Goldstein at Akin Gump’s Supreme Court practice), and Malcolm Stewart (a veteran assistant in the US Solicitor General’s Office whose oral argument recordings I’ve used to teach my students about appellate advocacy).

There were several great moments at the panel, including Stewart’s description of “the Two Courts.” The better-known Supreme Court issues 3 or 4 controversial decisions every term, often by a 5-4 margin, and its actions are reported closely by the NY Times and the Washington Post. The other Supreme Court decides more technical questions, such as the interpretation of statutes and federal rules, and its opinions remain largely unknown to the general public though they are in many ways the more important cases for the legal profession. Columnist James J. Kilpatrick once expressed this same concept in the following way —“For every Roe vs. Wade, there are dozens of cases like Unitherm Food Systems Inc. vs. Swift-Eckrich Inc.”

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More Coverage on Factual Error in Child Rape Decision

There has been some interesting fall-out from the NY Times article I blogged about yesterday. DOJ has admitted that it erred in failing to file a brief in support of the Kentucky statute that proscribed the death penalty for child rape, and it has indicated that it may support a petition from the state of Louisiana to rehear the case. More coverage and commentary can be found in the New York Times, as well as at the Volokh Conspiracy and at Doug Berman’s Sentencing Law & Policy.


The NYT on the UCMJ


In today’s New York Times, Linda Greenhouse points out what appears to be a factual error in the Kennedy v. Louisiana majority opinion. Justice Kennedy’s majority said that 30 of the 36 states with the death penalty and the federal government do not proscribe the death penalty for child rape. But the Uniform Code of Military Justice was revised by Congress in 2006 to add child rape to the military death penalty. Greenhouse notes that this provision of military law escaped the attention not only of the members of the Court, but also the attention of the ten parties who filed briefs in the case.

In addition to questioning why no one in the federal government brought the UCMJ provision to the attention of the Court, Greenhouse explores how the parties’ research failed to uncover the provision. Jeff Fisher’s explanation of how his appellate team found an older provision but not this more modern one reads like an ad for Shepards. And lawyers for the state of Louisiana, the party that would have been helped by the information, are obviously ducking the Times’ calls.

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Meet Your Second Amendment: D.C. v. Heller Decided (Updated)


It’s a momentous day. With the Supreme Court’s landmark Second Amendment decision this morning in District of Columbia v. Heller, American constitutional law has just gained a newly enforceable, individual liberty. The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table. Such laws are a violation of the U.S. Constitution.

In this post, I want to look back at the issues I discussed in my earlier CoOp post, “What to Watch for in D.C. v. Heller,” and offer some brief thoughts about how they featured in Justice Scalia‘s opinion for the Court. Before I begin, let me recommend Larry Solum’s typically thoughtful analysis of many of the interpretive techniques employed in the Heller opinion.


1. Recognition of an Individual Right to Arms: You bet. The right is recognized as squarely individual; the “militia” referred to in the preface was and is a popular militia. The Court rejects any requirement of participation in the National Guard or another organized militia.

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So Let’s Say Justice Scalia Writes D.C. v. Heller …

Antonin_Scalia,_SCOTUS_photo_portrait.jpg.jpgTomorrow may be the big day. (Or we might have to wait again. At least I’m improving my calcium intake.) Court-watchers have noticed that, with the issuance of yesterday’s opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court’s March sitting is D.C. v. Heller, and the only Justice who hasn’t written any majority opinions from that sitting is … Justice Antonin Scalia. Tom Goldstein thinks it’s “exceptionally likely” that Scalia was assigned to write the Court’s lead opinion in the most important Second Amendment case in American history.

What could that mean for the decision in Heller? As I’ll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.

In the Heller oral argument, Justice Scalia was the clearest voice in favor of the broad individual rights view of the Second Amendment — what pro-rights scholars often call the “Standard Model.” He emphatically rejected the various “collective rights” theories of the Second Amendment, under which it protects only a prerogative of state governments rather than a right of individuals. Justice Scalia also brought up Blackstone’s emphasis on the right to arms as a necessary adjunct of the right of self-defense, and suggested that D.C.’s high crime rates, far from supporting gun prohibition, were instead “[a]ll the more reason to allow a homeowner to have a handgun.” Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in “common use” at this time — though not arms that are “uncommon” for private citizens, such as machine guns.

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What to Watch For in D.C. v. Heller

lookout2.jpgThe Supreme Court’s next scheduled opinion day, Monday, June 16, could yield a decision in the landmark Second Amendment case of D.C. v. Heller. My guess is that we’ll see Heller on or after June 23, at the very end of the Term. I guess that simply because Heller is the biggest case of the year, it raises wide-open constitutional issues, and it was argued late in the Term, in mid-March.

Either way, here are key points to look for when the opinions arrive. As you’ll see, many of them only come into play if a majority of the Court interprets the Second Amendment as securing an individual constitutional right to arms. Since I think this is the more likely (but by no means guaranteed!) outcome, I’ll run with that assumption in much of what follows.

1. Recognition of an Individual Right to Arms? The threshold issue. Will the Court recognize a genuinely individual right to arms, i.e., one that is not contingent upon participation in a state-regulated military organization? Like most observers, I interpreted the oral argument as revealing that there were between five and seven votes among the Justices for a genuine individual right.

2. What Purposes Does the Right Protect? Privately owned firearms can potentially serve a variety of legitimate purposes. Some of these are civic purposes: deterring tyranny; protecting against invasion or internal disorder; promoting military readiness through individual practice with firearms. Others are private, personal purposes: self-defense against criminal violence; hunting; participating in the shooting sports. Assuming that the Court recognizes an individual Second Amendment right to arms, will it interpret that right in a way that stresses protection for the private purposes of citizen arms — as urged by the provocative amicus brief of Professor Nelson Lund? Or will it emphasize the civic purposes of citizen arms — as it seemed to do in the 1939 Miller decision? Or will it (correctly, in my view) embrace both kinds of purposes, as do many state constitutional decisions? The answer to this question will greatly influence the success of future Second Amendment challenges to restrictive gun legislation. …

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