Battles of the 2nd Amendment

Judge Sotomayor of the 2nd Circuit has been nominated to replace Justice Souter on the Supreme Court bench. The nomination has invited a flurry of opinions from everyone with two cents. Sotomayor's nomination has been controversial to say the least, but, as everyone knows at this point, despite all the questions surrounding her record, her victim-minority sensibilities and her competence as an intellectually-qualified jurist, the probability that she'll fly through the Senatorial kabooki theater (aka confirmation process) is very high. But recently, the Supreme Court's reversal of the infamous white firefighter case (Ricci) certainly adds to Sotomayor's baggage that may weigh her down during the hearings. Sotomayor was one of three 2nd Circuit judges that held against the firefighters. Without going into the details of the case, it's enough to say that the Supreme Court rightly held (and reversed Sotomayor) that a disparate impact along racial lines was not an acceptable basis upon which to deny the white firefighters (and one hispanic) their promotions, which they earned by passing a promotional examination. It was a momentous victory for meritocracy, fairness, and racial equality.

But perhaps this is not the most interesting happenstance surrounding Judge Sotomayor. Another one of Judge Sotomayor's 2nd circuit case, Maloney v. Cuomo, will be reviewed by the Supreme Court in the next term. In that case, a New York resident/citizen was arrested and fined for owning a set of nunchakus (or, "chukka sticks") in violation of New York law prohibiting the ownership of arms. Under current New York law, nunchakus are considered arms and thus fits the state's 2nd amendment prohibitions. Moreover, under the 1873 Slaughter-house cases and the Cruikshank case, the 2nd amendment is not incorporated into the states and local governments and therefore, New York's prohibition of owning arms includes the prohibition to own nunchakus.

Here's the problem. DC v. Heller, the seminal Supreme Court's 2nd amendment decision, unambiguously pronounced last year that the right to bear arms is an individual fundamental right, on the same level as free speech for instance. This necessarily means that all states and local governments must comply and respect the right, unless the state's restriction can survive strict scrutiny, which historically-speaking is near impossible. The 2nd circuit panel in Maloney, which included Judge Sotomayor, concluded that 1) the 2nd amendment does not apply to the state or local governments (according to Slaughterhouse and Cruikshank) and 2) that the right to bear arms is not fundamental and therefore the states only have to come up with a rational basis for the restriction to bear arms, as opposed to surmounting the strict scrutiny standard which automatically presumes the state restriction is unconstitutional. The court of course ruled that the state did in fact have a rational basis for the restriction and upheld the New York law. Essentially, Judge Sotomayor and her panel colleagues completely ignored Heller's clear pronouncement that the right to bear arms is a fundamental constitutional right deserving of the strict scrutiny standard and mooting the question of whether the 2nd amendment is incorporated into the states.

Interestingly, there are two circuit cases currently pending that directly concern both issues in Maloney. A case in the 5th circuit, Bledsoe v. U.S., concerns the issue of whether the right to bear arms is indeed fundamental, a challenge thats likely to fall on deaf ears due to the clarity of Heller. There's another case in the 7th circuit, NRA v. Chicago, where the NRA is directly challenging the Slaughter-house cases and Cruikshank's pronouncement that the 2nd amendment, or more generally the Bill of Rights, are not incorporated into state and local governments. Its reasonable to assume that the Supreme Court decided to review Maloney in order to dispose of both of these critical 2nd amendment issues, which in turn would dispose of Bledsoe, NRA, and Maloney, all at the same time. (The ruling could also overrule Slaugherhouse and Cruikshank, a very welcome proposition in my opinon).

Here's my prediction for Maloney: it's hard to imagine that the Supreme Court will reverse itself so quickly after Heller. Thus, I think the Court will affirm Heller and rule that the right is indeed fundamental. The State of New York will have to show that its restriction on owning nunchakus has a "compelling state interest" (as opposed to simply a rational basis) and that the restriction is narrowly tailored. I highly doubt that New York will be able to surmount this high standard of review since there's an automatic presumption that the restriction is unconstitutional. Additionally, nunchakus are usually used to practice martial arts (how many assaults/murders have you heard of where nunchakus were used?) and the self-defense justifications for owning and bearing arms generally are compelling reasons that run against the State's compelling interest in curbing arms ownership by its citizens. So if the State fails to meet its burden, which I predict it will, the Court will then rule that the State law abridging the 2nd amendment is unconstitutional, reversing Sotomayor's ruling in Maloney. Moreover, given the incrementalist approach of the current Supreme Court, it's not unreasonable to predict that the Court may "prudentially" punt on the constitutional issue of whether Slaughterhouse and Cruikshank were rightly decided.

At any rate, it's an exciting, and in some ways precarious, time for the 2nd amendment. Its founding integrity is far from certain.

American Confucius

Boumedine v. Bush: Paying for Terrorists' Legal Rights

On June 12, 2008, the U.S. Supreme Court rendered its opinion on whether enemy combatants imprisoned at Guantanamo Bay, Cuba, have the right to petition for writ of habeas corpus. Habeas corpus is a Latin phrase which literally means, "We command you to bring the body." In legal terms, it has been the historical constitutional right afforded to Americans accused of committing a crime to have his day in court. Indeed, a fundamental right critical in a democratic society.

So what did the U.S. Supreme Court say? In a 5 to 4 decision, the majority ruled that enemy combatants do have the right to a habeas corpus petition. In other words, enemy combatants now receive taxpayer funded federal public defenders and access to our civilian courts. Since the ruling, many legal scholars have opined on this highly political decision. Most have been very esoteric, difficult for the laymen to understand.

But here is an article by John Yoo published today in the Wall Street Journal. Yoo is a law professor at UC Berkeley Law School, co-authored the USA PATRIOT Act, authored the famous, or infamous, White House memo on torture, an emphatic defender of a strong executive branch during wartime, a brilliant legal mind, and, a proud Korean-American.

Yoo gives us a little historical context.

["In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists."]

I would distinguish further that the German prisoners captured on the battlefield in WWII were uniformed military soldiers of a sovereign nation, motivated by their loyalty to country. (Yes, it's certainly arguable whether the officers were loyal to a country or to an evil ideology, but, the point is, WWII involved conventional warfare with conventional armies.) Yet, as Yoo points out, they still were not given access to our courts. Moreover, most of these German prisoners were decent people (again, arguable) who shared many similarities with Americans. But still, no civilian court. Why? Because they were prisoners of war, enemy combatants.

Today's war on terror does not involve two sovereign nations going at it. No. Rather, it involves a tolerant freedom loving nation against thugs who in the name of a god strap bombs to themselves and obliterate and maim civilian men, women, and children. And here are 5 Supreme Court justices deciding to give these Islamo-Fascists access to taxpayer funded civilian courts and a public defender. I know, it's hard to believe.

This is obviously a dangerous slippery slope. Once we take a piece of our Constitution and give it to the terrorists, what will stop the Court from extending the entire document? Mark my word, soldiers will soon be required to read enemy combatants their Miranda rights, in Arabic! It won't stop there. The 4th amendment right to be free from unreasonable seizure. The 5th amendment right to not incriminate yourself. And the 14th amendment right to due process. You can be sure the terrorists will demand these rights. It's only a matter of time these rights too are extended to the captured terrorists.

Scalia put it best, "The Nation will live to regret what the Court has done today. I dissent."

A Constitutional Right to Gay Marriage? A Foolish Delusion Indeed

As my opening salvo I have decided to rant about today's big news from good 'ole California. Let me preface by saying that I do not take moral or personal issue with gay marriage here. As Senator Goldwater himself said, "there is no gay exemption to the right to life, liberty, and the pursuit of happiness." Instead, I lament the legal implications of judicial activism.

In my first year constitutional law class, our professor quipped as a matter of factly that when we as law students consider who to vote for in the next presidential election a primary consideration will be the candidate's judicial philosophy and his promise to appoint judges who embrace a particular school of judicial interpretation. The class erupted in sarcastic laughter, as in “No we won’t. Who cares? Remember? It's the economy stupid."

Obviously, it was early in the semester and many classmates, myself not included, had not yet realized how influential the U.S. Supreme Court’s opinions are on society. The Court’s primary (and only) role is to interpret the U.S. Constitution and say what the “law of the land” is. By setting the legal boundaries to which all states must comply, the Court, by way of its opinions, directs, and in certain instances, molds the public’s sense of morality. It can be successfully argued, however, that the process is reverse – that the Court adjudicates according to the changing winds of the public square. This argument is certainly not unfounded.

The California Supreme Court opinion in In Re Marriage Cases, published today, exemplifies one extreme of the judicial interpretation spectrum: Developmentalism, or as conservatives rightly call it, judicial activism. Judicial activists believe in a “living, breathing Constitution,” one that “evolves with the times.” However, there’s a twist here. Did the Court really adjudicate according to California’s changing perception toward same-sex marriage? I think not.

The Court did two things mainly. It created a new constitutional right to same-sex marriage violating the legal notions of stare decisis. Most damagingly, however, it “short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values."

The precedent upon which the court in California was bound is unambiguous. According to Glucksberg, the seminal U.S. Supreme Court case dealing with constitutional rights, a two-step analysis must be used to determine whether an asserted right or liberty interest is fundamental. First, the court looks at the “careful description” of the asserted fundamental interest. Then the court examines whether that interest is “deeply rooted” in the American legal tradition. The second prong is admittedly a high standard, arguably insurmountable. If a party asserts a “new” right, then, by definition, it really can’t be deeply rooted in the American legal tradition. It can be reasonably argued that the Court exhibited judicial restraint and purposefully created a high standard to discourage the wanton assertion of new rights.

There is nothing in our Constitution that provides for a right to same-sex marriage. Moreover, applying the second prong of the Glucksberg’s framework, any layperson unschooled in constitutional law knows enough to know that it is heterosexual marriage that is deeply rooted in American tradition, not same-sex marriage. To conclude otherwise would be a foolish delusion. Only one other state, Massachusetts, misguidedly recognizes a fundamental right to same-sex marriage. Applying this logic, a skeptic may argue then that our society would be static. No change, nor progress. Here, my discussion turns to the main thrust of my critique of In Re Marriage Cases.

We live in a republican democracy. According to the Tenth Amendment to the Constitution, the power to create a new fundamental right not provided for in the Constitution lies with the people of each and every state. In 1977, the California state legislature banned same-sex marriage. In 2000, Californians voted to maintain marriage as a civil union between a man and a woman (although, since then, a marriage and a civil union, in terms of legal benefits, have become nearly identical, leaving the issue to a mere semantic difference). Notwithstanding this clear mandate, the California Supreme Court today struck down the state laws and ruled that the right to same-sex marriage was fundamental, ergo, constitutional. The Court exhibited the worst kind of judicial activism. It not only legislated from the bench, but it legislated against the desires of the people.

It is certainly possible that the public’s perception has changed since 2000. It is possible also that if the same referendum was held today, the outcome would be different from that of 2000. But the troubling point is that the California Supreme Court usurped the law-making power of the legislature, and by doing so, violated the separation of powers and ran roughshod over the constitutional right to a republican form of government of 36 million Californians. The question going forward is whether this case makes it up to the U.S. Supreme Court. If it does, how will that Court rule? The clear danger is that it will end up as Roe v. Wade part duex, another monstrosity in the corpus juris.