Civil liberties narrowly survived the recent term of the Supreme Court, but libertarians should be concerned about the way they shook out. In 5-4 decisions in June, the high court affirmed the rights to habeas corpus in the courts and keeping shooting irons at home. But the only common vote in those decisions was Justice Anthony Kennedy.

South Carolina the last bastion of rugged pedantry is waiting for the signature of its governor Mark Sandford allowing drivers to profess their Christian faith through faith based license plates.

So last week Scalia wrote the majority opinion for the Supreme Court's ruling against DC's handgun ban. The thing that bugs me about Scalia and his ilk -- aside from their being culturally-ossified freaks -- is that they claim to be "strict constructionists" while being little more than big, fat right-wing activists. I've quoted this Adam Cohen piece from the NYT before, but it bears repeating:

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go.

Fake news from  www.richieville.com

Crips, Bloods Hail Supreme Court Gun Ruling
Latin Kings Still Studying Decision

Richieville News Service - COMPTON, CALIFORNIA
Two notorious street gangs, the Crips and the Bloods, held a rare joint press conference here to praise yesterday's Supreme Court ruling striking down the Washington D.C. ban on handgun ownership.

Frankly, I didn't think I had to ask this question in a progressive blog, but since the Supreme Court Decision affirming the second amentment as an individual right instead of a collective right, there have been many contrarian diaries and comments that seemed to favor the conservative justices on this ruling.  I was taken aback a bit by this, but then again I didn't think I'd ever see Bill Clinton attacked here either, but I digress.

Justice Antonin Scalia: Al Gore to blame for 2000 US election mess

By Toby Harnden

The 2000 presidential election debacle was the fault of Al Gore, who should have followed Richard Nixon's 1960 example and conceded without legal action, according to the Supreme Court's leading conservative judge.

Justice Antonin Scalia"Richard Nixon, when he lost to [John F.] Kennedy thought that the election had been stolen in Chicago, which was very likely true with the system at the time," Justice Antonin Scalia told The Telegraph.

"But he did not even think about bringing a court challenge. That was his prerogative. So you know if you don't like it, don't blame it on me.

"I didn't bring it into the courts. Mr Gore brought it into the courts.

http://www.telegraph.co.uk/...

I just finished reading all 157 pages of the DC v. Heller (PDF 1.2MB), including the Scalia opinion and the dissents by Stevens and Breyer, and I have to tell everyone: the feud between an MSNBC anchor and a blogger--as much as I respect both of them--does not add up to a hill of beans compared to the startling degree to which this 2nd Amendment case has undermined the basic concept on which our democracy is founded:  

citizenship

I don't normally write smack-down diaries telling everyone to wake the heck up and stop throwing pies, but this is one of those moments where it is necessary.

DC v. Heller is not just a bad ruling.  It puts the court's imprimatur on a concept of citizenship that is fundamentally counter to the principles on which this country was founded.  It, is, a, nightmare.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

That is the entire 2nd Amendment. Everyone seems to forget that whole militia part. People seem to think the the 2nd Amendment guarantees gun rights to everyone for every purpose.

Please please please please please please please.  This diary is not intended as a forum for discussing what the Supreme Court, or society in general, should do on any particular question of gun control.  My interest is solely in what the Court did do in its decision today -- because it's highly counterintuitive and I haven't seen it discussed elsewhere.

Justice Scalia today authored the majority opinion in District of Columbia v. Heller, in which a 5-4 majority of the Court confirmed the right to keep and bear arms (RKBA) as an individual right.

As many of us argued before the decision, whether the RKBA was individual or collective was not the most important issue at hand.  The significant question was, if it is an individual right, how and when and to what extent it could be restricted.

Today, among other things, Scalia wrote that the DC law requiring trigger locks was unconstitutional.  What you may not have heard is that this was based on a relative technicality -- a fixable technicality, after which trigger locks would seem to be OK.

Well, after the Supreme Court’s stellar 5-4 decision today in D.C. v. Heller (PDF file), I am saving all my pennies for the day when Antonin Scalia decrees that I can legally possess a TOW missile – because, as his majority opinion makes clear, he gets to decide what weaponry I get to own.

Really, there's no difference anymore.

In his dissent in Boumedienne (pdf), Justice Scalia wrote:

"At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield."

When I read this, I wondered about the word 'returned', since it seems to assume that these detainees were enemy combatants when they were captured. But I didn't wonder whether 30 prisoners had, in fact, taken up arms against the US since their release. I don't keep track of these things, and the idea that people whom we had locked up for years, without justification, might take up arms against us didn't seem all that farfetched.

Researchers at Seton Hall decided to examine this claim, originally made by the Pentagon:

"we are aware of dozens of cases where they have returned to militant activities, participated in anti US propaganda or other activities through intelligence gathering and media reports. (Examples: Mehsud suicide bombing in Pakistan; Tipton Three and the Road to Guantanamo; Uighurs in Albania)"

What did the Tipton Three do?

The Tipton Three were three British citizens who were captured in Afghanistan, and suspected of being members of al Qaeda, in part because they were thought, wrongly, to be in a videotape of a rally featuring bin Laden. After British intelligence cleared them of that charge (one of the three had in fact been working at a Curry's electronics store in Birmingham when the rally was taking place in Afghanistan), they were released. And after that, they participated in the movie The Road To Guantanamo. Apparently, this counts as "returning to the battlefield".

They were interviewed for a movie about Guantanamo. That's what the Pentagon (and now Alito) considers "returning to the battlefield".

What about the Uighurs in Albania? One penned a New York Times op-ed, the other gave an interview to a reporter of the same newspaper.

"It turns out that clients of our firm, who were sent to Albania in 2006, were two of the 30. What fight had they returned to? Abu Bakker Qassim had published an op-ed in The New York Times. Adel Abdul Hakim had given an interview. These press statements were deemed hostile by the Department of Defense.

Surely the Pentagon was joking? They weren't.

So I can't speak for the other 28, if indeed there are another 28, but for the two men I do know about, giving hostile interviews constituted "returning to the fight.""

So what did the Setan Hall researchers conclude?

"Extending to the Government the benefit of the doubt as to ambiguous cases, the list of possible Guantánamo recidivists who could have been captured or killed on the battlefield consists of two individuals: Mohammed Ismail and Mullah Shazada. If an apartment complex in Russia falls within the definition of "battlefield," then as of June 2007—after the Department of Defense had already cited thirty (30) as the total number of recidivists—an additional individual, Ruslan Odizhev, can be added to the list. Thus, at most—of the approximately 445 detainees who have been released from Guantánamo—three (3) detainees, or less than one percent (1%), have subsequently returned to the battlefield to be captured or killed. Two (2) other detainees (Abdul Rahman Noor and Mohammed Nayim Farouq), while not re-captured or killed, are claimed to be engaged in military activities, although the information provided by the Government in this regard cannot be cross-checked."

The DoD has updated their list of former detainees who have "returned to militant activities", from 30 to 12, with six of the names new to the list.

All of this is public information, yet a Supreme Court Justice is using admittedly discredited government propaganda for his written opinions.

Bravo, Scalia, you are a perfect representative of your side of the ideological divide, trading in wingnut paranoia and unsubstantiated propaganda.

One of the advantages of having attended law school is that when I read judicial opinions interpreting the Constitution I almost understand them.  Not entirely, mind you, but enough at least to seem like I do in casual conversation.  Of course, one of the disadvantages of a legal education is holding more debt than some small countries; I’m probably running about neck-and-neck with Lichtenstein.  I should hang a digital debt counter, like the one in Times Square, in my living room.  

The U.S. Supreme Court today issued a landmark decision that for the first time truly interprets the 2nd Amendment.  For over two hundred years courts, law professors, and NRA members have debated the true meaning of the amendment.  What limits does it put on the right of "the people" to own handguns, rifles, assault weapons, or those groovy shoulder-fired rocket launchers, which until now were only the weapon of choice for Hezbollah, the Taliban, or other "muslin-extremists"-types?  Now, thanks to the American-conservative-"extremists" on the U.S. Supreme Court the good "people" of the United States have the right to "keep" and "bear" this type of "arm" as well.  Read all about it after the jump.

Today, the Supreme Court issued a decision in District of Columbia v Heller striking down the District of Columbia ban on hand gun ownership. Contrary to what some may think, the world has not been turned on its head, except that a rallying cry for the NRA and other forces that have used gun control as a wedge issue against Democrats for decades has been partially neutered.

The Court held that the second amendment right to bear arms is an individual, not just a collective right associated with having a state militia. But, it is still a limited right and is not totally disconnected from the concept of a militia. The court basically held that at the time of the founding the weapons that people had for personal protection are the same weapons they brought to their service in the militia. It is those weapons that the court says are covered by the Amendment.

(There have been several other diaries announcing the decision. I'm posting this with several excerpts in order to provide my take on it.)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In a 5-4 decision authored by Justice Scalia (PDF, link fixed), the Supreme Court today determined that the Second Amendment protects an individual's right to bear arms, even though no one's entirely sure what the text of the Second Amendment is:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.  For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

And, as such, there goes DC's ban on owning handguns:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upperbody strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

So, too, did the Court strike down DC's trigger lock requirements, though the majority declined to specify what sort of test could apply to restrictions to gun ownership in future cases.  Basically, Justice Scalia writes, this is our first Second Amendment case we've really done.  Give us time.  He concludes:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Justice Stevens, dissenting, argues for judicial restraint, and believes that the Founders intended to leave gun control options on the table for legislatures:

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a "law-abiding, responsible citize[n]" the right to keep and use weapons in the home for self-defense is "off the table."  Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.

... The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice -- the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

Justice Breyer, dissenting, makes something of a federalist argument, focusing on DC's evaluation of its own local problem:

I here assume that one objective (but, as the majority concedes, not the primary objective) of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.

[T]he majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District "a variety of tools for combating" such problems. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.

Both sides of the case read much more like a history lesson than an analysis of prior case law, and I'll get to the dissents in more detail as soon as I have time.  

I encourage you to read this fully before rendering your opinions, because, well, it's a Constitution we're expounding here, and this comes up in other contexts as well.  Sometimes in life (and in law), there are things that we might desire from a policy standpoint -- like certain forms of gun control, or restrictions on some election-related speech -- which are nevertheless forbidden by the Constitution.  And as liberals -- unlike the other guys -- we ought not try to pretend that the Constitution doesn't exist when it gets in the way of our policy preferences.

Oral argument transcript here.

edited to add: Via Slate's Dahlia Lithwick, this may leave a mark:

I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today's decision "will almost certainly cause more Americans to be killed." (Boumediene, Scalia, J. dissenting.)

Some of us are still naive enough to be surprised by things like this.  Supreme Court Justice Antonin Scalia apparently uses faulty information in his opinions.

Here's Antonin Scalia, asshole supreme and total Bush/GOP partisan: "At least 30 of those prisoners hitherto released from Guantanamo have returned to the battlefield." This was a statement in his dissent in Boumediene v. Bush, the case that decided that Guantanamo detainees have some constitutional rights.

And here is a retort: False, you lying sack of shit and pathetically unqualified Supreme Court hack!

Only a partisan hack like Scalia would play the fear card by announcing, as he did, that the majority's decision "will almost certainly cause more Americans to be killed," and only a partisan hack would cite, as Scalia did, testimony that originated with a party in the case before him, i.e., the administration's false claims, as an authoritative source.

Every June since 2002, Slate Magazine has engaged in an online "Supreme Court Roundup" (which they call a "Breakfast Table") during the last week of the Court's term, hosted by generally liberal legal affairs editor Dahlia Lithwick.  This year's panel includes liberal lion Walter Dellinger, moderatish-Establishment seeming ex-Slate publisher Cliff Sloan, and "good" conservative DOJ whistleblower Jack Goldsmith.

Tomorrow is the last day of the 2007-2008 term, with major decisions on gun control, capital punishment (for rapists who did not kill), and punitive damages (more on the Exxon Valdez case) yet to come.  Yesterday, nothing particularly interesting (to a general audience, at least) came out, which meant that they have been looking for filler.  That filler has been commenting on Boumediene, the habeas corpus case.

I expect that I'm not the only one reading it; this diary is for our commentary on what has happened so far, before the gun case and its controversial companions explode onto the scene.