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Everyone Balances

[ 1 ] June 27, 2008 |

There’s something of a curious disconnect between two passages of Scalia’s opinion in Heller:

After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.

[…]

Like most rights, the right secured by the Second Amendment is not unlimited. 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.

In other words, both Scalia and Breyer are for all intents and purposes engaged in “interest balancing.” Both are that the scope of the right to bear arms are limited by important states interests; they differ only in where they draw the line. I am inclined to believe that Scalia rather than Breyer draws it in the right place where the D.C. gun ban is concerned, but claim that Breyer’s interest-balancing is somehow unusual is odd. Especially since the majority’s balancing seems just as “free-standing” as Breyer’s.

That aside, the second passage is of course the critical one: what this decision means will be determined by how the Court applies the right in the future, and especially since the Court didn’t articulate a clear standard for evaluating future regulations we simply don’t know how this will affect more reasonable types of regulation. One could be concerned that the precedent will lie around like an, er, loaded weapon and will have much broader consequences.

Taking Scalia’s assertions at face value, though, I don’t see anything objectionable about the Court’s judgment: the D.C. gun ban is too ineffective and overbroad to justify the restriction of a constitutional right. And since I generally take the Stevens/Marshall position that dividing rights into discrete categories of scrutiny isn’t useful in itself and often fails to accurately describe what the Court actually does in practice, I’m not concerned that the Court left a lot of unanswered questions per se. Even if the Court had tried to develop a standard, the direction of the Court’s Second Amendment jurisprudence would be determined by future presidential elections and other political developments in any case.

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Law Office History

[ 0 ] June 27, 2008 |

Great point by Sandy Levinson:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

The one caveat is that I wouldn’t even say that it’s the “worst kind” of law office history; their historical analysis is actually considerably less perfunctory than most tendentious historical analysis in judicial opinions is. At any rate, it should be pretty clear that invoking originalism does little to constrain justices, not only because of irresolvable ambiguities in the historical record and the ability to use originalism’s ladder when dealing with the meaning of broad constitutional provisions, but because even on cases where a grand theory seems to produce fairly clear answers judges will ignore them if they conflict with strongly held policy preferences.

Meanwhile, Publius notes that exclusively relying on originalism would be undesirable even if it actually worked to substantially constrain judicial discretion.

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Keeping Tabs on the War in Chad

[ 0 ] June 27, 2008 |

If you’re not reading David Axe, you should be.

So what’s happening, and why should you care? In a world increasingly inhabited by the homeless and displaced, Chad is the worst-case scenario. Nearly half a million refugees make this one of the most desperate and volatile countries in the world. Here we see the enormous human toll of the ongoing conflict in Darfur, which has expanded into proxy wars between Chad, Sudan and the Central African Republic. Refugees from all three countries have sought safety in Chad. But Chad is far from safe, and even the presence of thousands of French and E.U. troops cannot guarantee the country’s integrity. Chad is bad off. But Chad could get much much worse. We should care not just because Chad is a major oil exporter, but because this crisis could spread throughout central Africa, affecting millions.

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Friday Cat (Power) Blogging

[ 14 ] June 27, 2008 |

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Upper Galilee is Lovely this Time of Year…

[ 24 ] June 27, 2008 |

So, I have received no small number of questions and e-mails in response to this post; here is a short explanation.

On Sunday afternoon, Davida and I rented a car and left Jerusalem for Ken Bahula, a bed and breakfast near Rosh Pinna. We arrived without incident, got settled, and began to make plans for visiting the various attractions of Galilee and the Golan; I was particularly interested in the various military fortifications (from 1099 to 1973) in both areas, while Davida was more focused on visiting some of the ancient synagogues around the Sea. We got up on Monday morning, but shortly before breakfast Davida fell ill. I won’t go into the details, but about 45 minutes later she, myself, and Eveline (the proprietress of Ken Bahula) were speeding towards the hospital at Sieff, about 10 miles away.

Much screaming and unpleasantness ensued, before painkillers were finally administered, a bed was found, and we began our first hand encounter with the Israeli health care system. Since the hospital “has had a bad experience” with American insurance companies, all expenses were up front, out of pocket. I don’t blame the Israelis so much as the Americans, and I don’t doubt that the bad experience was genuine, but it’s kind of a shock to have to suddenly put $1800 on the credit card that you swore you would never, ever, ever use again except for emergencies. In any case, Davida was eventually moved to a room, which she shared with a very nice young Druze woman; we assume she was nice, anyway, because she didn’t speak English and we don’t speak either Arabic or Hebrew. Indeed, the latter turned out to be rather a problem, because we found that the hospital at Sieff is staffed disproportionately by recent Russian immigrants, who have impressive medical skills but meager English language capability. As you can imagine, the situation was, at times, trying; it was very hard to figure out what was going on, and even harder to communicate what we needed. Eveline, our B&B host, was indispensable, translating when necessary and in general making things happen.

Davida stayed in the hospital Monday night, and I returned to the B&B to make various phone calls and send various e-mails. When I went back the next morning Davida was better, but not great, and went back and forth all day long. We learned from a doctor who spoke English that Davida might not be able to fly for a week, or even a month, which meant that our Thursday morning flight back to the US would have to be cancelled. That done, we considered our options, which included an extended stay somewhere in Tel Aviv, where we had some friends.

The situation had changed for the better on Wednesday morning, as Davida was discharged under instructions to take it easy for a couple of days, and come back in about a week for a check up. This is where we currently stand; we are still in Ken Bahula, are taking advantage of the extra days to do some (low key) sightseeing, and don’t know when we’ll be able to fly back to the United States. The situation was complicated by the fact that the wireless at Ken Bahula was broken for several days, which meant that we had to walk down the street and… borrow someone else’s wireless. As the area is beset by a large number of loose dogs, this resulted, on more than one occasion, in canine confrontation. Now that the wireless is repaired, we’re returning to semi-normality, given the situation.

All in all, things are okay. The hospital at Sieff was quite good, and we hope (!!) that our insurance company will present us with no difficulties in terms of reimbursement. If we had been uninsured, or if we hadn’t had a lot of free credit card space, things would have been a lot more difficult. As I suggested, the host and hostess of Ken Bahula has been of enormous help, and I heartily recommend the B&B to anyone who’s traveling in the area. Of course, we don’t know when we’ll be coming back, and Israel ain’t cheap, so it’s fair to say that not everything is hunky dory. Fortunately, Davida is doing much better, with the concern now regarding the effect of the plane ride rather than any enduring discomfort.

Will update when we have new information.

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Oh, Glorious Day!

[ 8 ] June 27, 2008 |

After having to fight hungry dogs (quite literally) to maintain an internet connection for the last several days, we finally have reliable service. Normal blogging to resume shortly.

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Supreme Court Facilitates the "Tort Reform" Bait And Switch

[ 22 ] June 26, 2008 |

Yesterday, many conservatives managed to work themselves into a lather about a plausible interpretation of the Constitution with exceptionally few real-world consequences. I noticed much less outrage about the Court’s opinion in Exxon Shipping v. Baker, which read the justice’s public policy preferences into the law with considerably less textual support in order to protect poor, defenseless Exxon in the light of the Exxon Valdez spill. (Four justices held that the corporation was not liable at all.)

The majority argues that the potentially arbitrary nature of punitive verdicts requires a fairly strict upper limit, with punitive damages virtually never permitted to exceed a 1-1 ratio with compensatory damages damages. However, the fact that punitive damages will vary to some degree is an inevitable consequence of the American system of relying on torts rather than regulation to create disincentives for corporate behavior. Limiting punitive damages with an arbitrary upper end — even in what, as even the usually sympathetic Breyer notes, were quite unusual circumstances — makes punitive damages a highly ineffective means of constraining bad behavior. That would be fine if people who agreed with the majority wanted to move to a more European-style regulation-based system, but needless to say that won’t happen.

The key to the case is that Scalia and Thomas, who haven’t joined past attempts to find limits on punitive damages in the constitutional text (and still disagree with these holdings), joined this time, presumably because of the majority’s reliance on maritime law. In dissent, however, Stevens points out quite compellingly that the limits on compensatory damages in maritime law make arbitrary upper bounds on punitive damages even less appropriate.

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Court Finds Individual Right to Bear Arms

[ 15 ] June 26, 2008 |

The only real suspense about D.C. v. Heller was 1)how exactly the right to bear arms was defined and 2)what the lineup would be. The D.C. gun ban was clearly doomed. Scalia writing the lead opinion made a broader coalition less likely, and indeed the Court split 5-4, along typical ideological lines. And yet, based on a quick scan, Scalia’s opinion wasn’t exceptionally broad — while striking down the D.C. ban it emphasized that the reasonable regulation of gun ownership was permissible.

Stevens’s lengthy and detailed dissent, meanwhile, immediately conceded that the Second Amendment conferred an “individual” right in some sense, but argued that text and history compelled the conclusion that — given the constitutionally stated purposes of the right the D.C. gun ban was a reasonable restriction of the right. Breyer’s dissent, as you might expect, was more pragmatic, focusing on what he claims to be the reasonableness of the ban.

More on the decision later.

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Pick Him, John!

[ 93 ] June 26, 2008 |

Louisiana Governor Bobby Jindal, who has been mentioned as a short-list candidate for McCain’s veep slot, reacted swiftly to the Supreme Court’s decision in Kennedy yesterday…by signing a bill to castrate all sex offenders.

Seriously.

I don’t think there’s any doubt that this is unconstitutional. But whatever the result of the sure-to-come challenge, this makes him an even more appealing choice for McCain’s veep. An exorcist who wants to go sterilization crazy? Bring him on.

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Ignorance

[ 23 ] June 26, 2008 |

Duh:

A new book from Stanford University Press called Agnotology: The Making and Unmaking of Ignorance proposes that . . . we need rigorous and careful thinking about the structure and function and typology of cluelessness. The editors, Robert N. Proctor and Londa Schiebinger, are both professors of history of science at Stanford University. Their volume is a collection of papers by various scholars, rather than a systematic treatment of its (perhaps inexhaustible) subject. But the field of agnotology seems to cohere around a simple, if challenging, point: Ignorance, like knowledge, is both socially produced and socially productive.

Ignorance is not simply a veil between the knower and the unknown. It is an active – indeed vigorous – force in the world. Ignorance is strength; ignorance is bliss. There is big money in knowing how to change the subject – by claiming the need for “more research” into whether tobacco contains carcinogens, for example, or whether the powerful jaws of dinosaurs once helped Adam and Eve to crack open coconuts.

The “more research” cliche is of course familiar to anyone in a field that claims to be even remotely empirical. There, obviously, the premise is that more research leads cumulatively to more sophisticated, better knowledge. In my introductory social science seminar, though, a fair number of students recognize — or at least think they recognize — that boilerplate, end-of-article nods to “more research” are just another species of bullshit, the sort of thing one offers up instead of a conclusive argument. Since I don’t really work in a field that relies on these rhetorical moves, I don’t feel too invested in defending them, but I usually try at least to contrast their (usually) sincerely curious spirit with the impulse behind the mendacious calls to “teach the controversy” where no such controversy actually exists.

In completely unrelated news, one of the chapters is titled “Coming to Understand: Orgasm and the Epistemology of Ignorance.”

I just don’t even know how I can add to that.

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Major League Chutzpah Of The Week

[ 94 ] June 26, 2008 |

Mr. Ralph Nader — in a good position to speak on such issues, having earned 0% of the votes of African American women in 2000 while successfully achieving his goal of handing the election to George W. Bush and all — lectures Barack Obama for “talking white.” Uh-huh.

I can’t resist quoting Mike Tomasky:

Third, and most of all, I kept noticing in 2000 that most of the people who lectured me on how corrupt Gore was and how Nader was the courageous choice were people for whom the outcome of the election, on a personal level, didn’t really matter. Some were young people, whose idealism is to be admired but who were by and large demographically insulated from some of the harsher realities of American life. But most were older, white, left bourgeoisie, tenured and cocooned in the carapace of self-righteous satisfaction, whose own lives wouldn’t change much one way or the other no matter which party won. In fact, if anything, Bush’s elevation was good for them personally, because they wouldn’t suffer directly from federal budget cuts and were probably in a bracket that benefited from his tax cuts (as was I, but at least I had the sense to vote against my own interests). Among people who were directly affected by which candidate won, Nader was seen as the ornament of frippery that he was. I promise you, you could not have gone to the corner of Lenox Avenue and 145th Street in October of 2000 and found four Nader voters. And at that intersection and the many others in America like it, by my lights, the moral case for Nader crumbles to dust.

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On Giles

[ 0 ] June 25, 2008 |

In the hubbub over Kennedy & Exxon today, little attention has been paid to Giles v. California, a case on which I worked (for the record, my SCOTUS record is now 1-0).

In an opinion by Justice Scalia, the Court today held 6-3 that a criminal defendant does not forfeit his Sixth Amendment right to confront the witnesses against him simply because he has killed the witness or otherwise kept her away unless he did so in order to prevent her from testifying.

The facts (in short) were as follows: Giles shot his former girlfriend, Brenda Avie. About a month before he shot her, they had an altercation, after which she called the police. At Giles’s murder trial, the state introduced the police report (from the month before) to prove that Giles killed Avie. Giles objected because he did not have an opportunity to cross examine Avie. The report came in under a state law that said that a person forfeited his confrontation right not only by witness tampering, but by any action that prevents a person from testifying, even if there was no legal proceeding happening at the time the defendant took the action that later kept the witness away. More traditionally, and under the Federal Rules of Evidence, a defendant forfeits his confrontation right only by keeping away a person who is already a witness.

The Court today struck down California’s law and insured that defendants get sufficient protection of their confrontation rights. But the oral argument and the written opinions set up a dichotomy that appears time and again in my work: when issues of women’s rights clash with issues of defendants’ rights, what is the progressive feminist to do? Here, the protection of defendants’ rights may make it more difficult to prosecute domestic violence cases. But any other rule would virtually gut the confrontation clause — a bedrock protection for vulnerable defendants.

In this case, I’m willing to put the extra burden on prosecutors of figuring out how to prove their DV cases in a way that does not threaten the confrontation right. Which – strangely for me – means I am more aligned with the conservatives on the Court than the more liberals.

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