Supreme Court

You may be asking, so what? After all, lots of teens get pregnant. But Governor Palin, who is so pro-life that she wouldn't let her daughters get an abortion if they were raped, also strongly believes that we shouldn't teach sex-education in schools, and would prefer we go with an abstinence-only curriculum. Never mind that the latter doesn't seem to work very well.

If Palin had her way, once your kids are done with "Abstinence Only" class, they'd then scoot off to "Science," where they'll learn all about creationism. Has she not heard that the U.S. Supreme Court has already ruled teaching creationism is unconstitutional? Or that Intelligent Design was exposed as thinly-veiled creationism in the Dover School District case?

The more you learn about Palin, the clearer it becomes just what a cave this pick was to the religious right.

Yes, there is a little bit of a thaw, as this article at the Politico points out:

"Conservatives have been comfortable with assurances that I've given them and Sen. Brownback has given them," said Olson.
A factor that weighs heavily in McCain's favor is his Senate record. Judicial issues haven't been his trademark, but he has consistently supported conservative Supreme Court nominees. In 1987 he spoke on behalf of embattled Reagan Supreme Court nominee Robert Bork, saying he supported him "without any hesitation." In recent years McCain has voted for every one of Bush's judicial nominees.
"He voted for Alito and Roberts despite the fact that he had to know they would vote to strike down McCain-Feingold," said Levey. "That addresses the concern that he might not appoint strict constructionist judges who are more likely to oppose McCain-Feingold."

While it's helpful to point that out, it doesn't do that much for me. The fact is, that supporting the president's appointments to the Supreme Court is the very least that should be expected from a Republican senator, it would be unthinkable if he didn't. Roberts was confirmed by 78 senators out of a 100 and all Republicans. Alito drew one Republican defection, Lincoln Chaffee, who later on became officially the Democrat he already was.

So yeah, no points from me for McCain's stock vote on the Supreme Court. Far more important was his service as part of the gang of 14 to derail many of the Bush appointees in trade for Democrats willingness to appoint a few. And it's exactly that crossing the aisle trademark that has conservatives edgy. Oh they'll come around, but warm is a relative term.

Gun-rights advocates announced plans yesterday to challenge restrictive gun laws in two of the nation's biggest cities in the wake of the landmark Supreme Court ruling in District of Columbia v. Heller. The Court ruled that Washington, D.C.'s ban on handgun ownership or possession within the District violated the Second Amendment's guarantee of the right to bear arms. The Illinois State Rifle Association and the National Rifle Association moved almost immediately to challenge gun laws in Chicago and San Francisco, respectively. Chicago's gun ban is similar to the one overturned in Washington, banning possession and sale of handguns within city limits. San Francisco bans possession of handguns on county property including parks, schools, and community centers.

The lawsuits are likely only the first in a new spate of gun-rights legal challenges to gun laws all across the country. The Supreme Court's decision was the first time in its history that the Court had ruled on the issue of whether the Second Amendment protects an individual or collective right to own a gun. The Illinois lawsuit borrows from the wording of the Court's decision indicating that the right is individual.

"By banning handguns, Defendants [the City of Chicago] currently maintain and actively enforce a set of laws, customs, practices, and policies under color of state law which deprives individuals ... of their right to keep and bear arms."

The issue of gun rights has injected itself into the presidential campaign, with both Sen. McCain and Sen. Obama embracing the Court's decision. But the lawsuit in Chicago could be a sticky issue for Sen. Obama as the campaign goes on. Chicago is Obama's hometown, and while a member of the Illinois State Senate, Obama cast several votes against the interests of gun owners, including voting twice to bar homeowners who owned a gun for self defense from being charged with violating local gun laws if they used the weapon for that purpose. As the Chicago lawsuit progresses, Obama may be forced to take a position on his city's gun laws that could put him at odds with his new found support for an individual right to bear arms.

Unlike Justin, I think the Heller case overturning the DC gun ban has far larger impact than just Washington DC itself. Scalia and the other four conservative justices left that open for question for now, based on my limited understanding of the opinion. We'll know soon enough, when the inevitable lawsuit against the Chicago ban winds its way up.

Of interest to me was the potential political impact. Obama was clearly scared as hell that the liberal wing of the court was about to eviscerate his chances of winning in November. And yes, a decision nullifying the 2nd amendment would have done so. If you don't believe me, ask Bill Clinton and the many, many outgoing members of the 103rd congress why they think they lost big in 1994. So yes, this was a big deal, as illustrated by Obama's lack of straight talk on the matter:

When Obama has been asked on multiple occasions to weigh in on the D.C. gun case he has regularly maintained that the Second Amendment provides an individual right while at the same time saying that right is not absolute and that the Constitution does not prevent local governments from enacting what Obama calls "common sense laws."

Although he has been willing to describe his general views on this topic, Obama has sidestepped the question of whether the ban in the nation's capital runs afoul of the Second Amendment.

Asked by ABC News' Charlie Gibson if he considers the D.C. law to be consistent with an individual's right to bear arms at ABC's April 16, 2008, debate in Philadelphia, Obama said, "Well, Charlie, I confess I obviously haven't listened to the briefs and looked at all the evidence."

I'm very interested in how Obama will play this now that he has dodged this bullet, no thanks to the four liberal justices who dissented. My guess is that he will say as little as possible and again call for common sense gun laws and try to appear as not a threat to the rights of gun owners. Also of interest is that among the grass roots left there is a new appreciation for the 2nd amendment, but worrying about Dick Cheney's shadow government perhaps gave them an appreciation of what it was all about in the first place. John McCain of course, wasted no time.

"Today's decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia's ban on handguns and limitations on the ability to use firearms for self-defense.

"Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today's ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is a fundamental right -- sacred, just as the right to free speech and assembly.

"This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms."

... shall not be infringed!

Well, maybe.

The Supreme Court has struck down as unconstitutional the D.C. law banning handguns. "The District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Scalia's majority opinion in the 5-4 decision divorces the right to bear arms from the militia portion of the 2nd Amendment, thereby tying an "individual right to possess and carry weapons" to an inherent right of self-defense. This profound interpretation provides the Court's first unequivocal decree on the 2nd Amendment.

However, the court cautions several limitations. First, just as it does not read the 1st Amendment "to protect the right of citizens to speak for any purpose" (i.e., yelling fire in a theater), it likewise does not read the 2nd Amendment "to protect the right of citizens to carry arms for any sort of confrontation." Restrictions will still be permitted with regard to felons, the mentally ill, school zones, etc.

Far more importantly, however, is the recognition that D.C. is a federal entity - not a state. And the Court seems to imply that the 2nd Amendment has not hereby been incorporated such that it applies to the states. Hence, the case may not provide binding precedent nearly anywhere else in the nation. We will have the right under the 2nd Amendment, but the Court may not enforce the amendment beyond the federal government. (This seeming injustice is actually constitutionally correct, as the Bill of Rights did not originally apply to the states, but only to the federal government. However, as the Supreme Court has enforced other provisions of the bill of Rights on the states, it would seem arbitrary and unjust to deny this right - unless all other rights were similarly rescinded ... an unlikely event.)

Expect an explosion of litigation on this issue in the near future - and watch to see if the Court is eager to take up those cases and expound upon today's ruling.

If you were wondering, red meat like this is why governor Bobby Jindal is rising to the top of conservatives list as someone to watch. From Red State.

On the heels of today's SCOTUS decision in Kennedy v. Louisiana barring the death penalty for sex offenders, Gov. Bobby Jindal released a statement calling the ruling an "affront to the people of Louisiana" - and what's more, vowing to do whatever possible to amend the state's laws in order to maintain the death penalty for child rape.

But that's not all he did.

Today, Gov. Jindal signed the "Sex Offender Chemical Castration Bill," authorizing the castration of convicted sex offenders. They get a choice: physical or chemical. Oh, and they don't just get castrated and leave - they still have to serve out their sentence.

The Supreme court said that death was out of proportion to the crime. I wonder if this is proportionate enough for them. This issue hasn't been on the radar screen of the public consciousness until this ruling, and I wonder if it won't have the adverse effect of triggering many laws targeting child rapists. This is an election year after all, and it's quite tricky (and suicidal) to oppose politically.

In a first of its kind ruling, the District of Columbia Circuit Court of Appeals has overturned the detention of a Guantanamo Bay detainee, ordering the government to give him a new hearing or release him. The detainee, Huzaifa Parhat, a Chinese Uighur captured in Afghanistan, has been held at Guantanamo for more than six years on suspicion of joining a Chinese Muslim group and attending an al-Qaeda training camp. The court's ruling was handed down last Friday.

Parhat petitioned the D.C. Circuit court under the protocol established by the Military Commissions Act of 2006, which the Supreme Court ruled unconstitutional last week. Under the act, the D.C. Circuit is the court designated by Congress to review so-called combatant status review tribunals. In its ruling, the Supreme Court said that Congress had improperly suspended the writ of habeas corpus in the case of the detainees, granting them access for the first time to U.S. civilian courts. But Parhat's case seems to confirm that the process set up by Congress in the act can indeed work; and that the Supreme Court's decision to essentially shut down the review process was premature.

David Remes, a lawyer representing several Guantanamo Bay detainees, said that the decision would be significant in the cases of other detainees pending before various federal courts. "[The decision] makes clear that the government can be required to transfer or release an individual if it is determined that the individual has been improperly classified as an enemy combatant." This is what Congress intended in setting up the review system. But the decision may also, ironically, be the last of its kind, as no one is really sure what form the new court review process mandated by the Court will take. The Supreme Court, in attempting to extend more legal rights to Guantanamo Bay detainees, may have actually brought a system capable of impartially weighing the evidence against them to a screeching halt.

The Supreme Court gave illegal immigration opponents and the Bush administration a key victory today when it rejected a case brought by environmental groups challenging the construction of a section of the new border fence with Mexico. The case challenged the government's right to waive environmental requirements in the construction of a two-mile stretch of the fence near Naco, Arizona. Environmental groups said that the fence jeopardized endangered species that cross the border in the area to mate.

Last year, Homeland Security Secretary Michael Chertoff utilized his power to waive the regulations, under an authorization in the Real ID Act of 2005, to allow the construction of the fence to continue on its rapid pace. About 331 miles of fencing have been constructed in California, Arizona, New Mexico, and Texas, including the disputed two-mile section. Chertoff has used the waiver authority a total of three times, including once to waive seven separate federal regulations for a section of the fence near San Diego, CA. The Department of Homeland Security issued a statement praising the decision.

"As fence construction proceeds, the department will continue to be a good steward of the environment, and consult with appropriate state, local, and tribal officials."

As the Justice Department struggles to cope with the new realities imposed by the Supreme Court's decision in Boumediene v. Bush and Al-Odah v. United States, which granted terrorist detainees at Guantanamo Bay the right to challenge their detention in federal court, government lawyers are requesting time to prepare new case documents against the detainees.

Lawyers representing the detainees cried foul and accused the government of trying to change the evidence against detainees in the middle of the game. "It's sort of an admission that the original returns were defective," said attorney David Remes, who represents many detainees. "It's also an admission that the government thinks it needs to beef up the evidence." Another defense attorney, Jonathan Hafetz, said, "It's a totally fishy maneuver that suggests that the government wants, at the 11th hour, to get its ducks in a row."

But the charges and summaries of evidence against the detainees were prepared for presentation to military tribunals under the Military Commissions Act, which the Court found unconstitutional. Those tribunals had very different rules of evidence and standards of proof than the civilian federal courts, and federal prosecutors want to present their strongest and best evidence to make sure they meet those new higher standards. The Justice Department declined to comment on the request, which is pending before a federal court.

If the Justice Department loses the right to resubmit evidence against the detainees, it will increase the likelihood that the detentions of some of those held at Guantanamo Bay will be overturned.

John McCain, today:

The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country. Sen. Graham and Sen. Lieberman and I had worked very hard to make sure that we didn't torture any prisoners, that we didn't mistreat them, that we abided by the Geneva Conventions, which applies to all prisoners. But we also made it perfectly clear, and I won't go through all the legislation we passed, and the prohibition against torture, but we made it very clear that these are enemy combatants, these are people who are not citizens, they do not and never have been given the rights that citizens of this country have. And my friends there are some bad people down there. There are some bad people. So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases. By the way, 30 of the people who have already been released from Guantanamo Bay have already tried to attack America again, one of them just a couple weeks ago, a suicide bomber in Iraq. Our first obligation is the safety and security of this nation, and the men and women who defend it. This decision will harm our ability to do that.

Despite the Time articles sentence about a day of consideration, there is no reason to doubt that this is the real McCain, speaking from his gut. This is the voice of a senator who is ticked off that a properly vetted and passed bill made it through into law and was just voided by the Supreme court.

After all, as noted by Scalia in his dissent:

1. The Supreme Court overruled the procedure in Hamdan, but made it clear that the congress could pass a law firmly stating that they wished to deny habeus corpus if that was their intent.

2. The congress immediately did so affirm that they wished to deny.

3. the Supreme court says, "Psych!"

On a personal level, I'm sure McCain was thinking of all the work that went into pulling that together and passing it. And of course he makes it clear that there are very real consequences here.

On a political level, directing American anger (and Americans are very angry right now) toward unaccountable judges (Chief Justice Roberts words, not mine) is very useful right now.