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Heller has Failed to Throw the Gates of Gun Control Wide Open

5:36 am in Uncategorized by Bill Egnor

Non-violence - the Knotted Gun - United Nations

Non-violence - the Knotted Gun - United Nations by Al_HikesAZ

Being a Supreme Court Justice might seem like a relatively easy gig. You get to pick the cases you hear, you and a majority of your peers have the last say on any laws that come before you and you have the job for as long as you want it.

For all that it is one of those jobs where acting to aggressively will only make more work for you. If you’re a law nerd like I am, the way that the High Court tried to square the circle between obscene materials and the First Amendment is a great example of how a Court tried and pretty much made a hash of balancing two competing interests.

We are at the start of something similar with the Second Amendment. The recent decisions by the Supreme Court in Heller and McDonald opened the door for a lot of uncertainty about what is and what is not allowed in terms of regulation of handguns.

The basic idea in both cases is that the government, whether Federal, State or Local, can not outright ban the ownership of handguns. This was hailed by the gun-rights advocates as a major victory. It has been seen as the opening of the way for the removal of all kinds of gun control laws that 2nd Amendment absolutists find abhorrent.

The problem for these folks is that in overturning 40 years of settled law, the Supreme Court left lower court judges without clear guidance. When you basically say that everything they learned in law school and from other decisions is invalid you wind up with a blank sheet of paper.

It seems that judges at all levels are resisting any urge to expand on the new regime of rights that Heller and McDonald provided. There is an article in today’s Washington Post that details how winning the big fight has not turned into a wholesale revision of the gun laws in this nation.

The Brady Center to Prevent Gun Violence says that since the two landmark decisions more than 400 cases have been filed or appealed on the grounds that the Supreme Court broadened gun rights and the States have not reacted appropriately. To date they have all been decided against gun owners or gun rights advocates.

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Water Cooler – The Center for Media and Democracy is Asking for Action

4:48 pm in Uncategorized by Bill Egnor

Action Comics #1

Action Comics #1 by j_philipp


On a day when Mitt Romney is getting a lot of press for saying the corporations of people, it is probably worth remembering just how wrong headed that really is. The Citizens United case was decided on ideological grounds rather than sound legal reasoning (or frankly common sense).

The idea that a non-living entity made up of people who work for the same company is somehow the same an actual citizen is ludicrous. The amount of trouble we have seen from this is only starting.

Which is why I want to bring attention to the protest action that the Center for Media and Democracy is promoting. Basically it is a day of online action. The CMD is asking everyone that thinks the Citizens United decision was a flawed one to get out there in social media and let your voice be heard.

It is pretty simple just follow this link, the page it takes you to will let you post on Facebook, Twitter, and whatever Google’s new thing is for social media. A couple of clicks is all it takes.

That and getting out there and encouraging everyone you know to do the same. I got this information rather late in the day (hat tip to our own ubetchaiam) , but there is still time for you to make your displeasure about the unfettering of corporate cash and the kind of politicians that are being elected because of it heard.

So, take the time to speak up! If nothing else you will be able to go to sleep tonight knowing that you have done your small part in pushing back against the kind of corporate interests that would by elections anonymously.

What is on your minds tonight Firedogs? The floor is yours!

High Court Hears First Amendement Case, Decision Might Undermine Roe

5:35 am in Uncategorized by Bill Egnor

Supreme Court

Supreme Court by Matt Ortega, on Flickr

The High Court heard a case yesterday which is being argued on First Amendment grounds. The case arises from the practice of so-called “Data Mining” companies collecting the prescription history of doctors and then aggregating that information and selling it to pharmaceutical companies, who then use it to target market of drugs to specific doctors.

Now, the patients who receive these prescriptions are not known, just that that prescription was written and filled. The State of Vermont passed a law (as well as New Hampshire and a couple of other states) that prohibited this practice. They were taken to court by the data mining companies with the support of the pharmaceutical manufacturers.

Vermont created a law that requires that doctors consent to having this kind of information sold by pharmacies and data mining companies. The State admitted that part of the move to do so was an attempt to control costs. When doctors receive a barrage of marketing about name brand drugs, they are more likely to prescribe them, even if there is a generic that is just as effective. The desire to see more low cost prescriptions is the states interest in this and where they are likely to be in trouble with the High Court

Justice Ruth Bader-Ginsburg asked:

And if that’s the purpose, why doesn’t that run up against what this court has said — that you can’t lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better?”

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Water Cooler – Bigots Attempt To Impeach Iowa Supreme Court Over Gay Marriage Ruling

5:50 pm in banality of evil, jerks by Bill Egnor

gay pride parade

gay pride parade by Chris Shaffer, on Flickr

How insane is the Republican hate for gay citizens? Well, in Iowa it goes all the way to an attempt to impeach State Supreme Court Justices for ruling that the equal protection clause in the State constitution meant that gay citizens could not be denied the right to marry by legislation.

You see nearly two years ago the Iowa Supreme Court ruled exactly that. It is an unremarkable ruling that follows other states which have found that when their constitution guarantees equal protection under the law that you can not single out a group based on nothing more the bigotry and keep them from having the same rights as other citizens. Basically the reasoning in the Loving case which ended the bans on interracial marriage.

Well, the forces of intolerance could not have that. They had to stomp on those gay citizens with both feet! After all if they got married they might want to be part of the community and raise kids and be on the PTA and be just like everyone else. I have no idea why that is a problem but for the Mormon Church, the Catholic Church and whole passel of Fundigelicals it is anathema.

So out of state money poured into the last election and they managed to get three of the seven Justices removed by getting enough votes against retaining them. But that is not enough for the forces of hate. Today the Washington Independent is reporting that four articles of impeachment were brought up in the Iowa House of Representatives Judiciary committee.

All four of the remaining Justices were put up for impeachment for malfeasance in office. What was their crime? That they

“exercis[ed] functions properly belonging to the legislative and executive departments.”

Now, if they had, in fact done that it might be real trouble. The problem is that Judges can’t make legislation, can’t oversee State Departments, can’t appoint State Officers or any of the other functions of the Legislature or the Executive Branch. What they can and do actually do is look at legislation and interprets the law. That is what they did the Varnum case which found that the gay marriage ban was unconstitutional.

It is one thing to get the voters, who have the ultimate decision making power to vote out an Judge whose decision you disagree with. That is the way things are set up in Iowa and like it or not, the out of state money of the gay-haters was enough to convince enough Iowans to do so. That is all fair if unfortunate.

However it is quite another thing to use the process by which criminal acts are punished by the Legislature to try to remove the Judges who were not up for retention votes this cycle. It is tantamount to saying if one party wins a majority they can use their power to remove everyone who disagrees with them, even if it means a serious conviction against them.

Obviously the Democrats in Iowa are not taking this sitting down. From the article:

Rep. Kevin McCarthy of Des Moines, a member of Democratic leadership, immediately challenged House Speaker Kraig Paulsen (R-Hiawatha) and Majority Leader Linda Upmeyer (R-Garner) to speak against the actions taken by their caucus members.

“I issue the following challenge to Speaker Paulsen and Majority Leader Upmeyer on the proposed impeachment of the remaining Supreme Court Justices … either publicly condemn your own Republican members as well as members of the Republican Party for offering this outrageous, extremist proposal … or allow a full and open impeachment proceeding for all Iowans to consider knowing House Democrats will use every available procedural tool to shut down the Iowa House and defeat this right-wing effort,” said McCarthy.

“I suspect, however that the House Republican Leadership will do neither and instead remain cowardly silent. If that is true, then let it be clear to all Republicans where the House Republican Leadership truly stands on this issue.”

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A Small Win On Sovereign Immunity At The SCOTUS

5:28 am in Uncategorized by Bill Egnor

Supreme Court

Supreme Court by Matt Ortega, on Flickr

As part of the Friday Constitutional series we recently talked about Sovereign Immunity. Basically it is the idea that a citizen or group can’t sue the government for the normal conduct of its work, even when they disagree with that conduct. It is basically designed to keep the gears of government from being gummed up with law suits from the opposition.

Sovereign immunity can be waived by the government in question (local, State or Federal) and is in a great number of cases. This idea, while part of the Constitution had decayed quite a bit by the late 1990’s when the Rehnquist Court brought it out of the ICU and back into mainstream legal thought with the Alden v. Maine decision.

The basic issue here was whether Federal law allowed private citizens to sue state government over issues of Federal law, even against an assertion of Sovereign Immunity by the State. The premise that the Rehnquist Court used to say that a SI claim could be made and upheld by a State was based on some really shaky legal reasoning. It basically held that because the original states had sovereign immunity prior to the founding of the United States that it should have continued even when they formed a new country.

Justice Souter really went to town in his dissent in the 5-4 decision, from that dissent:

It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on “the dignity and respect afforded a State, which the immunity is designed to protect”…Apparently beguiled by Gilded Era language describing private suits against States as “ ‘neither becoming nor convenient,’ ”the Court calls “immunity from private suits central to sovereign dignity,” and assumes that this “dignity” is a quality easily translated from the person of the King to the participatory abstraction of a republican State…The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone’s description of royal dignity, which he sets out as a premise of his discussion of sovereignty:

“First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects… . The law therefore ascribes to the king … certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.”

It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government’s immunity from private suit, it is not dignity.

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Water Cooler – You Do Have The Right To Be A Jerk

6:58 pm in banality of evil by Bill Egnor

Supreme Court

Supreme Court by S.E.B., on Flickr

The Supreme Court today ruled that knuckle draggers of the Westboro Baptist Church have the right to bring their hateful message to the funerals of fallen soldiers, if they choose to. And you know what? The High Court got this exactly right.

In an 8 to 1 (we’ll get to that part in minute) ruling the Justices found that what the Phelps family and their so-called church did was constitutionally protected speech. The reason is that they are clearly making a political statement and trying to get attention to their point of view.

If our First Amendment rights are to mean anything then we have to have space for these hucksters. I call them that because while the statements they are making are constitutionally protected the reason they are making them is not to try to influence public policy but to so enrage those who see them that they do what the father of the marine who took them to court for protesting his sons funeral did, namely sue them or attack them.

The Phelps family is just filled to the brim with attorney’s including old Fred himself. When they are sued or attacked they immediately take the court. If they win their case on First Amendment rights, they then claim compensation for all the legal time that family members put in. The longer the case goes, the higher this “cost” goes. This lets them continue to fund their so called protests.
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Justice Scalia Says 17th Amendment Was Mistake For States Rights

5:54 am in banality of evil by Bill Egnor

There is nothing that the conservative bend of mind can not screw up and screw up badly. The quest by the Religious Right to overturn Roe v Wade is central example of this. Even though the nation is equally split (with a general slight edge to allowing women to control their own reproduction) the Religious Right has been pushing to have more and more conservative Justices appointed to the High Court. The goal being to finally get the five votes necessary stick a finger in the eye of more than half the nation and remove a woman’s right to choose when and if she would have a child.

This opened the door to other conservative interests and saddled us with Justices that talk about nonsense like “original intent”. I’ve written about how this is really a veiled attempt at case law nullification, as going to the original intent allows Justices who are so inclined to ignore stare decisis (settled law) and take a weed whacker to our understanding of the Constitution based solely on their impression of what the original intent of the Framers was.

All this leads us the recent escapades of the most conservative members of the Court. It is widely reported that Chief Justice Roberts was a headliner at a fund raiser for the American Standard, an ultra conservative magazine where many of the tropes which infect this nation from the right are born and repeated ad nauseam.

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Yes, Jonah Goldberg, The Supreme Court Is Supposed To Decide What Is Constitutional

6:09 am in Uncategorized by Bill Egnor

Noted Conservative Hack Jonah Goldberg posted a little article tearing into the idea that the Supreme Court is the place where we define what is and is not constitutional. He is defending the new radical Republican talking point that all legislation should have a constitutional justification attached to it. This is the Tenther’s (folks who think that the powers of the Federal Government are completely enumerated in the Constitution and the Tenth Amendment gives all other powers to the states individually) favorite meme.

They would use this thinking to end the Federal minimum wage, Social Security, Medicaid and Medicare. All the big Tea Party faves have this idea, with Joe Miller, Sharon Angle and Christine “I am not a witch” O’Donnell really leading the charge.

This idea is nuts on the surface but it is packed full of nutty goodness as you get deeper as well. The whole push for “constitutional fealty” by the Right is a ruse and always has been. The reason that they want to return to so called original intent it so wipe out two centuries of case law that does not suit their radical agenda.

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First Amendment Takes A Big Hit – Material Support For Terrorism Law Upheld

9:00 am in Uncategorized by Bill Egnor

Yesterday was a bad day for the First Amendment. The Roberts Court ruled in a 6-3 decision that the material support law was, under the strict scrutiny test, constitutional. At issue was whether human rights groups can provide educational services to groups designated as terrorist without being in legal danger themselves. The High Court found that there was sufficient State interest in this area to limit free speech protections and limit them severely.

The Center For Constitutional Rights (CCR) were part of the legal team that brought the suit. They argued that the definitions of “material support” were overly broad and vague. Some of the words at issue were “expert advice”, “training”, “service” and personnel”. These words can cover a lot of situations that have nothing to do with terrorism and everything to do with bringing terrorist groups into the political process and ending their terrorist activities.

"Originally posted at"

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No Accountability for Rendition in US, But Maybe in Canada

7:00 am in banality of evil, jerks, Torture by Bill Egnor

There is nothing about torture that is good or positive. The act itself is one of the most brutal and heinous that humans have ever committed. The affect on a society that condones torture is one of rising fear and brutality. The information (if it can be called that) gained under torture is so suspect as to be worthless. Perhaps the worst aspect is that torture, once accepted is used not only on enemies or bad people, but innocent victims as well.

On Monday the United States Supreme Court declined to hear the appeal of one such innocent victim of torture, Mr. Maher Arar, a Syrian born Canadian citizen. In 2002 he was returning to Canada from a trip abroad. At a stop over at JFK Airport he was detained by the US Government and held in solitary confinement for two weeks without access to an attorney. Mr. Arar was then deported, not to his nation of citizenship, Canada but, to Syria and put in the hands of the Syrian intelligence services, who are well known for their torture activities.

"Originally posted at"

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