25 June 2009

Taken from Simple Justice




The Supreme Court of the United States is the final arbitrator of constitutionality. It's purpose is to provide the courts of our nation, and hence the people of our nation, with clear guidance as to what the law is. The Supreme Court has failed to do so.

It's like a tease, taking cases and leading us on to believe that we will finally get some answers to questions that plague the courts. And then, a bunch of words that may (or may not) resolve one question, but leaves us with a bunch of new questions to flesh out the rule. In other words, we are no better off after the case is decided then we were before.

Of particular concern is the game being played where the court expressly refuses to determine some critical aspect of an issue, whether under the guise that it is not before them, or the record is inadequate, or "it need not be decided" for lack of a better excuse. These are extraordinarily smart people, and they have incredibly smart people supporting them. They know that their decision fails to serve any real purpose unless it covers the issue in its entirety, addresses the new questions that arise from their answer to the old question. They know what it means to provide meaningful guidance. And still, they refuse to do it.

Rothgery was a disaster of a decision. Not because of how it came out, but because it was so lacking in clarity, and so limited in scope, that it accomplishes nothing. Who needs a Supreme Court that accomplishes nothing?

The bottom line, with all due respect to the lawprofs, is that courts exist to resolve issues for real people. To do so requires clarity of thought and expression, together with a level of completeness to their decision that serves to tell regular people, not to mention us trench lawyers, how to conduct ourselves. We need issues resolved. They are not giving us answers. The Supreme Court is failing us.

In many instances, the issues taken up by the Supremes are so limited, perhaps even trivial, that we don't feel much heat as a result of their partial decision-making, or their indecipherable holdings. While certainly a warning of problems ahead, such decisions aren't important enough to society to raise voices in concern. But this week may well prove to be very, very different. This may be the week that the Supreme Court decides one of the most significant issues to impact society in decades. This may be the week of Heller.

District of Columbia v. Heller could cause a seismic shift in society. It could hold that the Second Amendment right to keep and bear arms is a fundamental constitutional right. It could hold that laws restricting this right must pass the strict scrutiny test. And it could wreak havoc upon our society if it is consistent with the half-baked decisions that the Court has issued of late.

Should the Court open the door in Heller, but fail to address the many obvious questions that arise from such a decision, it could open the door to a decade (if not more) of confusion, litigation, inconsistency and irrationality, as people, legislators and courts try to sift their way through the application of a broad rule without any real parameters.

This will cause chaos. It will throw the legal world into disarray. It will cause harm, expense and anger. It will put people into prison who may have committed no crime, but won't know because the Court neglected to provide answers to the obvious questions. It is unacceptable.

Perhaps the justices (and those who provide support) are too intelligent, paralyzed by their brilliance from providing fully fleshed-out answers to the questions before them. Perhaps they are disconnected from the need for guidance in the trenches, satisfied with their product and oblivious to the fact that those of us in the trenches who rely on their every word can't make use of decisions that beg more questions than they answer. Maybe internal politics precludes them from providing fully formed answers to pressing questions, leaving us with nothing more than a decision unworthy of the tree that was killed.

But one thing has become clear to me. The Supreme Court has failed to deliver this term. If they cannot issue a decision that provides meaningful guidance on how courts should decide cases, people should behave and other branches of government should conduct their affairs, then there is no reason for the Supreme Court to exist.

I pray they do a better job in Heller. I fear they won't.

I have to disagree with this in part since I think that Justice Stevens did a super job of following precedent and clarifying United States v. Miller, 307 U.S. 174 (1939), which is what I believe the court should have done as a unanimous opinion rather than produce the politically motivated pap which passed for a majority opinion that was produced in this decision.

Not to mention that any amendment of the Constitution's language should come through proper channels. That is the legislature, not the judiciary.

Simple Justice also says this about Heller:

To cut to the chase, the sum total of Heller is that states cannot have a blanket prohibition on the possession of a handgun within the home for purposes of self-defense by individuals who are not otherwise prohibited, such as felons and the insane. That's all she wrote.

Another point Simple Justice points out is:

During the arguments preceding Heller, I asked everyone, particularly the lawprofs, to provide any explanation of how one concludes that the Second Amendment provides a fundamental individual right, and still avoids all the implications of such a right. We now have an answer, straight from the pen of Justice Antonin Scalia:

There is absolutely no rationale to support such a conclusion, so Scalia simply announced that all the limitations that he wants to apply continue to do so and provides no explanation or rationale at all. It's a total punt.

I am less of a Supreme Court Junkie than Simple Justice since I tend to practise law and do these rants as a sideline to exorcise my demons, which is why I don't sign my name. Trust me, you could figure out who I am from what I write here if you were as intelligent as you think you are: there is a mass publication article about us which is easily googled if indeed you were as intelligent as you think you are (it came up first go for me).

The thing is that it would have been very easy to have stuck with precedent and give an opinion like that of Justice Stevens. In fact, I made a comment about how CJ Roberts said he didn't want to burden the second Amendment with baggage, which could only be achieved by following precedent.

Also, I believe that Simple Justice points out as I do, the finding of an "individual Right" outside of the militia context requires something much more substantial than the Heller decision provided. First off, what is the standard of review for this right? Scalia, as I have also pointed out, states that restrictions are allowable. In fact, I know he allows for reasonable restrictions.

Now what the fuck does "reasonable restriction" mean when the wording is "the right of the People to keep and bear arms shall not be infringed"? Sorry, but that type of language means that laws restricting this right must pass the strict scrutiny test.

What most people don't realise is that the Civic/Collective right interpretation doesn't mean gun control is a requirement: only that the Second Amendment applies to the militia organised under Article I, Section 8: not personal firearms ownership.

That means you could have a complete gun ban, or make everybody buy a gun. Well, the latter might be hard as people could say their religion prevents them from owning a deadly weapon. But still, there would be no ruling on firearms being a personal protected right or not.

On the other hand, The Justice Stevens removes the concept of "gun right" from the political arena in his opinion, which would have been a very good thing. I mean Heller could provide a field day for lawyers bent on causing mischief.

Which in some ways, Heller removes the concept of gun rights or the spectre of a gun ban from the political arena as well.

So, do you prefer pandering or precedent?

I'll stick with precedent.