Obama Does a Backflip on Mental Health Abortions

I’m getting a little woozy over here; the guy’s flipping like flapjacks this week. Obama has clarified his earlier statement on abortion to a Christian magazine. When he said:

“Now, I don’t think that ‘mental distress’ qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term.”

he actually meant:

“My only point is that in an area like partial-birth abortion having a mental, having a health exception can be defined rigorously. It can be defined through physical health, It can be defined by serious clinical mental-health diseases.”

Clear?

Obama “Puzzled” Over Flip-Flop Observations

Obama just can’t believe that after flipping on FISA and public financing and flopping on guns and abortion people would think him apt to flip-flop on Iraq too. He continues to claim that his statements on Wednesday are perfectly consistent with what he said last year.

“I was a little puzzled by the frenzy that I set off with what I thought was a pretty innocuous statement,” he said on a flight from Montana to St. Louis. “I am absolutely committed to ending the war. I will call my joint chiefs of staff in and give them a new assignment and that is to end the war.”[...]

Obama said he did not make a mistake on Wednesday with his choice of words in describing his Iraq position — even though he called a second news conference a few hours after his initial comments to clarify his stance.

He laid the blame with reporters.

Yeah, don’t those reporters know which side they’re supposed to be on? How dare they report on the exact words that are coming out of Obama’s mouth? The Reuters reporter, at least, doesn’t seem to appreciate the charge and pokes a little fun at Obama:

“I’m surprised at how finely calibrated every single word was measured. I wasn’t saying anything I hadn’t said before, that I didn’t say a year ago or when I was a United States senator,” said Obama, who is still a senator from Illinois.

Such arrogance.

Obama Abortion Flip-Floppery; NARAL Rode Hard and Put to Bed Wet

And to think, I feared that things would be less fun after the primaries were over. This went out on the Wire Service That Must Not Be Named about an hour ago. Allah caught it.

Obama moved a little to the right on abortion—while talking to a Christian magazine, of course. Gotta tailor the message for the audience.

In an interview this week with “Relevant,” a Christian magazine, Obama said prohibitions on late-term abortions must contain “a strict, well defined exception for the health of the mother.”

Obama then added: “Now, I don’t think that ‘mental distress’ qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term.”

NARAL, the pro-abortion group that upset Democratic feminists in May by choosing to endorse Obama instead of Clinton, must be feeling a little used. That doesn’t stop it from asking for more:

The official position of NARAL Pro-Choice America, the abortion rights group that endorsed Obama in May, states: “A health exception must also account for the mental health problems that may occur in pregnancy. Severe fetal anomalies, for example, can exact a tremendous emotional toll on a pregnant woman and her family.”[...]

“Sen. Obama has consistently said he supports the tenets set forth by Roe, and has made strong statements against President Bush’s Federal Abortion Ban, which does not have an exception to protect a woman’s health,” the organization’s statement said.

Allah thinks Obama’s only talking about late-term abortions. Click over to read his unnecessary slam at Professor Doug Kmiec and to answer his exit question: what must Clinton think now?

Update: Allah responds in the comments (at Ace’s), writing:

Kmiec’s apologias for Obama on abortion have been beyond embarrassing. If he wants to support the guy because he’s against the war, fine, but he should lay off trying to paint him as though he’s some kind of social con. It’s Sullivan-esque.

Okay, so maybe I was the one making an unnecessary slam. Sorry. Just didn’t like dragging Kmiec back onto the stage. Per Hollowpoint’s update, I see that Kmiec’s still putting himself there.

Incidentally, I don’t think his Obama support is about the war. I think it’s about McCain Derangement Syndrome. A man of Kmiec’s intelligence can’t just live with the cognitive dissonance. He has to attempt to reconcile his desire to vote against McCain with his conservative principles. The result is this weird support for Obama where all his explanations and excuses seem to ring false.

Court: Google Must Turn Over YouTube Logging Database

Viacom may soon have access to YouTube user IDs, IP addresss and details of every video they’ve ever watched, thanks to yesterday’s district court order. Viacom is suing Google for copyright infringement in more than 150,000 video clips.

The US court declined Viacom’s request that Google be forced to hand over the source code of YouTube, saying it was a “trade secret” that should not be disclosed.But it said privacy concerns expressed by Google about handing over the log were “speculative”.

The ruling will see the viewing habits of millions of YouTube users given to Viacom, totalling more than 12 terabytes of data.

Viacom said it wanted the data to “compare the attractiveness of allegedly infringing video with that of non-infringing videos.”

So Google’s secrets, most especially its advertising formulas are safe. Not so much YouTube users’ information.

I still don’t see why YouTube isn’t protected under the safe harbor provisions of the DMCA. For that matter, what interest does Viacom have in “comparing the attractiveness” of all video clips? If the case turns on direct infringement, Viacom needs to know only about the viewing of allegedly infringing videos. On the other hand, if the case is about vicarious or contributory infringement, YouTube should fall under the DMCA.

Background:
Openblogger Krakatoa wrote about the case in May.
Ace wrote about it last year when the parties were still trying to avoid litigation.

Another Justice Stevens Error Spotted

This one is found by Professor Volokh and is quite nitpicky. A disagreement between Justices Scalia and Stevens boils down to the meaning of the word “it” in an 1876 Supreme Court case, U.S. v. Cruikshank. As you read the following, keep track of what the word “it” is referring to:

The right there specified [in the indictment] is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.

It seems clear to me (and to Justice Scalia and Professor Volokh) that “it” refers to “the right there specified…’bearing arms for a lawful purpose.’” Justice Scalia used Cruikshank, in part, to show a long-standing recognition that the Second Amendment protected an individual right to firearms from Congressional interference. But Justice Stevens disagrees. He says, contrary to the words right out of the Cruikshank excerpt which you just read, that only the indictment used the phrase “bearing arms for a lawful purpose” and that those words were not adopted by the Court to describe the right protected by the Second Amendment.

The majority’s assertion that the Court in Cruikshank “described the right protected by the Second Amendment as ‘”bearing arms for a lawful purpose,”‘” is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment’s description of the right.

Professor Volokh is charitable about the mistake and includes a bit of good advice. Perhaps future Stevens’ clerks will even take it:

Maybe I’m missing something here, but I don’t think I am: It seems to me that the dissent just flatly misread Cruikshank, and in an important way — and didn’t correct this despite Justice Scalia’s express and accurate response in footnote 22 of the majority.

So this is one reason I tell my students: Never rely on an intermediate source’s characterization (or even quotation) of an original source; always read, quote, and cite the original source. (True, sometimes when the intermediate source is authoritative — for instance, is a majority opinion — its mischaracterization of an original source may itself create binding law. [As in the Hamdan case as I shared last week. --Gabe] But the original source still says what the original source always said.)

I promise this post will be the last one of these I put up, at least for Kennedy, Heller, or Boumediene. At some point this just becomes cruel and tends to subject the judiciary to more scorn than it deserves. While Volokh and others are looking through the opinions so as to understand what the justices did, I find myself looking only to find what the justices did wrong. That’s not really helping anyone.

Justice Kennedy, Wrong on Facts, Wrong on Law

Last week I told you about Justice Stevens’ factual mistakes in Heller and Hamdan. This week Justice Kennedy is under the microscope in Kennedy v. Louisiana, thanks to the military justice blog CAAFlog.

Dwight Sullivan at CAAFlog noticed that Justice Kennedy flubbed the facts about federal capital punishment. Kennedy wrote that the death penalty for child rapists was only available in six state jurisdictions and not available under federal law. That’s not true, and in fact such punishment is a recent occurrence, driving another nail into Kennedy’s false claims that the U.S. is trending away from the death penalty for child rapists.

But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six.Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that “[u]ntil the President otherwise provides pursuant to” UCMJ article 56, “the punishment which a court-martial may direct for an offense under” the amended UCMJ article 120 “may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.”

Sullivan sounds a little peeved that nether side made mention of the law. When asked, defendant’s counsel said “We just assumed it was defunct…We figured if somebody in the government thought otherwise, we’d hear about it.” Sullivan’s discovery made it in the N.Y. Times today.

Kennedy’s legal problem is that he was more than willing to adopt a squishy standard like “evolving standards of decency.” He just refused to admit that the evolution of law in the U.S. is towards executing child rapists.

Policy Debate: Sex Offender Registration and Mandatory Life Sentences

Professor Orin Kerr writes, “This is bad.”

If you’re a registered sex offender, failing twice to properly register your home address is really dumb. But if you’re a state legislator, punishing that with a mandatory life sentence — as Georgia has done — is even dumber.

The background to the case is here and it raises some good questions. I’ll summarize:

Georgia law requires sex offenders to register—on a continuous basis—information including identifying characteristics, like height and weight, employment activity, and most especially residence. If the sex offender is living too close to schools, churches, or other places where children are likely to be, he is required to move. He then has 72 hours to report his new residence and to move there. Failure to comply is considered failure to properly register as a sex offender. Innocent mistake (e.g. typos on the form) is not an excuse. On the second violation, the law imposes mandatory life imprisonment.

Here, Cedric Bradshaw is a pedophile and a dumbass. When he was 19 he had sex with a 15 year-old. But he served his time and was released, subject to sex offender registry. He then was imprisoned for six months when he gave an invalid address on his first registration. After that, he had to move twice when it turned out the family members he was living with (a sister then an aunt) lived too close to areas where children were likely to be. He finally found a place, but transposed two numbers in the address. He also failed to move into the new place within 72 hours. He was caught and prosecuted for failure to properly register as a sex offender. The trial judge ruled that he had no discretion to do anything other than sentence Bradshaw to life imprisonment. The case is currently before the Georgia Supreme Court.

Good law or bad law?

Does your opinion change if the sex offender is on the registry for circumstances less horrific than statutory rape? Something like this:

Drunk frat boy grabs Hooter’s waitress’ boobs and is convicted of misdemeanor sexual battery (no registry). 2 years later, while celebrating his college graduation, he does the same thing. Now it is felony sexual battery and a lifetime on the registry with a life sentence hanging over his head.

Related: The trial judge in this case is a rather unimpressive specimen. At sentencing, he said:

“I’ll leave it to the super Legislature, the Supreme Court, to decide the issues of constitutionality,” he said.

That sounds like an abdication of duty to me. Of course, trial judges are elected in Georgia.

Obama Was For Gay Marriage Before He Was Against It Before He Was For It Again

What a newb.

Democratic presidential candidate Barack Obama, who previously said the issue of gay marriage should be left up to each state, has announced his opposition to a California ballot measure that would ban same-sex marriages.In a letter to the Alice B. Toklas LGBT Democratic Club read Sunday at the group’s annual Pride Breakfast in San Francisco, the Illinois senator said he supports extending “fully equal rights and benefits to same-sex couples under both state and federal law.”

“And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states,” Obama wrote.

[...]

“Senator Obama opposes all divisive and discriminatory constitutional amendments such as the one in California,” [Obama Campaign Spokesman] LaBolt said.

At first I thought he was just saying that it should be up to the states, but that he personally would vote against a marriage ban in his state. But LaBolt’s statement forecloses that possibility and turns this into a genuine flip-flop. What’s surprising is that this is a flop to the left.

Ed Morrissey has thoughts on what Obama’s constant flip-floppery means:

There are only three possibilities for why Barack Obama has had to change his mind on almost every policy he has mentioned in this campaign:1. He’s a liar who says what each audience wants to hear.
2. The election debate has changed his perspective on every issue.
3. He has no clue on any of the issues.

Another possibility is that he isn’t in control of his own message. For example, how do we know that Obama actually wrote the letter to the LGBT Democratic Club or even read it? How do we know he approved LaBolt’s statement or that it accurately reflects Obama’s genuine beliefs? The answer to both questions is: we don’t.

We generally expect that statements issued in a candidate’s name come from the candidate, and whether they do or not, we impute the substance of the statement to the candidate. In Obama’s case we’ve seen a pattern of conflicting statements in his name. I suspect that happens when different parts of his staff want different things. The left hand doesn’t know what the far left hand is doing and Obama is too green to exercise meaningful control over his own office. The result is all these “distracting” and “inartful” statements.

In today’s example, I’d bet my diploma that Obama hasn’t given the issue of gay marriage much thought. But his staffers probably obsess over it, with some of them wailing about moderates in the general election and others, especially gay staffers, screeching about taking an even more radical position. Which side is more likely to be given the task of drafting a letter to a San Fran gay group?

Totten Travelogue: Albania, Montenegro, Serbia, Kosovo

Michael Totten describes part of his journey in Eastern Europe:

“My name is Michael,” I said to a young boy. “What’s yours?”“Mario,” he said.

“Mister, where are you from?” said a little girl.

“America,” I said.

“Yay!” The kids cheered.

Albania is fanatically pro-American, which is perhaps a bit counterintuitive to many Americans since it is at least nominally a Muslim-majority country. The conventional assumption that Muslims hate Americans everywhere isn’t true.

Click over to read the whole thing, with pictures! I especially like his improvised sign-language for “danger.” I would have freaked out too.

The Federal Marriage Amendment is Back; RELATED: McCain Courts Social Cons

I don’t have a legacy media link on this, but a few lefty blogs are talking about the reintroduction of the Federal Marriage Amendment in the Senate on Wednesday. They are tittering because Senators Vitter and Craig are cosponsors. Because of course, to leftists, gays are monolithically in favor of gay marriage. Erm, not to imply anything about Vitter and Craig. Heh.

UPDATE/CORRECTION: ::Sigh:: I see that Allah’s laughing about it, too. Also, Britt in the comments correctly points out that Vitter was in trouble for lady hookers, not laddy hookers. My bad.

Original Post Continued:
Anyway, social cons who support the federal amendment will have to be content with knowing that a few senators haven’t forgotten their issue. It’s not likely to get out of committee, thank God.

Meanwhile, John McCain sat down with social conservative leaders in Ohio in an effort to reassure them that he’s better than Obama. I think he’s striking back at Obama’s similar effort two weeks ago.

And, according to participants, [McCain] indicated that he would take seriously their requests that he choose an anti-abortion running mate and would talk more openly about his opposition to gay marriage — a pledge he carried out later in the day by endorsing a ballot measure in California to ban gay marriage.”It was obvious there were a lot of changed hearts in the room,” said Phil Burress, who led Ohio’s anti-gay-marriage ballot measure in 2004. “We realized that he’s with us on the majority of the issues we care about.”

[...]

Many conservatives have been upset that McCain opposed a federal constitutional amendment banning gay marriage, a position he said he took because he believes states should decide the issue. At the meeting, McCain sought to reassure conservatives by emphasizing his work on behalf of an anti-gay-marriage measure in his home state.

No one is sure how important the gay marriage issue was in 2004. Pro-traditional marriage groups claimed that the presence of so many state amendments and initiatives made a difference for the presidential and state races. But, exit polls showed that it wasn’t high on the list of the average voters’ concerns. I suspect that the issue is of more importance to social conservatives than the rest, and that McCain will need those voters.

Peggy Noonan: “That’s my boy.”

Noonan has a must-read op-ed today about McCain’s media problem, but I suggest that those who have already decided that Obama will be president should skip it; she’s extremely pro-McCain.

She starts:

The big political headline this week, of course, involves John McCain’s endless and humiliating attempts to placate Mitt Romney by bowing to demands he hire his operatives and pay his campaign debt. So far all he’s got is a grudging one-sentence endorsement from that rampaging rage-aholic Ann Romney.Oh wait, got confused, that’s Barack Obama and Hillary Clinton.

Like frogs in a pot, we tend to become accustomed to some pretty outrageous things as the campaign season heats up. The slow accumulation of extreme positions or idiotic blunders is overlooked simply because it’s Business As Usual. “Of course Candidate A has larger-than-life mistakes,” says the voter, “she’s a larger-than-life person! And her opponent is the same, anyway.” Hell, that explains John Kerry’s entire candidacy. Half the country woke up one morning in December 2004 and thought, “what the hell was I thinking,” although they’d never admit it in mixed company.

During campaigns, candidates have to do something so unusual that voters are jolted out of their adrenaline high and take notice of just how far from the ordinary things have strayed. Howard Dean’s “YEEAAARRGH!” comes to mind. A whole bunch of Democratic voters realized that night that Dean is a nutcase; they didn’t actually know anything new about him. Rather, they realized just how far from acceptable the race had strayed.

And that’s why the so-called “October surprise” is so important. I was quietly banging my head on my desk when Obama’s Rev. Wright issue broke in the spring. That would have been the perfect story to get voters’ attention in October. It’s just the sort of thing that would cause even Democratic voters to pull back from the brink. But now it’s come and gone and been rationalized away. Pfleger and Meeks were just Business As Usual, and so too Ayers. What Democratic voters and Obama-leaning independents need is a slap in the face and a stern, “Look at what you’ve done!” But I don’t think it’s going to happen from any future revelations about Obama’s associates. They’ve already reached a nice, familiar boil on that issue. Throwing another log on that particular fire isn’t going to change anything.

So I’m pleased that Noonan is pointing out another surreal moment in Election 2008. Hopefully, some voters will have a waking moment: “What the hell? Is he actually paying off Clinton’s lenders in order to buy her supporters?” The answer is “Yes” and “No, this is not Business As Usual.” The only thing distinguishing this from corruption is the fact that Clinton hasn’t explicitly promised to deliver the goods.

We need more of the same, especially in the two months prior to the election. My money is on the presidential debates. We all know that Obama’s going to want zero debates and McCain will want as many as he can possibly get. I firmly believe that Obama will open his mouth one day and tell us what he really thinks. He’s too inexperienced not to make the politician’s most obvious mistake. To most effectively take advantage of this, McCain needs to be grabbing issues that resonate with voters.

So, as the summer goes on, oil will increasingly be on voters’ minds. McCain has already staked out a strong position on oil, one that has broad appeal for both conservatives and increasingly for liberals. (I’m not saying he couldn’t improve on ANWR, mind you). Now he just needs to lay in wait for Obama to say something truly outlandish—something that conforms with his true beliefs, but about which he has thus far managed to prevaricate.

The War on Terror is another issue that fulfills the same criteria. McCain already has the popular position, especially in key states. He needs to keep the Iraq War in the news and in the minds of voters long enough for Obama to tell us just how he really feels about it. The presidential debates are a perfect opportunity. They’re not too early that voters have time to adjust. And with a candidate as radical as Obama, there are plenty of issues that provide fertile ground for a trap.

Michael Totten: Kosovo is Not an Islamist Beachhead

Earlier this year, during the events surrounding Kosovo’s declaration of independence, I wrote that we should recognize the newly independent country and that I was pleased when President Bush did so. Whatever the circumstances of our U.N. or NATO commitment, the power to recognize foreign sovereigns is securely within the president’s authority and was appropriately used in this situation. I wrote:

My default position when it comes to things like this is to support democratic freedom movements. You’re going to have to overcome that presumption in order to convince me that Kosovo’s independence is a bad thing. You’re going to have to go a step further than that to persuade me that we should actively discourage Kosovo’s independence.

At the time, several commenters cautioned that Kosovo would be another majority Muslim nation and that it would therefore be a source of trouble for us and especially for Europe because Muslim countries have tended to radicalize in the last few decades. I disagreed, saying:

I think it is a mistake to view Kosovo’s independence through our Clash of Civilizations Glasses. It is majority Islamic, but these people are Muslims like the British are Anglican. They’re not regular mosque-goers and the salat is not generally followed, much less the hajj. (For example, the rioters yesterday were largely drunk, a big no-no in Islam.) There is no movement to create a sharia court system. Yes, yes, the last time I wrote that, I was told, “Not yet.” The possibility that Kosovo may one day get cozy with Wahhabism doesn’t, in my mind, justify supporting the subjugation of these people by a different religious and ethnic group–especially not one that hasn’t had actual control of the region for close to 10 years. If they want their own country, good for them.

I’ve got to confess to feeling some indecent pleasure that Michael Totten writes substantially the same thing in next month’s Standpoint Magazine. He’s a hell of a lot more credible than me. Here are the first and final paragraphs:

On February 17, 2008, Kosovo declared independence from Serbia. Some are concerned about what NATO, the United Nations, and the European Union have nurtured there since the military and humanitarian intervention in 1999. James Jatras, a U.S.-based advocate for the Serbian Orthodox Community, put it bluntly last year when he said Kosovo was a “a beachhead into the rest of Europe” for “radical Muslims” and “terrorist elements.” It’s an assertion without evidence. “We’ve been here for so long,” said United States Army Sergeant Zachary Gore in Eastern Kosovo, “and not seen any evidence of it, that we’ve reached the assumption that it is not a viable threat.”[...]

The danger in Kosovo isn’t that international peace keepers are nurturing a jihad state. Rather, a premature withdrawal may lead to a resumption of the fighting between Serbs and Albanians that they moved in to stop in the first place.

As the man says, go read the whole thing.

Justice Stevens Should Be Keeping a Closer Eye on His Clerks

David Hardy noticed some factual errors in Justice Stevens’ Heller dissent:

Comment on to previous post points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: “Upholding a conviction under that Act, this Court held that…”Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted — commentators noted this was pretty suggestive the court hadn’t bothered to read Miller before citing it. First thing you look for in reading a case is what happened below, and what the Court do to that. Very first thing.

I’d add that at 41 he refers to:

“In 1901 the President revitalized the militia by creating the ‘National Guard of the several States,’ Perpich 496 U.S. at 341 and nn. 9-10.”

Reading that part of Perpich v. Dodd: It says in 1901 President Roosevelt called for reforming the militia. He didn’t create the National Guard (where would he have had the authority?)

On the next page Perpich says that Congress in 1903 enacted the Dick Act, which created the “National Guard of the Several States.”

Certainly they aren’t earthshaking mistakes; correcting them wouldn’t change Stevens’ conclusions. But they do indicate carelessness from him and from his clerks. We all know he’s not the first jurist to make small mistakes of fact, or even large ones. But Hardy’s post put me in mind of a notable error in one of his more important recent opinions which made a complete mess of international law.

In Hamdan, Stevens wrote the majority opinion which rested in part on the preposterous idea that the U.S. conflict with Al Qaeda is global, but “not of an international character.” Later, it turned out that conclusion was taken verbatim from an amicus brief by some law professors who conveniently elided a critical quote from an international law treatise:

Did the Court engage in a deliberate manipulation or distortion of authorities, as it seem to be the case? Well, no, but that actually doesn’t make things any better. To my surprise, I found out that the Court’s miscitation and misquotation of the Commentary in fact fully reproduces the exact same error in citation and the exact same incomplete quotation in an amicus brief on IHL submitted to the Court by Professors Jinks, Goodman and Slaughter (Hamdan at p. 68, amicus brief at p. 19 – please do look for yourself).This shows beyond any doubt that the Justices (and, worse, their clerks) DID NOT EVEN READ the Commentary on the Additional Protocols which they cited, certainly one of the most authoritative works on the issue in question.

Stevens’ mistake is now binding precedent in the United States. Whoops. (Although, to be perfectly honest, I expect Stevens would have come to the same conclusion by other means if he had been aware of the error.)

Anyway, as I was reading through his dissent’s version of the Second Amendment’s history today, I found myself thinking how much trouble we would be in if Michael Bellesiles hadn’t been so thoroughly discredited. Professors can be trouble. Law clerks, too.

BREAKING: Supreme Court Holds D.C. Gun Ban Unconstitutional

The justices split 5-4 on ideological lines (with Kennedy joining the conservative justices). Justice Scalia wrote the majority opinion, as predicted. I’m surprised that Scalia managed to convince enough of his fellows to have a majority opinion, rather than dueling pluralities.

The ruling: the Second Amendment protects an individual right to have firearms. The prefatory clause, “A well regulated Militia, being necessary to the security of a free State,”merely announces the amendment’s purpose, but does not affect the operative clause, “the right of the people to keep and bear Arms, shall not be infringed.”

On my first skim of the lengthy opinions, it seems that the holding is limited to the federal government, for now. We’ll have to wait for a later case to incorporate the holding through the Fourteenth Amendment to the states.

Justices Stevens and Breyer wrote dissenting opinions.

I will update with some key quotes in a minute. The opinion can be found here (PDF). Also, be sure to see Jack M.’s comments below.

First Update: While Justice Scalia seems poised throughout his discussion of the historical background of the Second Amendment to declare that it applies to the States as well as the federal government, he draws back from that conclusion in a footnote on page 48 of his opinion:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, and Miller v. Texas, reaffirmed that the Second Amendment applies only to the Federal Government.

The question not being presented, Scalia manfully restrained himself in a way that Kennedy could not in Boumediene. (Kennedy declared that Boumediene was a “special case” and went on to address issues not decided by the lower courts.) But it seems to me his note is giving states fair warning: the early understanding that the First Amendment did not apply against the states was overruled; the same is possible with the Second Amendment. And, as I said, his discussion of the Second Amendment’s history leans strongly in favor of a like finding.

Second Update, More Legalish: The Court follows several recent cases in failing to make clear just what standard is being applied to invalidate the law. According to the dissenters, it’s something greater than rational basis review and Scalia writes that the D.C. gun laws would “fail constitutional muster” under any of the standards of scrutiny. Does that mean that gun bans will be evaluated according to the almost always fatal strict scrutiny standard, or a more relaxed “intermediate” standard? It depends on who you ask.

Scalia seems to be leaving the question open (no doubt because the courts are about to enjoy a barrage of litigation over state and municipal gun restrictions). But Breyer, very clearly, is attempting to convince people that something less than strict scrutiny applies:

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U. S. 74, 82 (1997); see Brief for Respondent 54–62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear.

I think Breyer is a little quick to suggest that each of those restrictions would not pass strict scrutiny. Breyer himself once joined an opinion by Justice O’Connor which derided the phrase “strict in form, fatal in fact” as an exaggeration of strict scrutiny’s true effect.

Third Update, My Final For The Day: Justice Stevens’ dissent is interesting in that it acknowledges an individual right to firearms, but holds that the government can restrict that right based on the prefatory clause. He emphasizes that stare decisis requires that conclusion.

While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’

Most appeals to hold to precedent are opportunistic. The interesting thing here is that Scalia has not explicitly overruled any prior cases.

That will be my last update of the day. I see that there are several noteworthy observations in the comments, both to this post and to the others about Heller, so poke around, folks, for the stuff I missed. I’ll be back this evening, probably with more on this case and also on the campaign finance reform case that also came down today.

Thank You

Look what was waiting for me in the mail today! Many thanks to Ace of Spades HQ reader, openblogger, and friend Alice H. I haven’t seen many of the first season episodes since they aired years ago. It’ll be nice to get back to the old days when Six was still scary and everyone was jumping at cylons in the shadows. In fact, I’m battling a bit of a bug this evening and will be skipping my usual MBE practice drill to sit back with a cup of tea and watch Six break that poor baby’s neck. Thanks so much, Alice. Who knew the destruction of mankind could be such a pick-me-up?

I should mention that in true AOSHQ fashion she chastised me for not having booze on my wishlist. If only Amazon did that kind of thing. If only.

Digging In To Kennedy v. Louisiana

Okay, so I just can’t quit you.

Reading through Justice Kennedy’s opinion, I get the feeling that trying to describe this ruling to anyone else would be an exercise in “I am not making this up. Srsly.” Let’s pretend for a minute that we accepted the ridiculous idea that the Eighth Amendment rests on a combination of “evolving standards of decency” and “the Court’s own judgment.” Kennedy himself fudges the first part.

For example, he writes in page 22:

Aside from pending legislation [five additional states are considering capital punishment for child rapists], it is true that in the last 13 years there has been change towards making child rape a capital offense. This is evidenced by six new death penalty statutes, three enacted in the last two years. But this showing is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons.

What’s so shameful is that Kennedy doesn’t even bother trying to hide or address the inconsistency. Suddenly, he equates child rape to mental retardation. He makes no comment on the differences between the two, like for example, that one is a crime and the other a condition. It seems that any legislative movement limiting the death penalty in specific circumstances can be used to show a “national consensus” against the death penalty in general.

As I was reading through the opinion, I was on the lookout for that most infamous of execution-worthy crimes: treason. Like child rape, treason need not result in death. Under Kennedy’s reasoning, the death penalty would therefore be an inappropriate punishment. For reasons passing understanding and with no explanation, Kennedy simply exempts “offenses against the State” from his reasoning.

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.

Why? He doesn’t say, but it’s in section where he describes “the Court’s own judgment” so it’s not like citizens and legislatures need to know how and why the Court comes to a decision, right?

And that’s one of the most frustrating things about Eighth Amendment jurisprudence. The whole point of having a Constitution and precedential judgments is so that individuals and legislatures can predict with some success whether their actions will run afoul of the laws or Constitution. But when it comes to the Court’s holdings on the Eighth Amendment, that goes right out the window. There’s just no way to predict in advance “the Court’s own judgment.”

Well, that’s not strictly true. We know how Kennedy, Souter, Stevens, Ginsberg, and Breyer are going to rule on death penalty cases. The conservative justices are a little harder to predict, if only because their holding is more likely to be based on the specific facts of a case. But how death penalty jurisprudence will change from Court to Court is a crapshoot. Maybe the Senate Judiciary committee should spend more time asking nominees about the Eighth Amendment and less time applying litmus tests for abortion.

No Ruling on D.C. Gun Ban Today; Death Penalty Under Eighth Amendment Attack

I don’t have much time to spend looking at this today, but I’m sure the cobloggers will weigh in. Heller was not handed down. It will come tomorrow at 10:00am Eastern. Three outstanding cases remain from this term.

There were, however, two cases that I think are important. Though I am opposed to the death penalty, cases where a judge or justice overturns capital punishment because of the Eight Amendment prohibition on cruel and unusual punishment make me want to tear my hair out. That’s exactly what Justice Kennedy did today.

Exxon v. Baker: In a surprise ruling, the justices (except Alito) concurred that the punitive damages award was excessive. It will be limited to the amount of compensatory damages, which was $507.5 million. The opinion is here (PDF). This is a better holding than I expected, and includes some important discussion of punitive damages in American law.

Kennedy v. Louisiana: The Court 5-4 (usual suspects) holds that the death penalty for child rape is unconstitutional on Eighth Amendment grounds. Kennedy wrote the opinion, which is here (PDF). This is an important one because its reasoning would limit imposition of the death penalty to crimes that result in death or at least were intended to cause death. Kennedy’s opinion rests in part on “evolving standards of decency” and “the Court’s own judgment” on the “death penalty’s acceptability under the Eighth Amendment.”

Climate “Scientist” Has No Credibility

Attention whore James Hansen, of NASA’s Goddard Institute for Space Studies, is using tomorrow’s 20th anniversary of his first BS session with Congress to call for the arrest of oil company CEOs. He wants to try them for “high crimes against humanity and nature.”

In an interview with the Guardian he said: “When you are in that kind of position, as the CEO of one the primary players who have been putting out misinformation even via organisations that affect what gets into school textbooks, then I think that’s a crime.”He is also considering personally targeting members of Congress who have a poor track record on climate change in the coming November elections. He will campaign to have several of them unseated. Hansen’s speech to Congress on June 23 1988 is seen as a seminal moment in bringing the threat of global warming to the public’s attention. At a time when most scientists were still hesitant to speak out, he said the evidence of the greenhouse gas effect was 99% certain, adding “it is time to stop waffling”.

Meanwhile, data from every source except GISS shows no warming trend for the past 11 years. Funny that.

ALSO: In what could be an unfortunate coincidence, tomorrow is an opinion day for the Supreme Court. A ruling on the Exxon Valdez punitive damages case is a distinct possibility. As I wrote in February, Justice Alito had to recuse himself because he owns ExxonMobil stock, making a 4-4 split possible. If that happens, Exxon will be required to pay the largest punitive damage award upheld in Supreme Court history. The $2.5 billion award (reduced from $5 billion in the appellate court) is greater than the combination of all punitives ever awarded in federal court.

Rulings on the Exxon case, and the D.C. gun ban case are expected sometime in the next week. Possibly as soon as tomorrow morning.

[I'm not back, but I've got a thing for the Valdez, oil companies, and the ideological battle over the correct way to measure punitive damages (fun!) so I thought I'd put all this on your radar.]

Morning Update: No Supreme Court opinion in either D.C. v. Heller or the Exxon case this morning. The Court will release more opinions on Wednesday. Seven opinions are left to be announced this term.

My Apologies

Sorry about the lack of posting. Studying for the California Bar Quiz has pretty much consumed my life. As the test gets closer, I expect that I’ll completely drop off the face of the Earth. I haven’t even had time to update that lame “Bar Prep Update” graphic (and wasn’t that predictable?). I’ll be back to blogging up a storm in August.

For now, to the tens of readers who drop by, I suggest you try my cobloggers at Ace of Spades HQ or my pretend, imaginary internet friends at DoublePlusUndead. There are also some fine blogs in the two blogrolls on the right.

Giant Sea Turtle Returns to Texas

Glenn Reynolds writes:

ENVIRONMENTAL GOOD NEWS: Leatherback turtles return to Texas. “For the first time since the 1930’s, federal biologists confirmed that a leatherback sea turtle has nested on a Texas beach, at the Padre Island National Seashore near Corpus Christi. . . . The giant, ancient, endangered turtles, some the size of a Smart Car, have until now only been known to nest in four spots in the United States – with about three dozen females a year laying eggs on beaches along the east coast of Florida and slightly larger nesting populations in Puerto Rico and the U.S. Virgin Islands.”

But are they good to eat?