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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, June 28, 2016

Justice Beyond Criminal Justice

The failure so far to prosecute regarding the death of Freddie Gray does not mean "no justice" is possible. Justice does involve prosecutions (and how we do them), but in a big picture way, that might be the lesser approach. Prosecution is a last resort with a high bar while there are various other things to do, including civil remedies, political responsibility (see, e.g., 2006 and 2008) and changing policies. See., e.g, racial equality after Brown.

And Also: The contraceptive rule is a compromise.

Order Day

There will be scheduled summer order days but one more scheduled one before then. Big news today, finally, the union fees case (without comment) will not be re-heard. Thomas/Alito would examine a broad (over $100) disclosure law. I'm open to concerns if the bar is that low. Roberts joined a strong dissent to not taking a case requiring access to IUDs etc. at pharmacies without a religious exception. Somewhat open to concerns if nearby access is available but we are talking time sensitive/constitutional rights (Griswold).

Monday, June 27, 2016

The Burger Court and the Rise of the Judicial Right

I gave a brief partially negative review of this book and hold to it. But, it covered a lot of ground in a easy to read fashion, plus there were some interesting internal bits too. The story also shows how the courts are not complete independent from both the public and the political branches, the latter by whom is in control when appointments/confirmations occur. Kennedy as a fifth vote today shows just that as does his living constitutional approach.


First, the new Burger Court book co-written by Linda Greenhouse is too heavy-handed on the conservative shift, not enough inside details and found a few mistakes. Somewhat disappointed. Second, the statutory gun case came as expected except Sotomayor joined Thomas' dissent (minus 2A part). Gov. McDonnell won (even Rick Hasen thought he should) unanimously. Breyer wrote the abortion opinion (5-3), RBG concurred to briefly say it was really bad and dissents thought majority were the unreasonable ones. Orders boring.

Saturday, June 25, 2016

José Reyes Back

The Rockies disposed of their expensive star SS to the Blue Jays and in part received Reyes (who had a short-lived stint with the Marlins at the end of the day), but had prospects around ready to play. So, after a recent domestic violence incident led to a suspension, Rockies let him go, eating a chunk of money since no team wanted him. So, Mets got him for chump change, but wary myself, the d.v. not helping. But, guess wait and see.

ETA: Wary about Conforto last summer but thrived. After a good beginning, he's back to struggling rookie. So, to add to the spare parts, another rookie will replace him for awhile.

Friday, June 24, 2016

The Right to Abortion: A Psychiatric View

Found this book on one of the $1 shelves outside of Argosy. Nice find -- it is a booklet from 1970 that supports a woman having the same right to choose an abortion as they do to choose who to marry. It covers all the bases (privacy, religion, vagueness of mental health exceptions etc.) and holds up very well (even debates on how IUDs work). Exception is a suggestion that maybe husbands should be given right to take part in the decision but even that was hedged.

Thursday, June 23, 2016


Started with a statutory criminal ruling not too exciting but with a range of opinions including a tour de force by Alito. Then, warrants required for blood but not breath tests (Sotomayor/RBG disagree on latter). Kennedy (4-3) finally finds an affirmative action program he deems constitutional. And, 4-4 non-decisions for the long pending Dollar General case (net result: pro-tribe) and (surprise/horrible) immigration case. Abortion on Monday.

Wednesday, June 22, 2016

"Any honest historian of the early Republic will tell you that lax gun laws are not in fact pro-Second Amendment; they are anti-Second Amendment."

Saul Cornell wrote A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  

Interesting book.  He basically supports a pro-gun regulation approach to the 2A though his historical studies concludes the individual (common law) right to self-defense is separate from the purposes of the amendment itself (at least the original understanding). That's fine really though basically (McDonald v. Chicago in effect sort of says this) over time the people had a different view that matches the conclusion of D.C. v. Heller

He wrote a guest op-ed in today's NY Daily News (some good stuff today but again what's with doing away with daily movie and t.v. coverage; even the t.v. listings were cut in half).  Let's break things down. The most basic argument is okay enough:
Any honest historian of the early Republic will tell you that lax gun laws are not in fact pro-Second Amendment; they are anti-Second Amendment.
He in part appeals to the "security of the free state" (which I take to be an appeal to republican principles) language as giving the state some power to regulate to guard against domestic violence.  This is an interesting approach; most in support of regulation are more inclined to focus on the "well-regulated" part in particular. Cornell next notes Heller, in his words, supports "reasonable regulations," which is a bit misleading since that in legal jargon would suggest a lower level of scrutiny.  Scalia in fact specifically rejected "reasonableness" review here though did not clarify if strict scrutiny was required.  It is fairer as a colloquial summary.

Cornell notes Scalia appealed to original understanding and then cites some examples of Founding Era regulations.  Cornell does note that we have a stronger sense of due process today, e.g., so need not follow them exactly.  Which is good since things like loyalty oaths are not a good idea.  We should not deem practices against loyalists while a war was ongoing on American soil with British troops breathing down our necks as quite the best approach. There were people at the time wary about emulating some of the things we did there. It does suggest the limits of original understanding.  He notes:
Under common law, any person in the community could approach a justice of the peace and demand that an individual be preemptively disarmed if they posed a danger to public safety. Such persons would be required to post a peace bond, much like a modern bail bond.
I'd like to know a bit more about this, but it doesn't quite sound like the terror watch list idea. The judiciary (to the degree "a justice of the peach" was that) seems to be involved.  How did one show "they posed a danger to public safety" and what does "preemptively disarmed" means exactly?  Was it a one-sided affair?  Was notice required? Were they able to offer proof then and there before being disarmed that the peace bond was illegitimate? The concern with the proposals is the after the fact, basically backward approach where the executive gets to block purchase and only then you can challenge it.  
It is not the real Second Amendment written by the Founders that poses a barrier to taking decisive and reasonable steps to lower the carnage in our streets; it is the mythical Second Amendment imagined by the gun lobby.
True but that's rather vague.  What exactly is "reasonable" here?  Bottom line, the article basically refutes an extreme argument and defends the broadest strokes of the pro-regulatory side.  This helps a bit, but doesn't quite tell us what specifically is okay.*  It's only an op-ed, so realize its limitations in form. Still, would help to learn a bit more how the terror watch list idea fits in here.  For instance, if the individual wrongly claimed a peace bond was warranted, was s/he open to civil damages?  Little things like that alone might make make the proposals different.

But, sometimes the very basics do help reach agreements regarding basic givens especially for hot button topics.

ETA: I emailed the author and he provided me a link to this article and referenced the book. My reading of the article is that it concerns carrying guns in public places and that colonial practice put strong licensing restraints on that.  Interesting perhaps for that issue which isn't settled yet.

Did find this article (see particularly around 717) that does appear to cover the bond issue.  "One means of conserving the peace, apart from prosecuting those who breached it, was to order persons who posed particular risks to provide sureties of the peace." This is separate from regular prosecutions, has a "probable ground" standard and involves what sounds like a form of bond and judicial oversight (“to bind the party to appear at the next sessions of the peace").  

Not sure how that applies here though sounds like judicial involvement on the front end would be required.  


* For instance, Sen. Collins has put forth a compromise version of the terror watch list proposal which has enough Republican support that there appears to be a fighting chance for it to reach cloture.  So it can die on the House floor (after the sit-in folks leave).  Sorry.  A tad cynical.

Seriously, the ACLU opposes it. A NRA/ACLU opposition here just might be too much, especially since again quite seriously, it's probably a lost cause in the House anyways.  Re-funding research (maybe all those John Oliver encouraged calls will bear fruit)  seems a lot more safe in this respect.  The whole thing seems gratuitous.  A general background bill also would be more copacetic though due process needs to be safeguarded there too.  But, not holding my breath there. 

The Summer of Sangaile

Found this at the 53rd Street Library. It's a Lithuanian film about young love, finding one's confidence (cutting involved) and the country's apparent fascination with planes. Actually watched the whole thing straight and in one sitting, so has to be decent. Seriously, had a good feel, interesting look (a bit much with the heights/planes at times) and lead very good.

Tuesday, June 21, 2016

Day Out Mid-Town

Used to regularly go to the Donnell Library in mid-town but then it shut down. A while ago. Yesterday, it re-opened in a fashion as the 53rd Street Library, a sort of 21st Century affair with even a place (stands type area) you can sit down and eat. Nice. Also went across the street and took advantage of my idNYC card to get a free year membership at MOMA. A lot to see (and hear). Round things off, bought a $1 book at Argosy Books. Charged me tax!