Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
And Also: A bit of nuance on what influences judges -- it is not all partisan or all robotic judge machine; it's somewhere in between. TPM has had some good things on the early Republican hardball tactics on replacing Scalia. There are reasons, but it still is so absurd to me -- you have the votes to simply reject the nomination the normal way. If slow walking it so basically Obama had one shot. 2/3 of them at least will oppose anyone like done for Sotomayor/Kagan even when merely a trade of likes occurred. If necessary, a few more can use the "took a look at them, but don't want to change the balance of the Court now with this nominee ... let's wait until after the election." Can't do that though. smh.
Part of inside baseball is the "petitions we're watching" page at Scotusblog (possible future home of one Barack Obama), which includes a "Petitions Relisted for the Next Conference" list as well. There are more cases to clarify the application of Miller v. Alabama (life sentences for teens), a case about a NJ law barring licensed mental health counselors to do certain things regarding gay conversion therapy (professional speech a potential avenue of confusion / development*), a FFCC case involving same sex adoption that is getting some attention and one about a homeless (or living at a hotel) woman having no 2A right to stun guns.
The stun guns case is interesting though having nuances -- it doesn't involve the home, for instance -- that suggest it is not a great avenue to finally have them take another 2A case. Plus, this seems like something that warrants a full bench. Still, looking over the opinion below and state brief, the whole thing does look somewhat confused. First, there is some requirement that the weapon is akin to those around when the amendment was ratified (being a state claim, guess 1868?), and well, except on Wild Wild West, the fictional post-Civil War spy show, yes stun guns are more a modern invention. But, that can't be right -- it has to be the function of the thing, not no direct analogue given technology.
Then, there is the discussion of "dangerous and unusual," which is an exception cited by Heller. Now, to be fair, and this is cited somewhere, the opinion didn't do that much to clarify the rules here. Me personally, I think they should have remanded the case to allow factual hearings to apply the new rules they set up. Instead, after fifty or so pages, we get a few words on how the rules make the provisions unconstitutional. Regardless, "dangerous" cannot simply be -- to quote the state court -- "instrumentality designed and constructed to produce death or great bodily harm," since I gather that is what guns generally are created to do. And, the fact many more people use regular guns, but still owned by 200,000 civilians, doesn't to me sound that unusual.
It's quite possible that stun guns can be banned without violating the 2A. They can be particularly dangerous, alternatives for self-defense available including for those more likely to use them (physically weaker women etc.) and maybe regular guns and knives have constitutionally received some sort of recognition by long use. The case is in no way a slam dunk -- my state bans them, but this argument that some might rather use them over alternatives (and deserve the right to do so) makes sense. For instance, the state brief tried to differentiate an opinion that protected dirk knives. Knives logically would be "arms," but if those things are allowed, not sure about stun guns being banned. A knife like that can be more dangerous.
Of course, there are three to four votes on the Supreme Court not friendly with a RKBA anyway, and at best will be very unwilling to override regulations. Kagan to me is a bit of a wild card there though the Cruz voter will assume see is a lost cause, even if she was Scalia's hunting buddy. Still, some clarity here is important. And, how about the whole bit about the home? Even if Heller gave special notice to it, personal self-defense in general was the right honored. This includes outside the home, be it a hotel room or not -- people walking in the street have a right to self-defense. Again, stun guns might be particularly dangerous given possibility of mistake etc. over let's say pepper spray or the like, but it would be passing strange to allow gun with bullets to let's say a diamond merchant or crime victim in a public place, but not something less likely to hurt more than one person (or at worse the user). This goes to the state interest involved.
McDonald v. Chicago was decided about six years ago. The 2A is going to come up again eventually. Maybe not for this interesting case though. Odds are probably against it; but, it does show the things up in the air.
* One claim is that a recent opinion about sign regulations required to be neutral suggests limiting what licensed therapists can say about the subject is a problem. But, if strict scrutiny is going to be placed to uphold professional licensing involving speech, such as therapy, that can open a big can of worms. There are possible problematic cases here -- e.g., biased scripts for abortion providers on what amounts to ideology -- but a medical judgment that something is harmful should not have to be proved in courts by strict scrutiny.
The argument that there is some special right for religious believers to have licensed professionals work under different rules here also seems rather problematic.