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

Monday, March 21, 2016

Supreme Court Watch

Note: SCOTUS also heard oral argument today and on Twitter it was noted that this is the first day the justices are arraigned in the post-Scalia style. Before, they kept the old way with black over his chair. 

Today was a day for the Supreme Court to hand down orders and like when it summarily rejected a non-recognition of same sex adoptions on Full Faith and Credit Clause grounds, we had a bit of a surprise today.  We can put aside the usual cert. denials, taking of what doesn't appear to be an overly notable case for argument and sundry matters.  Nothing seems of interest.

The decision not to decide a dispute among states arising from the negative effects of marijuana legalization in Colorado was not. The dissent (Thomas/Alito) had a point that they really should have took the case on "original jurisdiction" grounds. Or, at least, they should have discussed their simple "nope" more, particularly given the special role of the Supreme Court to settle interstate disputes.  This is true even though their avoidance here was not a novel move, they did it in the past.

The surprise was the per curiam dealing with the stun gun case that I discussed, which seemed readily avoidable even if the challenge had bite.  The Supreme Court has not substantively dealt with a single Second Amendment claim since McDonald, even though there probably was a conflict among the circuits (how much is debatable, but the proper standard and questions about guns outside the home seems to split courts) and many cases to pick from. Before dying, Scalia joined Thomas calling out the Supreme Court for not taking one that dealt with ownership of certain guns even at the home. Here, Alito (with Thomas) was quite passionate, both about the interest of the at risk woman involved to have a means of self-defense and the alleged disrespect a lower court (a state supreme court that shortly before McDonald didn't protect an individual right at all) had of Heller itself.*
Because the stun gun that the defendant possessed is both dangerous per se at common law and unusual, but was not in common use at the time of the enactment of the Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment.
I thought the lower court's opinion was overbroad at the very least. This is what SCOTUS, in an opinion without dissent or comment from the liberals, basically said in a brief two page per curiam. As noted by Ian Millhiser on Twitter, it came off as a compromise, perhaps suggested by Kagan, to hold the line.  It kicks the can down the road though some teeth seems to be present here. The Supreme Court here noted the 2A covers arms not around at the time of the amendment's passage (since this was a state matter, really should reference the 14A). Next, in reference to the "dangerous and unusual" exception to the right to "keep and carry" (USSC words; implication here it isn't just applicable in the home, especially that is the fact pattern in this case?), the lower court was similarly wrong to say "unusual" applies since the stun gun was a thoroughly modern invention. The "dangerous per se" aspect is left open and perhaps the state can still rest on that ground?  Finally, the state court was wrong to limit things to those readily adaptable to the military; Heller was broader in scope.

In fact, in theory, the state might ban stun guns for some other reason. This might be deemed the charm of such a brief/narrow opinion.  People can take from it what they will -- Heller matters ... or, well, this is just an extreme case. SCOTUS still needs to take a case for full argument to clarify the breadth of its 2A precedents. But, who is to know they will have a full Court any time soon, even when in the 2016 Term that will happen.  So, just what "dangerous" means -- Alito briefly addresses that and as applied to the 2A (guns per se are "dangerous" after all) it still isn't really clear -- will have to wait.  Still, they easily could have avoided this case and not sure there were four justices so upset about it that they would have granted cert.  But, there were probably three strong ones. Now two.

The opinion didn't avoid a strong concurring opinion that suggested that the Court didn't do enough ("grudging per curiam").  Still, realistically, the opinion did help the 2A side, if only somewhat. Personally, I think the liberals will live with Heller though in a sort of Planned Parenthood v. Casey way that will make others upset.  To be continued. For Court watchers, this is the sort of exciting window into the Marble Palace.


* This includes how it was a "good thing" she had a means to defend herself against an abusive ex-boyfriend and later "stand her ground" in a less lethal way that could appeal to the "conscience" of those worried about more deadly weapons. The stand her ground thing is a bit much and the lower court suggested there was a bit more reason to be concerned about stun guns than suggested here.  But, the concurrence had a point, including by noting that even if an arm had to have a military use, this one did.

[And Also: The concurrence is particularly concerned with self-defense, which some might argue isn't the point of the 2A being incorporated here. Nonetheless, Alito's opinion in McDonald v. Chicago itself basically noted the changing understanding of that amendment by the time it was incorporated.  In effect, this view was also back-dated to some extent to the 2A, which also now is deemed a self-defense matter.]

It is unclear what will happen now -- the woman "was not given a jail sentence or a fine," so the smart thing for the government here to do is cut their losses. The opinion again didn't totally bar a stun gun ban and the state can worry about enforcing it the next time they find a means to do so for merely possession and not some sort of misuse -- not seeing this as happening that often.  Or, they might press the point, since as Alito noted: “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

"A point" doesn't mean I would join all of what he said. The link includes further discussion of other matters covered by the orders.

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