The Supreme Court of the United States recently issued writs of certiorari for several appeals cases. The court has a history of letting government grow past the bounds of the constitution. When the court does tell government that it has over-reached, they rarely include any sort of enforcement or punitive measures. I fully expect most of the cases upcoming to be poorly decided. We know that the high court is going to make several bad decisions, let’s look at a few and decide how they should decided.
As a note: they probably won’t declare that the president, the congress, and the court itself have all acted un- and extra-constitutionally, and that they must return to what the constitution says… so… while they should decide that for nearly every case, I’m not going to repeat it again and again below.
Another note: I’m not a lawyer. I have very little legal education, but probably more than the average person. No guarantees made about the quality of this post.
McDonald v. Chicago
This is the biggest gun rights case since D.C. v. Heller (which was decided in 2008, but the biggest one before that was in the 1930s, I think). In D.C. v. Heller, the majority decided that the second amendment means what it says (amazing that 4 of the 9 justices thought otherwise (this is the document that gives them their jobs; would you ever say that your employment contract doesn’t mean exactly what it says?)). The District of Columbia had a handgun ban (for new handguns), and laws that restrict the usability of all legally owned firearms by law abiding citizens. The court decided that “the people” referenced in “…the right of the people to keep and bear arms shall not be infringed” were the same people referenced in the first amendment and the fourth amendment (and I would say the ninth and tenth amendments, but the court doesn’t care about those). Realizing that there is a right to keep and bear arms, and that there are purposes for this exceeding what is explained in the prefactory clause, the court decided that the restrictions D.C. had were too much because they prevented self-defense. The decision in Heller only applies to the federal government, because D.C. is directly under the control of the federal government (Congress has direct power over it).
Which leads to the question of whether it applies to the states. Most of the protections from the federal government in the U.S. Constitution have been extended to be protections from the several states, as well, through the language in the fourteenth amendment. The fourteenth amendment states, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This has been taken by the court to mean (more or less) that the states may not violate the rights that the federal government may not violate (insert your own joke here).
“Incorporation” is the legal mumbo-jumbo term used to refer to how the protections apply to the states, decided by the arbitrary whim of the Supreme Court. Some protections in the bill of rights do not apply to states the same way that they apply to the federal government. The second amendment has not yet been brought before the high court for a decision on how it applies to the states. McDonald v. Chicago will do this. Good guy and attorney Alan Gura, the lead counsel for the petitioner (McDonald), was the lead counsel for the respondent (Heller) in Heller. Chicago has a handgun ban and some other highly restrictive gun laws, in obvious violation of the second amendment (if it applies to them).
I ended up writing a lot, so let’s get on with it. So how should the court decide? They should find that the second amendment does apply to the states, and that Chicago’s laws infringing the right to keep and bear arms are unconstitutional.
Carr v. U.S.
First off: sex offenses are bad, m’kay? I don’t support them.
Some guy was convicted of a sex offense in 2004 (I didn’t bother looking up what he did, specifically, in order to prevent becoming prejudiced). In 2006 a sex offender registration requirement law was enacted by the federal government. This sex offender didn’t register. In 2007 he was arrested for something, and the government found out that he was an unregistered sex offender. They charged him with violating the law that was passed after he was convicted.
Sex offender registries are ineffective. Some crimes designated ‘sex offenses’ cause no harm, and should not be crimes at all, and some are barely crimes or sex offenses, but they carry the same stigma, which is wrong.
But besides that; The registration requirement law should not apply retroactively. Retroactive laws are prohibited in Article I, Section 8 of the U.S. Constitution, “No… ex post facto Law shall be passed.” The law cannot apply retroactively. Simple.
Migliaccio v. Castaneda
An imprisoned man needed medical care and it was delayed. He died. The government admitted fault. The family is suing the individuals because of the delays. There exists a law which restricts lawsuits and judgments against the government and government agents. But Obamacare won’t be anything like this. The law prevents government employees from being personally liable for their decisions, prevents punitive damages against the government, and prevents juries from being used in the cases.
That law is probably unconstitutional, it sure is bad and unfair.
Toss the law.
Berghuis v. Thompkins
And my first defense of the state in these analyses:
Some criminal received the Miranda warning, he indicated that he understood it, and he talked. The police did not coerce him. He did not explicitly waive his rights.
He confessed. Dumb move, but it is within his rights to do. He doesn’t get protection for acting foolishly. One need not explicitly waive one’s rights in order to talk. If he were to have waived his rights than he would have no control over the degree to which he talks. Talking (or not talking) without waiving one’s rights is the only way to control what rights are kept.
Don’t let him off.
U.S. v. Stevens
Stevens made video tapes of animal cruelty and tried to sell them. There is a federal law banning the manufacture, sale, etc. of depictions of animal cruelty, in interstate commerce. He was convicted of violating that law.
The case will deal with the first amendment, but it should also deal with the commerce clause. Congress did violate the prohibition of restricting free speech by making this law, but more importantly, congress has no power to make the law. The commerce clause does not give congress the power to make such broad laws restricting everything under the guise of interstate commerce. According to Judge Andrew Napolitano, a good source, I would say, the commerce clause only gives congress the power to make commerce regular by keeping the states from erecting barriers to free trade within the United States. So they don’t have the power they claim in the first place, but the court doesn’t care about that.
The court will look at free speech. From a Lockean/Rothbardian/Randian/similar view of rights, the guy has the right to free speech because he has property rights, and he may make with his property whatever he wants. The common exception to free speech, “Fire!” in a crowded theater, is a violation of the property rights of the theater owner and the ticketholders, and that is why it is not a right.
In any event: The guy committed no real crime (in filming and selling the videos), and the law is bad.
I think that is all for now.
I am very interested in any comments you may have. Am I wrong? Anything to add?