Tag: law

Do They WANT Vigilantism

KevinLeave a comment

Today’s Kennedy v. Louisiana Supreme Court ruling (PDF file) is another 5-4 “victory” for the politically Left-leaning members of the Court. Beginning at page seven in the decision is a graphic description of what the scrote did to his eight year old stepdaughter. That description begins:

Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.

He’s right. By the end of it I was wondering why the sack of excrement was still breathing. This is Louisiana, right? Don’t they have a lot of swamp and alligators down there?

I have a nine year old granddaughter. If some subhuman did this to her, I’d sit in a prison cell for the rest of my life, or take the needle content in knowing that he’d never do it to anyone else – ever, at the same time anguished that I hadn’t prevented it in the first place. I’ve made this point before.

Justice Alito wrote the dissent. It begins on page 42:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with ” ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Because neither of these justifications is sound, I respectfully dissent.

He then goes into a heavily annotated and deeply legal discussion of the existing precedents, but to my mind this is the key graph of the dissent:

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” Although the Court has much to say on this issue, most of the Court’s discussion is not pertinent to the Eighth Amendment question at hand. And once all of the Court’s irrelevant arguments are put aside, it is apparent that the Court has provided no coherent explanation for today’s decision.

(My emphasis.) In essence, Alito just illustrated that the court did what Alex Kozinski called constitutionalizing their personal preferences – “build(ing) magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text.”

Today on the Hugh Hewitt radio program Hugh had “the Smart Guys” on again – Law professor (and now Dean of the new U.C. Irvine School of Law) Erwin Chemerinsky and Chapman University Dean John Eastman. Chemerinsky was ecstatic over the “evolving standards of decency” language of the decision. I’m trying to get a transcript of that portion of the show, because it is a textbook example of “Living Document” interpretation of the Constitution, and Alito points it out here. Alito makes one more excellent point:

The Court’s final — and, it appears, principal — justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public. But the Court makes little attempt to defend these conclusions.

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing.

In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

One wonders how Justice Alito managed to refrain from accusing the Court’s majority in this case of moral depravity of their own.

As an aside, my boss has his own idea as to how child-rapists should be punished.

And the Verdict IS

KevinLeave a comment

And the Verdict IS…

Exxon v. Baker – $2.5 Billion in punitive damages was too much. $507.5 million, tops, to match the compensatory damages.

Kennedy v. Louisiana – baby-rapers don’t get the death penalty unless you can prove an intent to commit murder. If no one died, then… No one dies.

One more opinion pending today (leaving four for Thursday)…. (@ 10:11 Eastern time)

Giles v. California. I’m not real sure what this one is, but Scalia wrote the majority opinion. You can read it here. (PDF file)

SCOTUSblog says “at least one more decision coming” leaving three for Thursday…

No Heller today. I guess the Justices want to be on a plane out of town when that one hits the 6 o’clock news. Thursday it is.

The last decision of the day is Plains Commerce v. Long Family Land and Cattle. Be still, my beating heart. Another 5-4 wherein the eeeevil right-wing has stolen more from the Red Man. Ginsberg, Stevens, Souter and Breyer dissented.

The Court has announced that “all of its remaining opinions” will be released tomorrow at 10:00AM Eastern.

Heller is tomorrow, for sure. It will not carry over.

UPDATE: Read this related piece at Concurrent Opinions.

In Keeping with Harshing Your Mellow

KevinLeave a comment

In Keeping with Harshing Your Mellow…

I would not be at all surprised if SCOTUS hands down the Heller decision today, since there has been another rampage shooting in a workplace this morning.

An employee shot and killed four of his fellow workers at a plastics plant in Henderson, Ky., on Wednesday, before shooting himself, the police said.

Two other workers at the plant, Atlantis Plastics, were also shot and they were transferred to hospitals in Evansville, Ind., the Henderson Police Department said in a statement. “The cause behind this incident is unknown, however, the suspect is known to have gotten into an argument with a supervisor earlier in the evening,” the police statement said.

After the argument, the suspect left the plant for his regular break and when he returned he was carrying a handgun, police said. The identities of the victims and of the suspected killer were not immediately released, and it was not clear whether the supervisor was among those killed.

According to the radio report I listened to on the way in to the office this morning, the shooter went home, got a gun, came back and started shooting.

Boy, it’s a good thing that people aren’t allowed to keep firearms in their cars at work, isn’t it? That kind of “common-sense thinking” prevents this sort of incident!

Right?

So, anyway, with this story starting off the day, I will not be surprised for SCOTUS to say, today, in Tam’s words,

“It’s an individual right, but only not.”

Sorry, but the more I consider it, the less likely I find the idea that the courts will save us, and I’ve felt that way a LONG time.

No Heller Today

KevinLeave a comment

No Heller Today

SCOTUSblog reports that only three of the remaining ten decisions for this term were announced today. They also report:

The only opinion remaining from the March sitting is Heller. The only Justice without a majority opinion from that sitting is Justice Scalia.

Further:

The Court has announced that it will release opinions against(sic) at 10am Wednesday. Because seven opinions remain, it will almost certainly have one additional day. Based on past practice, that day likely will be Thursday.

Anybody taking bets on Heller being announced Thursday?

This One’s for Most of the Marbles

KevinLeave a comment

This One’s for All Most of the Marbles

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. – Alex Kozinski, dissenting (PDF file) the denial of an en banc rehearing of Silveira v. Lockyer in the 9th Circuit Court of Appeals, May 6, 2003

On March 9, 2007 the U.S. Court of Appeals for the D.C. circuit found in favor of the plaintiffs in Parker vs. District of Columbia, for the first time overturning an existing gun law on the grounds that it violated the individual right to arms that is protected by the Second Amendment of the Constitution of the United States. The D.C. Circuit is only the second to have found that the Second Amendment does, indeed protect an individual, and not a collective right. The first was the 5th Circuit Court of Appeals in the U.S. v. Emerson decision of October, 2001 wherein the Court decided that the right protected was an individual right, but the law in question met that court’s understanding of “limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country” – “albeit likely minimally so”.

Emerson and Silveira (along with the 9th Circuit’s Nordyke v. King and Hickman v. Block before it) represented a “circuit split,” wherein different circuits of the Courts of Appeal held different understandings of a fundamental Constitutional question. Emerson was appealed to the Supreme Court, and the appeal was denied. Silveira was appealed to the Supreme Court, and the appeal was denied.

Parker was appealed to the Supreme Court as D.C. v. Heller, and appeal was granted.

Oral arguments were heard on March 18, 2008.

It is most probable that the Supreme Court will hand down its decision tomorrow, the last Monday of this term.

The fundamental question at hand, and the only one I expect the Court to actually rule on, is whether the Second Amendment protects an individual right to arms, and that handguns are such arms as are protected by that Amendment.

I do not expect SCOTUS to rule on any other topic. Not on the level of scrutiny, not on the standing to sue of the other plaintiffs in the Parker suit (Dick Heller was the only person found to have standing to sue.) Not on the question of what other weapons are protected. And, most definitely, not on whether the Second Amendment is “incorporated” under the 14th Amendment’s “equal protection” clause against infringement by state governments.

This one’s for most of the marbles. IF our side wins (and after the Boumediene decision, I’m no longer quite as sanguine), there’s still a long way to go.

And a Democrat Congress to approve new judges for at least the next two, probably four, and possibly sixteen or more years.

But as early as tomorrow we will get to see, again, just which Justices on the Supreme Court are willing to “constitutionalize their personal preferences.”

UPDATE: As usual, the GeekWithA45 says it better than I can.

We Never Intended the Law to Mean THAT!

KevinLeave a comment

“Whenever you propose a new law, imagine what the results would be if that law was enforced by your worst enemy or the stupidest person you know.” – Anonymous

A while back, a real b!t*h of a mother allegedly managed to humiliate a young woman by the use of a fake MySpace page to the point that the young woman hanged herself.

There doesn’t seem to be a law on the books for that, but, since Prosecutors are as fond of Law & Order (the TV series) as most of America seems to be, one in this case has decided to do the Jack McCoy route, and stretch an existing law to fit:

Internet suicide case goes to federal court

A Missouri woman accused of taking part in a MySpace hoax that ended with a 13-year-old girl’s suicide has so far avoided state charges — but not federal ones.

Lori Drew, 49, a neighbor of the dead teen, was to make an appearance in federal court here Monday, accused of one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress.

The charges were filed in California where MySpace is based. MySpace is a subsidiary of Beverly Hills-based Fox Interactive Media Inc., which is owned by News Corp.

Drew, of suburban St. Louis, Mo., allegedly helped create a fake MySpace account to convince Megan Meier she was chatting with a nonexistent 16-year-old boy named Josh Evans.

Megan Meier hanged herself at home in October 2006, allegedly after receiving a dozen or more cruel messages, including one stating the world would be better off without her. Drew has denied creating the account or sending messages to Meier.

U.S. Attorney’s spokesman Thom Mrozek said Drew is expected to enter a plea in federal court, then have her case assigned to a judge and be given a trial date. He said she would then be allowed to return to her home state pending trial.

Here’s what the law is for:

The statute used to indict Drew usually applies to Internet hackers who illegally access accounts to get information.

But:

James Chadwick, a Palo Alto attorney who specializes in Internet and media law, said he has never seen the statute, known as the Computer Fraud and Abuse Act, applied to the sending of messages.

He said it was probable that liability for the girl’s death would not be an issue in the case. “As tragic as it is,” he said, “You can’t start imposing liability on people for being cruel.”

No, but a U.S. Attorney is going to try.

When Only the Cops Have Guns

KevinLeave a comment

When Only the Cops Have Guns

If there was ever a case of “justifiable homicide,” this is it:

Police: Officer kills man who beat child to death

TURLOCK, Calif. — Police killed a 27-year-old man as he kicked, punched and stomped a toddler to death despite other people’s attempts to stop him on a dark, country road, authorities said.

Investigators on Sunday were trying to establish the relationship between the suspect and the child they say he killed Saturday night. The Stanislaus County coroner said the boy appeared to be between 1 and 2 years old based on his size, according to county sheriff’s deputy Royjindar Singh.

“It’s been a long night of wondering, ‘Why?’ — not only for the officers and the passers-by who stopped and tried to help out, but for anyone. Why would somebody do this?” Singh said.

Singh said the coroner does not plan to confirm the identities of the suspect and victim until Monday. Because his injuries were so severe, the child will have to be identified through a blood or DNA test, he said.

The suspect had a child’s car seat in the back of his four-door pickup truck. The truck caught the attention of an elderly couple at 10:13 p.m. Saturday because it was stopped in the two-lane road facing the wrong direction, Singh said.

As they got closer, the couple saw the man brutally beating the toddler behind his truck and throwing the child on the ground, according to Singh. Two or three other cars stopped, an unusual number to be passing through the remote area surrounded by a dairy, a cow pasture, a cornfield and a farmhouse, he said.

“What we got from witnesses is he was punching, slapping, kicking, stomping, shaking,” Singh said. “They tried to intervene and get involved, but their efforts really didn’t have an effect. The suspect was engaged in what he was doing. He just pushed them off and went back to it.”

A sheriff’s helicopter responding to emergency calls from the area landed in a cow pasture at 10:19 p.m. carrying a Modesto police officer who shot the man to death after he refused an order to stop beating the child, Singh said.

Paramedics tried to resuscitate the toddler, who was not breathing when they arrived. The boy was taken to a local hospital, where he was pronounced dead.

When seconds count, the police are only minutes away…

Heller Observations

KevinLeave a comment

Heller Observations

Concurring Opinions has an interesting post up, What to Watch For in D.C. v. Heller, a compendium of ten items the author Rick Mike O’Shea thinks we should pay close attention to when the decision is finally handed down. (I concur with his belief that it will be one of if not the last decisions released by the Court this term, on or after June 23.)

To me, the most interesting points raised are, of course, the questions of how the court will address U.S. v. Miller (and I expect both concurring and dissenting opinions to split on this, creating a nightmare of dicta for future courts to wade through), whether the Court will address the level of scrutiny at all (I’m voting for “no”), and – one I hadn’t really considered, the question of standing. As Concurring Opinions notes:

The Supreme Court litigation in D.C. v. Heller has been so rich and important that one forgets about the accompanying cross-petition for certiorari, Parker v. D.C. The Heller litigation originally involved six different plaintiffs, each raising slightly different challenges to D.C.’s gun laws. However, the D.C. Circuit panel dismissed five of the six plaintiffs (all but Dick Heller) under an unusual standing doctrine that the circuit had adopted in an earlier Second Amendment case. This is why the case was recaptioned from Parker to Heller when it reached the Supreme Court.

When the District of Columbia petitioned the Supreme Court for review of the D.C. Circuit’s opinion granting judgment in Mr. Heller’s favor, plaintiffs’ counsel cross-petitioned for review of the denial of standing to the other five plaintiffs. The cert petition on the standing issue, still captioned Parker, has been waiting in limbo on the Justices’ desks for seven months, while the Court has granted cert in Heller and held briefing and argument on the Second Amendment merits issue.

I predict that if the Court holds for Mr. Heller on the Second Amendment issue, it will consider this to be quite enough work for one day without also wading into the tangled complexities of standing doctrine. It will “GVR” (summarily Grant, Vacate, and Remand) the Parker part of the litigation back to the D.C. Circuit, which will have to reconsider the question of Second Amendment standing for the other plaintiffs, in light of what the Court says about the nature of the Second Amendment right in Heller.

One thing about cases like this that has always irritated me is the standing argument – that unless you can show that the law has directly adversely affected you, you have no standing to sue. That was the grounds on which the 9th Circuit Court of Appeals decided Hickman v. Block – they said the Second Amendment didn’t have anything to do with an individual right to arms, therefore the plaintiff had no standing to sue. In his dissent to the denial to re-hear Silveira v. Lockyer en banc, judge Kleinfeld wrote:

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question.

H. Wayne Fincher decided that the only way he could challenge the Federal machinegun ban was to get arrested for violating it. There’s something wrong with a system that essentially demands that you break a law before you can challenge its Constitutionality.

But Mr. O’Shea is right – I don’t expect SCOTUS to touch that ball of worms.

Paul Helmke and Super Dangerous Weapons

KevinLeave a comment

ABC News interviewed Mr. Helmke, president of the Brady Campaign to Disarm America. He had some interesting things to say:

(W)ith the Supreme Court poised to hand down a potentially landmark decision in the case, the Brady Campaign to Prevent Gun Violence fully expects to lose.

“We’ve lost the battle on what the Second Amendment means,” campaign president Paul Helmke told ABC News. “Seventy-five percent of the public thinks it’s an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.”

As I noted in my comment there, Mr. Helmke once again avoids mention of the fact that he and his ilk were attempting to change the Constitution without recourse to the Amendment process through REDEFINING the meaning of “right of the PEOPLE to keep and bear arms”. They failed. Spectacularly. That doesn’t mean we think they’ve given up. And his mouthpiece confirms:

Brady Campaign Attorney Dennis Henigan said there are multiple gun control measures that would not run afoul of a Supreme Court decision striking down the D.C. gun ban.

“Universal background checks don’t affect the right of self-defense in the home. Banning a super dangerous class of weapons, like assault weapons, also would not adversely affect the right of self-defense in the home,” said Henigan. “Curbing large volume sales doesn’t affect self-defense in the home.”

Yet the Brady Campaign supported the D.C. ban at least in part because they believe that handguns are a “super dangerous class” of weapons. The Violence Policy Center, of the same ilk, has been trying to get a national handgun ban passed since its inception. They even sell a book on the topic: EVERY HANDGUN IS AIMED AT YOU.

But somehow Mr. Helmke thinks that “assault weapons” – which I doubt he could define – are “super dangerous.” Apparently only when they’re in the hands of people not on the .gov payroll, since almost every police force in the country (including, most recently, Chicago) is armed or arming with AR-15 or M16/M4 rifles and carbines. You know, those spray-firing bullet hoses designed to be fired from the hip and that are only good for mowing down crowds?

In current news, Utah’s Hill Air Force Base has apparently misplaced a crate of M-16 select-fire rifles (read: “machine guns”). Apparently since these are official government firearms, the Salt Lake Tribune notes that they are “small caliber rifles,” though they are “worth up to $5,000 each on the street.”

“Small caliber rifle” doesn’t sound like a “Super Dangerous Weapon,” does it?

They’re missing twelve of them.

Helmke must be having kittens.