Wednesday, September 30, 2009

Huge News - Supreme Court Grants Certiorari in McDonald v. Chicago re: Privileges or Immunities

Word just in that the U.S. Supreme Court has granted certiorari in (i.e., decided to hear) the McDonald v. Chicago case discussed here previously - and, most importantly, did not appear to have limited the arguments to due process, as Chicago had suggested.

Specifically, here's how the issue is framed in today's order (scroll down to Docket No. 08-1521): "Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."

Please forgive the momentary gloat, but this is precisely the question raised (which my thesis answers in the affirmative) in my 2007 Missouri Law Review article, entitled (in language virtually identical to the Court's stated issue): "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses."

So, the Privileges or Immunities argument we've been pushing, for so long, is ON in the Supreme Court. This is huge.

Monday, September 28, 2009

Nordyke v. King Rehearing

Last Thursday the Ninth Circuit Court of Appeals re-heard oral arguments in the case of Nordyke v. King (discussed here previously), regarding whether the Fourteenth Amendment incorporates the Second Amendment to apply to the states.

As reported Friday on the Constitutional Accountability Center's "Text and History Blog,"

"Just a few hours after the 11-judge en banc panel heard argument, Chief Judge Alex Kozinski issued an order holding off on further consideration of the case until the Supreme Court disposes of three outstanding petitions for certiorari in similar cases –McDonald v. City of Chicago (No. 08-1521), in which CAC [and law professors Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Michael Lawrence, and Adam Winkler] filed an amicus brief urging Supreme Court review; National Rifle Ass’n v. City of Chicago (No. 08-1497), the companion case to McDonald, also out of the Seventh Circuit; and Maloney v. Rice, (No. 08-1592), the comparable New York “numchucks” case coming out of the Second Circuit. All three of these petitions present challenges to local laws restricting the sale or possession of arms, and are asking the Court to determine whether, and if so how, the individual right to bear arms is “incorporated” against state and local action.

"These three petitions are currently scheduled to be considered at the Supreme Court’s so-called “long conference” on September 29. The Court is expected to announce its decision on whether to hear the cases soon thereafter.

"The Ninth Circuit’s action suggests that the Supreme Court should not wait any longer for the Circuit courts to weigh in on the incorporation question. So far, both the Second and Seventh Courts have found no incorporation, citing binding Supreme Court precedent, thus there is technically no “split” on the matter. While the Court frequently waits until a pronounced split has developed among the federal circuit courts before granting review, here, the lower courts have indicated that they feel this is a matter for the High Court to decide."

Friday, September 4, 2009

Just Do It - Obama Needs Backbone for Meaningful Healthcare Reform, a la FDR

In "Roosevelt, the Great Divider" in yesterday's New York Times, Jean Edward Smith explained that much of the meaningful progressive reform accomplished during the New Deal was done by a pugnacious president willing to exercise his majority in Congress even though he knew he would be highly criticized by his opponents.

“Never before in all our history have these forces been so united against one candidate as they stand today,” Franklin Delano Roosevelt said on national radio before the 1936 election, Smith recalls. “They are unanimous in their hatred for me — and I welcome their hatred.”

When he was seeking to make major progressive reform, FDR did not waste his time trying to work with the deeply entrenched obstructionist minorities interested only in maintaining an unjust status quo. He did not consult giant utilities, for example, when he sought to create the Tennessee Valley Authority which would provide affordable electricity throughout the poor South. He did not ask for the permission of Wall Street when he proposed the Securities and Exchange Commission to curb greed. Had he caved to the loud minority who believe that government has no role in providing a social safety net, we would have no Social Security. His arguments for maximum hours and minimum wage laws and the right to bargain collectively were over the heated objections of American business. And, to show that it was not always traditionally conservative vested interests that he faced down, organized labor was vociferous in its objection to the Civilian Conservation Corps because of the low wages paid by the corps.

In short, Smith explains, "majority rule, as Roosevelt saw it, did not require his opponents’ permission." He assuaged his Democratic colleagues to maintain his majorities, but "his Republican opponents were relegated to the political equivalent of Siberia.... [He] lambasted the 'economic royalists' who had gained control of the nation’s wealth. To Congress he boasted of having 'earned the hatred of entrenched greed.' In another speech he mocked 'the gentlemen in well-warmed and well-stocked clubs' who criticized the government’s relief efforts.... Roosevelt understood that governing involved choice and that choice engendered dissent. He accepted opposition as part of the process."

By contrast, President Obama's "fixation on securing bipartisan support for health care reform suggests that the Democratic Party has forgotten how to govern and the White House has forgotten how to lead." Smith suggests "[i]t is time for the Obama administration to step up to the plate and make some hard choices. Health care reform enacted by a Democratic majority is still meaningful reform. Even if it is passed without Republican support, it would still be the law of the land."

Really, what does Obama have to lose? Face it: the Right, marching to the tune of the likes of Rush Limbaugh, Glenn Beck, Bill O'Reilly, and Michael Steele, is never going to play ball. Their main agenda is political - whatever it takes to bring Obama down, they're for. So Obama might as well stand up, like FDR, and say, "to heck with 'em - we're going to pass reform with teeth that will create the sort of humane society of which we are all worthy."

What does that mean? As David Brooks suggests in his column today, "Let's Get Fundamental": "There are many people telling [President Obama] to go incremental. They’re telling him to just enlarge the current system a bit and pay for it by pounding down a few Medicare fees. But did Barack Obama really get elected so he could pass the Status Quo Sanctification and Extension Act?

"This is not the time to get incremental. It’s the time to get fundamental. Reform the incentives. Make consumers accountable for spending. Make price information transparent. Reward health care, not health services. Do what you set out to do. Bring change."

Much of what has made America great was brought about by progressive legislation. If President Obama wants to be a great president who makes lasting, meaningful progressive change, he should stand up, be brave (in his own way, if not in the outright combative manner of FDR), and commit to a strong progressive plan. Accept that the ever-present regressive 40% of American society will bitch and moan about it (but of course they will take full advantage of its benefits once available) - they'll never change, so might as well just move forward despite them.