Washington Times:

On the same day the Supreme Court declined to hear one appeal challenging Barack Obama’s right to become president because of questions about his citizenship, Justice Antonin Scalia distributed another appeal on the same issue for the court to consider.

The new case, Cort Wrotnowski v. Susan Bysiewicz, Connecticut Secretary of State, is scheduled to be discussed by the justices at their Dec. 12 private conference. They plan to decide whether to give the case a hearing – again on whether the British citizenship of Mr. Obama’s father makes the president-elect ineligible to assume the office. …

The Supreme Court on Monday turned down the previous appeal filed by New Jersey attorney Leo C. Donofrio.

Unlike Mr. Donofrio’s appeal, Mr. Wrotnowski’s case “includes a more solid brief and a less treacherous lower court procedural history.”

Law blog

A number of prominent conservatives have recently been labeling anyone who thinks there is any possible legitimate issue here as a “kook.”

Well, personally, I think it costs real money to fight lawsuits in eight states, and multiple appeals for Supreme Court certiorari. Why would anyone bother when he could simply release the long form of his Hawaiian birth certificate?

Chicago Tribune:

The U.S. Supreme Court will consider Friday whether to take up a lawsuit challenging President-elect Barack Obama’s U.S. citizenship, a continuation of a New Jersey case embraced by some opponents of Obama’s election.

The meeting of justices will coincide with a vigil by the filer’s supporters in Washington on the steps of the nation’s highest court.

The suit originally sought to stay the election, and was filed on behalf of Leo Donofrio against New Jersey Secretary of State Nina Mitchell Wells.

Legal experts say the appeal has little chance of succeeding, despite appearing on the court’s schedule. Legal records show it is only the tip of an iceberg of nationwide efforts seeking to derail Obama’s election over accusations that he either wasn’t born a U.S. citizen or that he later renounced his citizenship in Indonesia.

The Obama campaign has maintained that he was born in Hawaii, has an authentic birth certificate, and is a “natural-born” U.S. citizen. Hawaiian officials agree.

If Obama really was born in Hawaii, and actually has that legitimate birth certificate, why does he have a problem with producing and displaying it?

This 1:02 video has an inflammatory and partisan tone, but does summarize the questions about Obama’s citizenship succinctly.

Duck!

If I were to follow the examples of Joseph Smith, L. Ron Hubbard, or Barack Obama, and invent my own religion, could I demand that the nearest municipality boasting a Ten Commandments monument allow me to erect another monument listing my own teachings on the courthouse lawn? Should the city fathers fail to oblige would a federal circuit court of appeals (that isn’t the 9th Circuit) rule in my favor? Is it possible to imagine that the United States Supreme Court could wind up ruling on my petition?

The Wall Street Journal reports that it has all worked out just that way for Corky Ra.

A couple of decades after a visit from “beings Extraterrestrial” inspired him to found the Church of Summum in 1975, Summum Bonum Amen Ra, born Claude Nowell and known as Corky, had another epochal encounter. He saw a monolith depicting the Ten Commandments on the courthouse grounds in Salt Lake City, says Su Menu, the Summum religion’s current leader, and “felt it would be nice to have the Seven Aphorisms next to them.” The monument would be inscribed with the principles that, according to Summum doctrine, Moses initially intended to deliver to the Hebrews before deciding they weren’t ready to understand them.

Several Utah municipalities Mr. Ra approached declined the opportunity to display the Seven Aphorisms, provoking a legal battle that arrived at the Supreme Court Wednesday.

Daniel Henniger editorializes:

In 2007, the federal appeals court for the Tenth Circuit ruled in favor of Summum, giving the religion permission to put up its Seven Aphorisms monument in Pioneer Park. The Supreme Court will decide whether the Summums of America deserve their own patch of the public green.

Laughable though it looks, Pleasant Grove City v. Summum is a textbook example of tensions that have pulled our courts between noble readings of the Constitution — in this case, the First Amendment’s speech protections — and what the average person might call the common-sense requirements of running a civil society.

Henniger is perfectly correct. Modern liberalism’s abject inability to resist any appeal couched in idealistic rhetoric gives it a terminable case of philosophic round heels.

The Washington Post tells us that liberals are suffering from SCOTUS envy.

It could be seen as the sincerest form of flattery: Ask some activists on the left the kind of Supreme Court justice they would like to see a President Obama appoint, and the name you hear most is the same justice they most often denounce.

They want their own Antonin Scalia. Or rather, an anti-Scalia, an individual who can easily articulate a liberal interpretation of the Constitution, offer a quick sound bite and be prepared to mix it up with conservative activists beyond the marble and red velvet of the Supreme Court. …

as the Supreme Court takes its traditional spot in the background of the presidential campaign, there is a longing on the left for a justice who would energize not only the court’s liberal wing, but also the debate over interpreting the Constitution.

“Someone with vision,” said Doug Kendall, who recently helped found a new liberal think tank called the Constitutional Accountability Center. “Someone who looks hard at the text and history of the Constitution, as Justice Scalia does, and articulates a very clear idea of how that text points to liberal and progressive outcomes.”

“It is a court with no true liberal on it, the most conservative court in 75 years,” said Geoffrey Stone, a law professor at the University of Chicago, where Obama once taught constitutional law. “What we call liberals on this court are moderates, or moderate liberals, if you want to get refined about it.”

Stephen Breyer, Ruth Bader Ginsburg, and David Souter aren’t liberals?

Heck, liberals don’t even need to win presidential elections to get liberal Supreme Court Justices appointed. Conservative Republican presidents will appoint some for them.

Speaking more seriously, though, I think our friends on the left are missing the point. They are on the defensive on the Court, not really because of a paucity of kindred spirits, but because they have, for decades, been losing the battle of ideas in jurisprudence and Constitutional Law at the law schools and in the law journals.

Face it, what liberals really want is a return to an uncritical era of legal intuitions, emanations, and emotional sloganeering. They want the William O. Douglas and Earl Warren kind of “no brainer” liberal court decisions which merely use a few orotund generalities to raise the consensus of the liberal elite to the status of law of the land.

Uncle Cthulhu Wants You!

On Supreme Court Appointments:

Great Cthulhu is well accustomed to the adoration of priests wearing black robes and he is willing to accept the due homage of the Nine and raise them to his priesthood. Since there will no doubt be many vacancies on the court as their minds break one after another in the mad ecstacy of his fearful presence, Great Cthulhu pledges to appoint only strict Constitutional constructionists to the bench under the assumption that the basic sanity of their approach should allow them to serve at least a term year or two before they are reduced to gloriously gibbering cannibals. Because Great Cthulhu spent many years himself neither living nor breathing, he sees no reason that the Constitution must either.

———————————–

Hat tip to Will Wilson.

Randy Barnett, in today’s Wall Street Journal, relishes the results of Heller, and praises Justice Scalia’s work. I love his editorial’s title, which constitutes all by itself an absolutely devastating rejoinder to the jurisprudence of people like Justices Stevens and Breyer.

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” – or the original principles “underlying” the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge.

Ilya Somin, at Volokh Conspiracy, advises Gun rights supporters not to rejoice too soon.

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a “collective right” protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn’t enough. If the scope of the right is defined narrowly by courts, recognition won’t mean much in practice.

Read the whole thing.

As predicted, Justice Scalia wrote the majority opinion in District of Columbia v. Heller, which was naturally decided by Justice Anthony Kennedy in his capacity as decisive swing vote.

On first glance, I would say that the Court’s ruling primarily represents a strong rebuke to intellectually farcical sophistry and the kinds of whimsical and creative legal analysis which divorce themselves from the Constitution’s historical background, the expressed views and intentions of the framers, commentaries on the Constitution, and the entirety of history before 1932.

Justice Scalia writes at length, and with ill-concealed contempt, for efforts to eliminate the individual right to keep and bear arms by facile manipulation of the prefatory “well-regulated militia” clause, happily following the jurisprudential practice of recent decades of including a thorough and comprehensive survey of the relevant history.

And he concludes:

There seems to us no doubt, on the basis of both the text and history, that the Second Amendment conferred an individual right to keep and bear arms.

But, no sooner does Justice Scalia arrive at his bold conclusion than he begins retreating from its implications and striving actively to limit its practical consequences.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. …

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of smallarms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

In the end, the ruling merely affirms the existence of the individual right to keep and bears arms, and strikes down the District of Columbia’s ban on handgun possession in the home and its requirement that lawful firearms kept in a home be inoperable. It specifically declines to address licensing requirements (which Heller failed to challenge). Insofar as the Court affirms a right of self defense, it has done so only with respect to one’s home.

The moderation of Scalia’s opinion is likely to make its power as a decision stronger rather than weaker though, and District of Columbia v. Heller signals a major reversal in the direction of Constitutional Law at the Supreme Court level.

While we’re waiting for the Supreme Court decision in Heller, Larrey Anderson, at American Thinker, has a bit of fun applying ordinary language philosophy to the oh-so-inscrutable meaning of the Second Amendment.

It is depressing to imagine how a Court which finds execution by lethal injection for child rape violative of the cruel and unusual punishments clause of the 8th Amendment is capable of reading the Second Amendment.

Tom Goldstein at the SCOTUS blog:

There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. … So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

It would certainly be nice if he’s right.

Photoshop commentary by TerrellAfterMath.

The head of the Brady Campaign told ABC News he expects to see the Supreme Court throw out DC’s handgun ban.

The nation’s leading gun control group filed a “friend of the court” brief back in January defending the gun ban in Washington, D.C. But with 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.”

While the Brady Campaign is waving the white flag in the long-running debate on whether the Second Amendment protects an individual’s right to bear arms or merely a state’s right to assemble a militia, it is hoping that losing the “legal battle” will eventually lead to gun control advocates winning the “political war.”

“We’re expecting D.C. to lose the case,” Helmke said. “But this could be good from the standpoint of the political-legislative side.”