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.

Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. …

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.

National Review is calling for him to do so, to “debunk” some rumors I’ve never heard before myself.

Rumor one: Obama was born in Kenya. Rather unlikely, as it would require everyone in his family to lie about this in every interview and discussion with those outside the family since young Obama appeared on the scene. However, if it were true, it would probably raise a major question of “does he qualify as a natural-born citizen”? If Obama were born outside the United States, one could argue that he would not meet the legal definition of natural-born citizen under because U.S. law at the time of his birth required his natural-born parent (his mother) to have resided in the United States for “ten years, at least five of which had to be after the age of 16.”

Ann Dunham was 18 when Obama was born – so she wouldn’t have met the requirement of five years after the age of 16.

(Interestingly, apparently there isn’t much paperwork on Obama’s parents’ marriage. Obama: From Promise to Power, page. 27: “Obama later confessed that he never searched for the government documents on the marriage, although Madelyn (Obama’s maternal grandmother) insisted they were legally married.” Also note that Obama’s father apparently was not legally divorced from his first wife back in Kenya at the time, a point of contention that ultimately led to their separation.)

Rumor Two: Obama’s middle name is not “Hussein” but “Muhammad.” …

Rumor Three: His mother did not want to name him after his father, and his birth certificate says “Barry.” Perhaps the most plausible of the rumors, as Obama was known by that name through much of his childhood and young adulthood. If true, this would spur a new round of “When Barry Became Barack” stories – a minor headache for the campaign, but hardly a major scandal.

Three could be true, I suppose, but I doubt it would be all that damaging if proven.

Two does not seem very likely.

And, as for One, my own understanding is that the US law is currently based on both jus sanguinis and jus soli. At the present time, if you’re born in the United States, you are automatically a citizen, and any child of a US citizen is a citizen. But the NR author may be correct: back in 1961, the Immigration and Nationality Act of 1952 would have been the ruling law and it might have contained some residency provision. I’m still looking for a functioning on-line copy of the text. Maybe I’m having problems getting one site to load because so many democrats are also trying to read it.

Peter J. Wirs points out that the DNC Rules Committee’s artificial assignment of Michigan delegate votes to Barack Obama (who did not even run in that state’s primary) may not be as easy to pull off as the power brokers in that party’s back room supposed.

The democrat bosses forgot that federal election law exists. Hillary’s side has recourse, and it looks like Arlen Specter may be preparing to give her a hand.

This past Saturday, the Democratic National Committee Rules Committee voted, as many anticipated, on seating the Florida and Michigan Democratic delegates with only half of vote. Moreover, 59 Michigan delegates were awarded to Barak Obama, notwithstanding he was not on the January 15 Michigan primary ballot. As Clinton adviser and Rules committee member Harold Ickes asserted, the outcome for Michigan was a hijacking of voters’ intent because it assigned delegates to Mr. Obama even though he did not win them.

As we reported last week, Senator Arlen Specter (R-PA), the former chairman and now ranking minority member on the Senate Judiciary Committee, is seriously evaluating whether he should call for Congressional hearings. …

Specter, probably one of the most legally astute of GOP Senators, contends the DNC is violating one of the most fundamental of all constitutional rules, that once a vote is cast it must be counted. This constitutional principle, pronounced by the United States Supreme Court since Ex parte Yarborough (1884) and reiterated as recently as Gray v. Sanders (1963), is simply beyond reproach. This rock-bottom constitutional demand applies to primaries as well as general elections. …

No one is disputing the Democrats have every right to set what its rules are and how its delegates are to be selected.

But once the Democrats evoke the state’s machinery in order to hold a public primary, a bright line is crossed. As the Supreme Court in Gray v. Saunders observed state regulated party primaries “show that the State . . . collaborates in the conduct of the primary, and puts its power behind the rules of the party. It adopts the primary as a part of the public election machinery. The exclusions of voters made by the party by the primary rules become exclusions enforced by the State.” Grey v. Saunders went on to assert that “state regulation of this preliminary phase of the election process makes it state action.”

The issue isn’t that the DNC is asserting some “for members only” admission to a clubhouse. The issue is that the Great States of Florida and Michigan held primaries, which although concerning one or another of our two major political parties, is part of the electoral process. These primaries weren’t private affairs. They weren’t even party affairs. They were official state actions. The DNC was acting by virtue of the power delegated to it by the legislatures of both Florida and Michigan. The taxpayers of both Florida and Michigan, not the DNC, paid for the primaries. If the DNC wants to exclude voters, or count only half of the votes cast, or award Obama delegates he did not win, then they should hold private affairs (like that San Francisco cocktail reception where Obama asserts most of us are bitter by virtue of believing in God). Let them sell tickets and pay for the events themselves. …

when I go to the polls to vote, I don’t want someone to cancel or dilute my vote. I expect my vote to be count as one vote, nothing more, nothing less.

Don’t think that saying “Gay Marriage isn’t real marriage” could get you into trouble one day?

Just give it time. Over in Europe, where political correctness is always just a step or two ahead, the Guardian reports that calling Scientology “a cult” is currently treated as a crime in Britain.

A teenager is facing prosecution for using the word “cult” to describe the Church of Scientology.

The unnamed 15-year-old was served the summons by City of London police when he took part in a peaceful demonstration opposite the London headquarters of the controversial religion.

Officers confiscated a placard with the word “cult” on it from the youth, who is under 18, and a case file has been sent to the Crown Prosecution Service.

A date has not yet been set for him to appear in court. …

The incident happened during a protest against the Church of Scientology on May 10. Demonstrators from the anti-Scientology group, Anonymous, who were outside the church’s £23m headquarters near St Paul’s cathedral, were banned by police from describing Scientology as a cult by police because it was “abusive and insulting”.

Writing on an anti-Scientology website, the teenager facing court said: “I brought a sign to the May 10th protest that said: ‘Scientology is not a religion, it is a dangerous cult.’

“‘Within five minutes of arriving I was told by a member of the police that I was not allowed to use that word, and that the final decision would be made by the inspector.”

A policewoman later read him section five of the Public Order Act and “strongly advised” him to remove the sign. The section prohibits signs which have representations or words which are threatening, abusive or insulting.

The teenager refused to back down, quoting a 1984 high court ruling from Mr Justice Latey, in which he described the Church of Scientology as a “cult” which was “corrupt, sinister and dangerous”.

After the exchange, a policewoman handed him a court summons and removed his sign.

In Germany, on the other hand, they’ll probably arrest you if you say that Scientology isn’t a cult.

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Hat tip to Little Baby Ginn at DBKP.

David Benkof notes that Gay Marriage is not simply some sort of private, self-regarding kind of thing. Legalized Gay Marriage is about forcing other people to recognize these relationships as valid, legitimate, and equal, and can potentially involve serious legal consequences to those who disagree, including churches and newspapers.

Although California marriage-equality leaders won’t say what impact they expect the new decision to have on religious freedom, activists in other states haven’t been so shy.

A representative of the largest Michigan gay-rights group, known as the Triangle Foundation, and openly gay Washington State Sen. Ed Murray both told me that any person who continues to conduct himself as if what he thinks is God’s definition of marriage is correct, instead of the gay community’s definition, should be fined, fired and even jailed until he relents.

“If you are a public accommodation and you are open to anyone on Main Street that means you must be open to everyone on Main Street. If they don’t do it, that’s contempt and they will go to jail,” says the Triangle Foundation’s Sean Kososky.

Sharon Malheiro, a lawyer and LGBT activist from Des Moines affiliated with the state’s gay-marriage lobby, ONE-IOWA, told me that if a teacher in a marriage-equality state taught that marriage is between a man and a woman, “then it becomes a job performance issue” and the school district should take appropriate action.

Michael Taylor-Judd, the president of the Legal Marriage Alliance of Washington state, said if a newspaper writes that a given same-sex marriage wasn’t really a marriage, “it is certainly in the realm of possibility for someone to bring a [libel] suit, and quite possibly to be successful.”

The Triangle Foundation’s Kososky agreed: “I would be sympathetic to some damages.”

Now, no lesbian in history has lost her assets, her job, or her freedom for writing, teaching, and running her business guided by her belief that marriage is a union of any two individuals who love each other.

So why do gay activists outside California support limitations on the freedom of speech, the press, and religious expression for anyone who disagrees with them? And why won’t California marriage-equality activists go on the record with their opinions on this vital issue?

This new ruling doesn’t only harm traditionally religious people. It poses a serious danger to the well-being of children.

After four Massachusetts judges imposed this change on their state, Boston’s Catholic Charities was given the choice of treating couples without both a mother and a father the same as more traditional couples, or getting out of the adoption business altogether.

The well-regarded agency felt it had no choice but to shut down – which means there are children in the Bay State who do not have the mother and father they could have had if gay activists hadn’t been so strident.

He’s right. It is not difficult in the least to picture Gay Rights Organizations suing Catholic dioceses, demanding that Catholic Churches perform Gay Marriages. It’s just one more step down the same path.

In 1857, Chief Justice Roger B. Taney applied his judicial powers to conclude once and for all the vexatious arguments about the extension of Slavery to the the Western territories which had persisted since 1820. In Dred Scott v. Sandiford , he ruled that persons of African descent could never be US citizens, slaves could not sue in court, and Congress had power to exclude Slavery from the territories. So there. The result, of course, was the Civil War.

The Wall Street Journal editorializes today on the folly of judges usurping the decision-making power of the people as a whole.

Judges invent wedge issues. Always have. As with California’s Supreme Court, many of the berobed judiciary take it as their solemn duty to do the people’s thinking for them on the modern world’s most difficult and divisive social issues. So it was with Roe v. Wade, when the U.S. Supreme Court declared 50 state legislatures irrelevant. The aftermath has been more than 30 years of the abortion wars.

California’s Supreme Court is not the law of the land, but its 4-3 ruling, titled “In re Marriage Cases” for six consolidated appeals, explicitly told both the state’s voters and its elected legislature to get lost. Back in 2000, California voters by 61% approved a proposition asserting that the state could only recognize a “marriage” between man and woman.

Now comes the court. In the court’s words: “[T]he core set of basic substantive [court’s emphasis] legal rights and attributes traditionally associated with marriage . . . are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.” This rule by judicial decree could hardly be clearer. What is also clear is that judges should again be an election issue.

The school of thought which holds that the American people should cheerfully accede to whatever social world unelected judges design for them is Democratic orthodoxy. …

The gay community wants social acceptance. It should look to what flowed from Roe v. Wade: unending bitterness. A wiser course in 21st-century America is to trust the democratic process.

Eugene Volokh explains how legislation banning sexual orientation discrimination in Masasachusetts, Vermont, and California was then taken by their highest courts to constitute a new basis for interpreting their state constitutions. The California decision notes:

This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation.