Jay Reding.com

This morning, the Supreme Court will hand down its decision in District of Columbia v. Heller, a case which will likely decide as a matter of law whether the Second Amendment creates an individual right to keep and bear arms.

To follow the Court’s session, SCOTUSblog’s live coverage will provide instant results and links to the opinions.

My prediction: a clear majority of the Justices will decide for the individual rights interpretation. A closer majority will decide the issue of what standard of review should be used—and there may not even be a majority on that. Either the standard of review will be narrowly decided to be strict scrutiny, or we’ll see a plurality opinion that allows for some reasonable regulation of firearms along the lines of the Solicitor General’s amicus brief.

Gun owners will be happy that the Court has recognized the Second Amendment for what it is—but if the standard of review is too lenient, then it may be less of a victory than some had hoped. My guess is that the Roberts Court is not about sweeping changes, and will temper the individual rights aspect of the decision with than a less than searching standard of review.

UPDATE: Affirmed 5-4. Individual right upheld. More this evening.

One of the professors at my law school teaches a course on “atrocious cases”—and today he will have something new to add to his syllabus. The Supreme Court handed down a ruling in the case of Boumediene v. Bush that represents one of the most blatant examples of judicial activism of our time. The Supreme Court, or at least five of its Justices, have decided that an alien outside the territory of the United States has the right to the writ of habeas corpus.

Chief Justice Roberts, in his dissent (joined by Justices Alito, Thomas, and Scalia) explains why this decision is both overly broad but also unsatisfying to all:

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine-through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Justice Scalia’s dissent was blistering—even by his standards:

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary. “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).

Turns out they were just kidding.

Indeed they apparently were. Like Lucy pulling the football from Charlie Brown, the Supreme Court has told both the elected branches of government that they call the shots. If there were some strong constitutional logic behind this decision it would be one thing. But the majority opinion even admits that the law is at best murky on the issue of whether a foreigner has ever been granted habeas rights when they are outside the sovereign territory of the United States (and even that contention flies in the face of the weight of authority that decisively holds that they have no access to the writ). Undeterred, the Court chooses to dramatically rewrite settled precedent nonetheless. If prior cases had eviscerated and overruled the key Supreme Court precedent in Johnson v. Eisentrager, 339 U.S. 763 (1950), this decision has rendered it a nullity.

The goal of our courts is not to make the law, but to follow the Constitution. This decision is not grounded in the jurisprudence of the Constitution, but of the whims of five. Justice Scalia puts it bluntly, but accurately:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today.

I certainly hope that it will, but if certain members of the judiciary have their way it will be as a tyranny of the few. Our country is, and should be, a nation of laws, not men. It is sad that we are elevating the whims of five Justices over the will of those who are responsible to the people.

Heather McDonald takes a probing look at whether America’s criminal justice system truly is racially biased. Perhaps unsurprisingly, the objective evidence does not match the conventional narrative:

Backing up this bias claim has been the holy grail of criminology for decades—and the prize remains as elusive as ever. In 1997, criminologists Robert Sampson and Janet Lauritsen reviewed the massive literature on charging and sentencing. They concluded that “large racial differences in criminal offending,” not racism, explained why more blacks were in prison proportionately than whites and for longer terms. A 1987 analysis of Georgia felony convictions, for example, found that blacks frequently received disproportionately lenient punishment. A 1990 study of 11,000 California cases found that slight racial disparities in sentence length resulted from blacks’ prior records and other legally relevant variables. A 1994 Justice Department survey of felony cases from the country’s 75 largest urban areas discovered that blacks actually had a lower chance of prosecution following a felony than whites did and that they were less likely to be found guilty at trial. Following conviction, blacks were more likely to receive prison sentences, however—an outcome that reflected the gravity of their offenses as well as their criminal records.

Another criminologist—easily as liberal as Sampson—reached the same conclusion in 1995: “Racial differences in patterns of offending, not racial bias by police and other officials, are the principal reason that such greater proportions of blacks than whites are arrested, prosecuted, convicted and imprisoned,” Michael Tonry wrote in Malign Neglect. (Tonry did go on to impute malign racial motives to drug enforcement, however.)

There’s no doubt that the incarceration rate in this country is shockingly and troublingly high. However the solution to this problem is not to pretend that it is the fault of the justice system, but to recognize that it comes from a culture of lawlessness. At some point, the crisis becomes self-perpetuating. A culture in which criminal activity is common is likely to be a culture that produces more crime. People live to the norms they see, and when violence, drug use, and crime become endemic, there is more likely to be more crime, violence, and drugs.

The problem with the idea of less vigorous law enforcement is that the ones who are hurt by increases in crime tend also to be disproportionately members of minority groups. Gang-bangers and drug dealers victimize their own communities, not the suburbs. The effects of out-of-control inner-city crime are not helped by efforts to concentrate resources in places where crime is not such an immediate and pressing problem.

What then is the solution? The neglect of America’s inner cities is a travesty made worse by a false sense of noblesse oblige on the part of well-intentioned outsiders. The only lasting solutions will have to come from within. The problem is not who is getting caught, but who are committing the crimes. Trying to solve the wrong set of problems helps no one.

Kurt Denke is the owner of a company that makes connection cables for audio/visual equipment. Monster Cable is a company that sells ridiculously-priced connection cables for audio/visual equipment. Monster Cable decided to send a cease-and-desist letter to Mr. Denke’s company.

Monster Cable didn’t realize that Mr. Denke was a lawyer.

This is the response they got to their claim of patent infringement.

Let’s just say that Monster Cable is probably wishing that they’d never sent that letter:

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs’ practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am “uncompromising” in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court’s attention upon the merits of your claims–or, to speak more precisely, the absence of merit from your claims–from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

Corporate counsel should take note: if you’re going to send a cease-and-desist letter to someone, it’s a good idea to first make sure that you actually have a good-faith case, and second, it’s probably a good idea to make sure that the person you’re threatening isn’t a better lawyer than you are.

(Via Slashdot.)

Jeffrey Toobin has a lengthy examination of Guantánamo Bay and the detention of people caught in Iraq and Afghanistan. The legal battles over the status of detainees continue, as the Supreme Court is set to release the latest opinion concerning detainee rights in Boumediene v. Bush sometime in the next few months.

The real question is what we do when and if Gitmo is closed down. Giving members of al-Qaeda access to US civilian courts does not at all work. A terrorist suspect cannot be given the same rights as a civilian criminal—it’s unworkable to argue that they should have the right to confront their accusers when their accusers might be deep-cover CIA agents actively working against al-Qaeda. There’s a quantitative difference between the sort of evidence used in a criminal trial and the evidence gathered on the battlefield. We certainly don’t want to reduce the standards for civilian trials to the level of evidence gathered on the battlefield—but it doesn’t make any more sense to demand that our armed forces play CSI on the battlefield.

It’s tempting to give these suspects over to their home countries—but if human rights are a serious concern, that would hardly be a good idea. Someone who is deported to a place like Algeria or Saudi Arabia won’t have to worry about waterboarding being torture—instead they’ll likely end up being tortured to death or at the very least treated far worse than they are at Gitmo. For all the hyperbole about Gitmo being “the Gulag of our times” that diminishes the real horrors of the average Third World prison where waterboarding is just the appetizer.

Toobin believes there may be a solution for this problem:

Even if the commissions can somehow begin, the larger question of what to do with the remaining detainees is, for now, unsettled. One response to that quandary is a controversial proposal, by the law professors Neal Katyal and Jack Goldsmith, that is attracting a great deal of attention in the small world of national-security law—and which may offer an electoral lifeline for the Republicans this fall.

Katyal and Goldsmith make unlikely allies. A law professor at Georgetown and former Clinton Administration official, Katyal won widespread renown when he argued and won Salim Hamdan’s case before the Supreme Court in 2006. Goldsmith is a former Bush Administration official who, despite leaving the government in 2004, in part over concerns about civil liberties in the war on terror, remains a strong national-security conservative. (He is now a professor at Harvard Law School.) But the two men shared a conviction that both military commissions and ordinary criminal prosecutions would be impractical for a few of those captured on distant battlefields. Together, they came up with an alternative: a national-security court.

According to their proposal, which was recently the subject of a conference sponsored by American University’s Washington College of Law and the Brookings Institution, sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible—so government agents could testify about what informants told them—and there would be no requirement for Miranda warnings before interrogations. Some proceedings would be closed to the public. “It’s a new system that’s needed only in extreme circumstances,” Katyal said. “It’s not a default option.”

Not surprisingly, civil libertarians do not like the idea. The problem is that their preferred solution of going through civilian courts simply does not work. Terrorism is not a crime, nor is it like ordinary warfare. Rather it is something that is sui generis, a category all to itself. Treating terrorism like a crime does not work, nor are terrorists properly “combatants” as defined by the Geneva Conventions. (The term “unlawful combatant” is not a term invented by Bush Administration lawyers but one that is inherent in international law.) The laws of war allow us to keep these people off the battlefield for as long as there are active hostilities—which in this war is not a definite term.

The overheated rhetoric from the civil liberties groups doesn’t help. Gitmo is not a “gulag” nor is it some legal black hole. We as Americans face a difficult problem that requires creative thinking—and instead we have the Gitmo issue being used as a political talking point. If we close Gitmo, we had better have a viable solution for what we’ll do with the people being held there. Trying them in civilian courts is not a viable option, nor does it seem likely that the Supreme Court will allow for the current system. At some point, there will need to be a compromise, but that will require all sides to work together rather than merely pointing fingers at each other.