Tuesday, June 29, 2010

Narrow Focus

Bob S. asked a good question (as he always does) about why the Court has, so far, only decided recent gun cases (Heller and McDonald) as it relates to self defense.  The short answer is that that's been the best way so far to decide the narrow question placed before it. 

The Supreme Court does not issue advisory opinions. This stems from the "case and controversy" clause in the Article III of the Constitution.  In other words, the Court will only answer questions it is given, and only if there is an actual case or controversy in effect. This requires not only an issue to be resolved, but "standing" as well.  Standing is best described as having "skin in the game." Thus, the parties must not only show that the issue exists, but also that the issue (or its decision) affects them, personally. 

In fact, part of every brief submitted to the Court for review of a lower court's decision (called a Petition for Writ of Certiorari) will contain a "questions presented" (sometimes captioned as "Questions Presented for Review") section.  In this section, parties will try to frame the question in a way that favors their interpretation and desired result.  In doing so, they are attempting to define the controversy for the Court.  Outside of that, if the parties do not bring an issue up, the Court will typically not address it.

Moreover, the Court will typically narrowly address the questions it is given. That means that if there are 100 ways to get to a result, they likely choose the narrowest, most restrictive and direct way to get there. For this reason, attorneys, both in their briefs and in their argument, will choose the argument or path they believe will be the most receptive to the court.  Since the Court is creating precendent that will affect cases as they come on down the line, they don’t want to decide more than they have to. That way, there is less of a risk that an overbroad ruling will be misinterpreted and applied to otherwise irrelevant facts.

A review of the Questions Presented in the two cases of interest will illustrate my point.

Heller:

Petitioners (City of Washington, DC): Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.

Respondents: (the citizens challenging District law): Whether the Second Amendment guarantees lawabiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.

McDonald:

Petitioners (the citizens challenging the state law):  Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

Respondents (City of Chicago and Village of Oak Park, Illinois): 
1. Whether the Court should consider claims that the Second Amendment right to keep and bear arms in common use, including handguns, is a fundamental liberty interest applicable against state and local governments by the selective incorporation doctrine of the Due Process Clause of the Fourteenth amendment.


2. Whether the Court should refuse to revisit its repeated holdings that the Privileges or Immunities Clause of the Fourteenth Amendment does not incorporate Bill of Rights provisions to apply against state and local governments.

The small wording differences are each party's attempt to frame the issue. Now, once the questions are laid out, the attorneys can spend all their time arguing about the many different uses of firearms.  But by doing so, they will run out of time, and perhaps not get to their "key" points.  Both the number of pages in a brief and the amount of argument time are strictly enforced.  This requires attorneys to drill down and focus.  In this case, I believe that for strategy reasons, the prevailing parties have focused on the right to self-defense.  By doing so, in my humble opinion, they focused on the best historical and logical route to get to where we wanted to go.  Now that the foundation has been laid, we can build upon it for the other uses.

Monday, June 28, 2010

On the Edge of My Seat

Two very important (to me) opinions are due to come out today from the Supreme Court bench.  They involve the two most important amendments to the Constitution:

First Amendment (freedom of association):  CLS v. Martinez -- (whether a public school can deny public funding to an organization solely because of its internal leadership requirements).  During argument, the Court seemed a bit perplexed as to why the case was before them (never a good sign).  My thoughts?  If a school provides funding to all organizations, it should not single out any organization just because that organization insists that its leaders subscribe to their beliefs.

Second Amendment (right to bear arms):  McDonald v. City of Chicago -- (whether the 2nd Amendment applies to the states).  The cynic in me believes this opinion will leave more questions unanswered than we think.  While I hope that the decision confirms that the Second Amendment applies to the states, I fear that the Court will not yet definitively settle what the right encompasses.  Right now, the Court seems to be stuck on the self-defense aspect, which, albeit important, is not the only reason to own or use firearms.

You see, I believe that the first two amendments are the most important.  Without those two, we would not have the others.  The First Amendment allows us to sound the alarm when the government gets too big for itself.  The Second Amendment reminds the government that it governs, not by right, but only with the consent of the governed.

We shall soon see.

Sunday, June 27, 2010

Quote for the Week

These examples and many others demonstrate an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen -- a society in which government may intrude into the secret regions of man's life at will.

Dissent, Osborn v. United States, 385 U.S. 323 (1966)

Friday, June 25, 2010

Richard

He smelled. Awfully.  He was loud, demanding, and often drunk. He was constantly begging for money for food and coffee.  Or so he said. He was dressed in a tattered shirt, and muddy jeans. He always had an old boonie hat, and wore scuffed, dirty work boots. I couldn’t tell you how old he was, but if I had to guess, I would say 60’s. Late 60’s at best. He may have been much younger than that, but, recently, life had not been what he had hoped.

I didn't know much about him.  What little I knew came from our brief conversations.  His name was Richard, and he was homeless, but also had family in the city.  Where or why the relationship had broken down, I did not know, but he did not consider his family a resource, only a memory.  He spent his nights at a homeless shelter downtown whenever he could. If that wasn't an option, he would lay on a nearby bench to pass the time.

-o-o-

Our church at the time was a small one. It was on a busy road that connected one part of the city with the downtown, and the homeless shelter. The main entrance was at the back of the church, and the doors opened up directly to the street. There was no foyer. Once you made it up the few steps from the street and opened the door, you were directly in the sanctuary. The doors had their own alarm of sorts. Any time someone opened the door, the sounds of vehicles rushing along the street below would betray the opening. Even if traffic was light, the doors would still announce arrivals. The mini-blinds on the door were not fastened at the bottom.  Opening the door would send the bottom half of the mini-blinds crashing about, trying to keep up with the top half.

-o-o-

I first met Richard when he walked into our church and sat in the back row. He didn't understand what my dad, the preacher, was saying, since my dad preached in Spanish. A big part of me just wanted to ignore the smelly man in the back mumbling to himself.  However, feeling a sense of duty, I gave up my seat on the second row, sat next to him in the back, and translated for the rest of the service.  After the service, we headed over to a nearby restaurant to make sure that, for at least that night, Richard could have his food and some coffee.

It wasn't something I wanted to do.  I didn't do it because it made me feel better.  Truth be told, I'm really not sure why I did it.  Every time the doors opened and the blinds did their thing, I looked back, hoping to some degree that it would not be him.  If it was, I would trudge to the back row, and sit next to him.  While I translated, I would do my best to hide my discomfort and hope that, at least to Richard, I appeared normal.

Every now and then, Richard would miss church. Inevitably, in a day or so, I would see him lying on the bench as I drove by at night.  Soon, he would once again show up and take his place at the back row.  And I, answering more to duty than desire, would take my seat next to him.

One day, I was sitting at home watching the news, and I felt goosebumps stand my hairs on end.  The on-scene reporter spoke of a fatal accident on the street near our church.  Someone had been struck trying to cross the street.

Behind the reporter, I could make out the outline of an empty bench.

As soon as I could break free, I drove out there wanting to find nothing, hoping to be wasting my time.  As I approached the church, I noticed something small in the middle of the road, barely illuminated by a nearby street light.  I slowed down to get a better view, my heart in my throat.

There, in the middle of the road, was a scuffed, dirty work boot.

For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.'

“Then the righteous will answer him, 'Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?'

The King will reply, 'I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.'

Matthew 25:35-40

Who is your Richard?

Thursday, June 24, 2010

Cockroaches

Well, PETA, in it's never ending campaign to become irrelevant, recently issued a press release.  It seems they want us to be kind to cockroaches.  You must be out your freakin' mind.

Press Release

In honor of their request, I think I'll order some roaches to feed to my geckos.

Monday, June 21, 2010

Trying to Win

M.D. Creekmore at The Survivalist Blog – a survival blog dedicated to helping others prepare for and survive disaster – with articles on bug out bag contents, survival knife choices and a wealth of other survival information is giving away a 1,000 round case of 9mm – 124 Grain FMJ (a $200 value – donated by LuckyGunner)! To enter, you just have to post about it on your blog. This is my entry. Visit The Survivalist Blog for the details.

Sunday, June 20, 2010

Quote for the Week

The father of a daughter is nothing but a high-class hostage. A father turns a stony face to his sons, berates them, shakes his antlers, paws the ground, snorts, runs them off into the underbrush, but when his daughter puts her arm over his shoulder and says, 'Daddy, I need to ask you something,' he is a pat of butter in a hot frying pan.

Garrison Keillor

Thursday, June 17, 2010

Complete Jesus

Here is a thought provoking article on the character of Jesus, by Paul Coughlin:

No More Christian Nice Girl

Definitely a good read.

Scofflaw!

I just caught our office manager ordering drugs over the telephone while at work!

Well actually, he has a horrible toothache and was ordering a painkiller refill.  I would intervene, but the rest of the staff say they like him on these meds, so I'll let it slide.

Tuesday, June 15, 2010

It's All Relative

I have to make a confession.  I owe a boatload of student loans.  I don't want to get into details, but it's like another mortgage payment.  I tell people I'm paying on two houses. One we live in, the other is held by the United States Department of Education.  It's enough to finance a small country (and probably a couple of their ubiquitous revolutions).

Just today, I was reviewing a request for assistance.  This person is unemployed and owes $420,000 in student loans.

Come to think of it, I'm REALLY not that bad off!

Sunday, June 13, 2010

Quote for the Week

What you have become is the price you paid to get what you used to want.

Mignon McLaughlin

Saturday, June 12, 2010

The Power of Paper

Overheard on the scanner.

Assault in progress at ___________ Street. Complainant is saying that husband grabbed her by the throat and threatened to harm her. He has left the scene but told her that she needs to be gone by the time he gets back. Complainant is concerned and wants to speak with an officer. Complainant also states that she has taken out an EPO against her husband.

An EPO is an emergency protective order. A sheet of paper that tells bad people to please play nice and stay away. Pretty please.

About a minute later, an officer responds.

Please clear me from my last message, and put me on that assault in progress.

I hope the husband didn’t make it back in the meantime.

Of course, I also hope she has taken responsibility for her own defense, instead of counting on someone else to be there and protect her.  Or even worse, expecting a sheet of paper to stand between her and her husband.  That's not going to work.

Friday, June 11, 2010

Overheard in Court

Juvenile Court Judge:  Ms. Smith, why were you late?

Ms. Smith (appears to be about 16 years old and very excited):  Judge, I am so sorry!  I didn't mean to be late!  I had a hard time finding a ride here! You know me!  I've been coming before you since I was 10, and I really have changed!  I was so determined to get here today that I took my mom's car and drove myself here.  And I don't even have a license!

Sunday, June 6, 2010

Quote for the Week

Those who expect moments of change to be comfortable and free of conflict have not learned their history.

Joan Wallach Scott

Saturday, June 5, 2010

Disappearing Act

Hmmm...I posted some entries over the last week, and they seem to have disappeared.  I better check under this desk.  That's odd...