Patterico's Pontifications


Heller Typos

Filed under: General — Patterico @ 6:10 pm

Eagle-eyed readers of Howard Bashman’s blog noted several typos in the original version of the Heller opinion. Some, but not all, have been corrected in a revised version.

And I have a nit of my own to point out: the justices’ inconsistency (which for Justice Breyer is an internal inconsistency) on whether “machine gun” is one word or two.

In his majority opinion, Justice Scalia refers to “machineguns” as one word at page 52 of the Court’s opinion. Justice Stevens calls them “machine guns” at page 41 of his dissent.

And Justice Breyer can’t make up his mind. He refers to “machine guns” at page 29 of his dissent, but to a “machinegun” at page 34, and to “machineguns” at page 42.

As to which is proper, I express no opinion. Just pick one and stick with it!

That Was Unexpected

Filed under: Dog Trainer,Judiciary,Kozinski — Patterico @ 5:25 pm

So I was driving home along the 110 Freeway tonight and, all of a sudden, I heard L.A. Observed’s Kevin Roderick talking about my blog on KCRW.

He even seemed to be saying nice things.

You can listen here. I can’t recreate the feeling of surprise, though.

You’d Think You Could Expect More From A Former White House Counsel

Filed under: General — WLS @ 2:40 pm

Posted by WLS:

Last week former Nixon White John Dean made the latest of his frequent appearances on Doltermann’s show. 

While covering the FISA compromise legislation, and the retroactive immunity for telecommunication companies contained in the legislation, Dean and Doltermann had the following exchange:

DEAN:  Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill.  One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability.  And that something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.”  And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through.  But that doesn‘t mean I‘m going to give the telecoms a pass.”  I would love it if he gets on the Senate floor and says, “I‘m keeping that option opened.”

OLBERMANN:  In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN:  Exactly.  And it looks to me, as I read this bill and talk to a number of people in Washington familiar with the bill, some who are involved in the negotiations, and they say, “You know – we just didn‘t think about this issue.”  So, as it goes to the Senate, maybe Obama‘s got a shot to take, you know, a future look at this thing and not let them have the pass that they think they‘re getting.

One problem with this brillant exchange of ideas — there’s a long-standing line of legal precedent that says its a violation of the due process clause for the goverment to tell somebody to do something with the representation that its legal, and then turnaround and prosecute them on the basis that the conduct was illegal.   From Cox v. Louisiana, 379, US 559 (1965):

In Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344, this Court held that the Due Process Clause prevented conviction of persons for refusing to answer questions of a state investigating commission when they relied upon assurances of the commission, either express or implied, that they had a privilege under state law to refuse to answer, though in fact this privilege was not available to them. The situation presented here is analogous to that in Raley, which we deem to be controlling. As in Raley, under all the circumstances of this case, after the public officials acted as they did, to sustain appellant’s later conviction for demonstrating where they told him he could ‘would be to sanction an indefensible sort of entrapment by the State-convicting a citizen for exercising a privilege which the State had clearly told him was available to him.’ Id., at 426, 79 S.Ct., at 1260. The Due Process Clause does not permit convictions to be obtained under such circumstances.

The President issued an Executive Order authorizing the program, and the Administration’s agents then went to the telecomm companies to have them put in place the technical infrastructure to allow NSA monitoring consistent with the Executive Order.   

And John Dean thinks the telecomms might be subject to criminal prosecution for their compliance after Congress insulates them from civil liability???

What a moron.

Chemerinsky v. Chemerinsky

Filed under: General — Patterico @ 1:24 pm

Erwin Chemerinsky argues in today’s L.A. Times that Heller is an example of judicial activism:

If the terms “judicial activism” and “judicial restraint” have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

Chemerinsky says that when a constitutional provision is ambiguous, judicial restraint counsels that the Supreme Court defer to legislative enactments:

At the very least, one would expect that a high court committed to judicial restraint would have used the 2nd Amendment’s ambiguity to defer to the political process and to follow precedent.

Here is a persuasive case for the opposite view, arguing that ambiguous constitutional provisions should be resolved by the Court:

Mark, you say you’ve never heard a persuasive argument as to why someone committed to “democracy” would want courts to determine the meaning of the Constitution when there is disagreement over its meaning. I think that the basic answer came from Marbury v. Madison: the limits of the Constitution have no meaning if they are not enforced and the other branches of government see their role as pleasing constituents, not upholding the Constitution.

. . . .

The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.

Well said.

You might be interested to know who made this argument. He is a well-known law professor by the name of Erwin Chemerinsky.

L.A. Times Publisher Hints at More Staffing Reductions

Filed under: General — Patterico @ 12:15 pm

I think this memo from L.A. Times publisher David Hiller is a nice way of saying there will be more staffing cuts at the paper in coming weeks and months.

H/t: reader C.B.

McCain and Obama Buck the National Consensus on Child Rape

Filed under: General — Patterico @ 8:13 am

The other day, Justice Kennedy told us that “there is a national consensus against capital punishment for the crime of child rape.”

John McCain and Barack Obama both issued statements supporting capital punishment for the worst cases of child rape.

It’s rare to see the two main contenders for the presidency arguing against the “national consensus” on an issue.

It just goes to show you the extraordinary political courage that Obama and McCain both showed on this issue.

They support death for the worst cases of child rape. And that is their stand — no matter how many votes it costs them!

TIME: McCain Edged Out Obama on National Security Issues . . . by Twenty Points

Filed under: Dog Trainer — Patterico @ 7:29 am

A TIME Magazine poll finds Barack Obama’s lead to be 5 points. The writers of the article learned their skills at describing gaps from the L.A. Times:

McCain, a highly decorated Vietnam veteran, edged out Obama on national security issues. When asked who “would best protect the U.S. against terrorism,” 53% of respondents chose McCain to just 33% for Obama. And nearly half, 48% to Obama’s 38%, trusted McCain to handle the war in Iraq, though 57% said they believed the U.S. was wrong to invade Iraq and 56% said they would like to see the troops brought home within the next two years.

Ed Morrissey says:

So McCain edged out Obama by twenty points?

Sure. It’s only one point more than a “narrow margin”!

(H/t aunursa.)

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