Tuesday, April 21, 2009

a couple of links

First, and continuing with the book theme, from the Tor publishing website: author Jo Walton has a series of essays that are worthwhile on Lois McMaster Bujold's Vorkosigan series, which have won half a dozen Hugo and Nebula Awards and set the bar for space opera. Those essays are capped by an author interview. For a taste of Bujold's writing, check this out at the Baen Free Library.

Next, a new addition to the blog roll- hunting, fishing, thoughts on gear and more, with pictures, from way up north.

Last, in the "demons ordering snowcones" department, I read via SaysUncle the news that a federal circuit court of appeals has handed down a ruling on the subject of whether the Second Amendment right to keep and bear arms applies against state and local governments, a question of some significance after last year's Heller decision from the Supreme Court. The Court of Appeals for the Ninth Circuit concludes that the Second does in fact apply to the states.

Skimming the opinion, it is interesting for a few things. First, it illustrates how the law-review influenced practice of footnotes is getting out of hand in legal opinions. While frequent footnotes may cause an opinion to look more like a law review article, and thus scholarly, they make interrupt the flow of logic and make it harder to read. Any footnote more than a sentence long, or which is other than truly tangential, should be incorporated into the text. Then again, perhaps I'm just a fan of incorporation.

Next, the first section of the opinion is, footnotes aside, a fairly clearly written primer on just what a mess the doctrine of incorporation (of the Bill of Rights as to state governments) is in today's law. I agree with the view that the "privileges and immunities" clause of the Fourteenth Amendment should have prevented this debate. Maybe someday we'll have a Supreme Court that reads the whole of the Constitution into effect. Maybe we're even headed that way.

Which leads to the last point, and that is the slippery slope effect of legal arguments. Once the Supreme Court addressed the Second Amendment and its underpinnings in Heller, something which it had largely avoided, then it opened the door to the right to keep and bear arms being addressed just as other rights enshrined in the Constitution. For example, and from the opinion:
"Heller reveals evidence similar to that on which Duncan relied to conclude that the Due Process Clause incorporated the right to a jury in criminal cases. Heller began with the 1689 English Declaration of Right (which became the English Bill of Rights), just as Duncan did. Compare Heller, 128 S. Ct. at 2798 (noting that the Declaration of Right included the right to bear arms), with Duncan, 391 U.S. at 151 (noting that the Declaration of Right included the right to a jury trial). Thus the right to keep and bear arms shares ancestry with a right already deemed fundamental. Cf. Resweber, 329 U.S. at 463 (plurality opinion) (relying solely on the presence of a prohibition against cruel and unusual punishments in the English Bill of Rights for the conclusion that it is incorporated into the Due Process Clause)."

Last, I reprint footnote 18 of the decision whole, as I find it obvious, a nice turn of phrase, refreshing coming from a Federal Circuit Court of Appeals, and amazing coming from the Ninth Circuit:
The County and its amici point out that, however universal its earlier support, the right to keep and bear arms has now become controversial. See generally Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain."

In the end perhaps the denizens of hell aren't looking for a jacket after all. The court upheld an Alameda County ordinance forbidding possession of firearms or ammunition on county property and thus closing a popular gunshow held on the fairgrounds, concluding "The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for 'sensitive places' that Heller recognized." Prohibition=nonfacilitation and the exceptions will overwhelm the rule by the time Second Amendment jurisprudence settles out.

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