PBA Ban Upheld

But I wish Anthony Kennedy's clerks would proofread better. Bad proofing produces ambiguity, and ambiguity leads to bad law. Take this sentence from the majority opinion:

"The Act excludes most D&Es in which the fetus is re-moved in pieces, not intact."

Now, both Kennedy's opinion and the Syllabus devoted quite a bit of time prior to this discussing how the law in question does not prohibit dismemberment Dilation and Evacuation abortions. But here, he indicates that it prohibits some of them. Why does it say that, you ask? Because of the lack of a comma after "D&Es." If there were a comma there, it would be saying that the Act excludes most D&Es because most D&Es involve the removal of the fetus in pieces. As it reads now, it says that the Act prohibits most of those D&Es that involve removing the fetus in pieces. The presence or absence of the comma changes whether or not the prepositional phrase "in which . . ." is a restrictive (without the comma, written meaning) or descriptive (with the comma, likely the intended meaning) -- and as we can see, thus changes the meaning of the entire sentence. Being a sentence buried deep within an opinion and making a point well established elsewhere, this is pretty harmless. But if we're letting this sort of mistake slip here, how sloppy are we going to be in situations where it really matters?

All that aside, it's an enormously welcome opinion. Kudos to the Court.

Second Amendment News

In what could be a landmark case, the Federal Court of Appeals for the District of Columbia threw out DC's longstanding handgun ban, overturning a District Court ruling from last year. The District has long maintained that the Second Amendment applies only to organized militias, a line of reasoning rejected both by the Court of Appeals and by the tradition of American constitutionalism. The decision is overdue and highly welcome.

What boggles my mind, however, is this comment from the dissent (itself taken from an earlier case, Seegers v. Ashcroft): "the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it."

This statement ignores several key facts. Most importantly, it assumes that the Court has incorporated the Second Amendment through the application of the 14th Amendment, so as to apply its provisions to the states. The Court has never done this, but has rather held on several occasions that the Second Amendment's protection of the right to bear arms is NOT covered by the 14th Amendment's guarantee of equal protection. (Of course, one could argue, as an even more fundamental point, that the entire incorporation doctrine itself is bunk -- but that's another discussion). So, saying that the Second Amendment doesn't apply to the District of Columbia because it's not a state is pointless -- the Second Amendment wouldn't apply to the District even if it were a state.

In fact, the status of the District of Columbia as Federal territory, and its NOT being a state, is what causes the Second Amendment to apply there. The Bill of Rights, along with the rest of the Constitution, binds first and foremost the Federal government. Congress lacks the authority to prohibit the bearing of arms. Yet the District of Columbia's administration, which Congress created and vested with powers, believes that it can. From where has it received such power? Congressus non supplet quod Congressus non habet (to adapt a phrase).

The case is Parker, et al v. District of Columbia.

Chimpanzees?

I've been doing some research for a big paper here recently, and it's led me to dig through law reviews. In general, I've always thought that law reviews were reserved for serious legal scholarship. Not anymore. At least, not if you go to Golden Gate University School of Law, in whose Winter 2007 Law Review appeared an article entitled "The Entitlement of Chimpanzees to the Common Law Writs of Habeus Corpus and De Homine Replegiando," in which the author argues "that individual chimpanzees are entitled to use that common law writ [of Habeus Corpus] to bring their claims to bodily liberty before common law courts."

Now, tell you what -- you find me a chimpanzee that can bring ANY claim, of bodily liberty or otherwise, or do anything that even remotely begins to resemble using the common law, and not only will I eat my hat, I'll agree with this fellow.

Pets aren't people, folks.

Requiescat in Pacem

January 22nd, 1973 - Present