Res Ipsa Blog

Today in a 5-4 decision, the Supreme Court struck down the ban on handguns in the District of Columbia. At issue in District of Columbia v. Heller was whether the Second Amendment protected the right of individuals to bear arms, or whether it applied only to the collective rights of states to maintain militias.

In the majority opinion written by Justice Scalia, the Court held that the individual right to possess a firearm is unrelated to service in a militia, and instead, was a right to bear arms for “traditionally lawful purposes, such as self-defense within the home.” In reaching its decision, the Court examined the language used in the Second Amendment, which provides: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The majority noted that the operative clause used in the Second Amendment was the “right of the people to keep and bear [a]rms.” The Court determined the phrase “right of the people” referred to an individual right rather than a collective right. In dissecting the phrase “keep and bear arms,” the Court found “arms” traditionally referred to “weapons that were not specifically designed for military use and were not employed in a military capacity.” The majority also determined that the most natural meaning of the phrase “keep arms” was “have weapons.” The Court went on to note that every time the phrase “keep arms” was used in the founding era, the phrase referred to an individual right unconnected with militia service. Having addressed the operative clause, the Court went on to address the prefatory clause “[a] well regulated [m]ilitia being necessary to the security of a free [s]tate…” The majority found that the phrase “well-regulated militia” referred to every man who was physically capable of bearing arms. The majority also pointed out that “a militia” was distinguishable from the phrase “organized militia,” and that the phrase “well-regulated” meant only “the imposition of proper discipline and training.” The majority went on to note that the “security of a free state” referred to the “security of the polity” rather than the security of each of the several states. Having addressed each phrase in the pertinent portion of the Second Amendment, the majority concluded that the Second Amendment created an individual right to keep and bear arms.

Majority: Scalia, Roberts, Kennedy, Thomas, Alito

Dissent: Stevens, Souter, Ginsburg, Breyer

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Today, the Supreme Court decided Boumediene v. Bush, affirming that terrorist suspects held in Guantanamo Bay have the right to file habeas petitions in federal courts. The case arose from a habeas petition made on behalf of Lakhdar Boumedine who was being held as an enemy combatant at Guantanamo Bay.

Majority: Kennedy, Stevens, Breyer, Ginsburg, and Souter

Dissent: Roberts, Scalia, Thomas, Alito

Full-length opinion.

Sources: Reuters, SCOTUSblog

More information: Oyez, SCOTUSwiki: amicus briefs

Boumediene: a lesson in drafting dissents.

Oral Arguments

Charming and surprisingly funny, at 72, Scalia seemed to be twenty years younger and in the best of health during his interview that aired today on 60 Minutes. “Nino,” as he is affectionately known, is only child and was born to his Italian immigrant parents. Scalia grew up in Queens, New York and eventually earned his own way into Harvard through persistence and hard work.

In his first-ever major television interview, Scalia provided insight into his position as an originalist, someone who believes that the Constitution means what the drafters originally intended for it to mean. He does not believe in a “living Constitution” that evolves with the times and needs of the citizens. Instead, he believes in an “enduring Constitution” and that change should take place through the legislature, not “activist judges” who try to find rights in the Constitution that simply can’t be found in the Constitution. The only other originalist on the Court is Clarence Thomas.

His ideological position has forced him to make decisions that contradict his own socially-conservative beliefs. For example, in Texas v. Johnson, Scalia joined the majority ruling that flag-burning was protected by the First Amendment. Scalia commented, “If it were up to me, I would throw that bearded, sandal-wearing, flag-burner in jail.”

Commenting on torture, another hot-button issue, Scalia commented that defining torture would be a challenge. He said that he, like most everyone else, was against torture, but not “everything that is hateful and odious is covered by some provision of the Constitution.”

On being a close friend of his liberal benchmate Ginsburg despite their opposing views, Scalia commented, “I attack ideas, I don’t attack people, and some very good people have some very bad ideas. And if you can’t separate the two, you got to get another day job. You don’t want to be a judge, at least not a judge on a multi-member panel.”

Scalia’s new book, Making Your Case, the Art of Persuading Judges, will address how lawyers should address the Court. His co-author is Bryan A. Garner, the editor of Black’s Law Dictionary and author of The Redbook: A Manual on Legal Style.

Update: Bryan A. Garner speaks out about the book on the West Blog. Tune in. (mp3 podcast)

As previously reported, Scalia will be on 60 Minutes tomorrow at 6 Central. Here is a preview:

[youtube=http://www.youtube.com/watch?v=RjaB3cxH-XE&rel=0]

Today, in a 7-2 decision, the Supreme Court held that lethal injections do not violate the Constitution. Writing for the plurality in Baze v. Rees, Chief Justice Roberts stated merely “showing a slightly or marginally safe alternative” was not enough to successfully challenge the method of execution. Instead, there must be proof that the alternate method prevents a “substantial risk of serious harm”

As Justice Stevens pointed out, the issue before the Court was not whether the death penalty itself was unconstitutional, rather only whether the sodium thiopental injection used by Kentucky was unconstitutional or not.

Held: The lethal injection method used by Kentucky did not violate the Constitution.

Plurality Opinion: Roberts, joined by Alito, and Kennedy. Joining in the result: Stevens, Scalia, Thomas, and Breyer

Dissent: Ginsberg and Souter.

More information about the case can be found here.