Second Amendment

It comes as no surprise to those who know me that I do not believe in an individual right to bear arms, and that I think the recent Supreme Court decision to the contrary is plain wrong. One thing that is clear to me and still unclear from the Court is whether the 2^nd Amendment applies to the states and localities that impose gun control. This concept, known as incorporation, is that the 14^th Amendment guarantees of due process and equal protection incorporate provisions of the Bill of Rights and apply them to the states.

In the middle of the 20^th century, there was a major debate on whether the 14^th Amendment incorporated all of the Bill of Rights, some of the Bill of Rights or none. This has largely been settled, and it is now generally acknowledged that the 14^th Amendment applies most but not all of the Bill of Rights to the states. The basic standard that the Supreme Court has applied is to consider whether a Right is "fundamental to the concept of ordered liberty" as Justice Cardozo put it in 1937. Among the rights not incorporated are the right to a jury in civil trials (7^th Amendment) and the right to be indicted by a grand jury (5^thAmendment). These rights, while of debatable worth do seem to at least speak to values of due process that this country holds dear. The right to hold a weapon, on the other hand, does not seem to be fundamental in any way, despite the protestations to the contrary by the NRA.

It would seem that the Second Amendment is also a right of the states against the Federal Government, in that it is about guaranteeing a right to a state militia (essentially the equivalent of today's National Guard). So even if the Court is uncomfortable with state gun regulation (though I am not sure why anyone is against gun control), how do they read in a limitation on state gun regulation into an amendment? The states have the right to a well regulated militia, so even if a personal right exists to guns, it is not applicable when a state chooses to limit the right. This seems to be very obvious, so I would appreciate comments that explain why I am wrong.

Wang

To change subjects, why the hell isn't Chien Mien Wang in tonight's game?

More on Sotomayor

Republicans will clearly claim that Sotomayor is merely the beneficiary of affirmative action and is therefore not qualified. This is their general take on liberal appointees who benefit from affirmative action, but not on conservatives.
Leaving aside the fact that there is no evidence that Judge Sotomayor benefitted from affirmative action at all, by all accounts (including my own) she is a highly intelligent and accomplished woman, why is it that conservatives only view liberal women and minorities as tainted by affirmative action. Clarence Thomas was a beneficiary of affirmative action and hates the world for it now. George W. Bush was a huge beneficiary of affirmative action as a member of the Bush clan and no Republican will ever admit that he was unfit for low office, let alone high office. That brings me to Sam Alito and John Roberts. If you are choosing judges for the Supreme Court because of how white and reassuring they are to the conservative base, it is also affirmative action.
Contrary to what conservatives claim about their heroes on the court, not a single one of them is all that impressive. Roberts climbed the republican ladder through the Reagan and Bush administrations, and then got a job as a partner at a conservative leaning law firm. His career was impressive, but no better than hundreds of other prominent lawyers. He then went on to deceive the senate and the citizenry of the United States about his radical right wing views. As Chief Justice, he has not been particularly successful, mostly complaining that he and his colleagues are underpaid ($179,000 a year, with life tenure and a full pension at retirement; I am sure many others are crying their eyes out for you John). Alito was not a particularly distinguished judge, and nothing about him justifies the praise the conservatives heaped on him. He did not have a record on the appeals court that anyone would have said – this is a Justice in the making! I haven't discussed Scalia and Thomas, both of whom have been terrible judges. Thomas is an ideologue who refuses to acknowledge any fact that disturbs his conservative agenda. Scalia is a bullying jerk, who regularly writes opinions attempting to embarrass his colleagues and others. Scalia is among the worst judges anywhere (other than those guys in PA sending kids to jail for money).

Sotomayor

A few years ago, while at Columbia Law School, I interned for Judge Sotomayor. This was part of a Columbia sponsored internship program and it was a good learning experience. I liked the judge a lot, and she is really tough and really smart. She can definitely hold her own among the conservative jerks on the Supreme Court, which I think is important.

My Website

I haven't posted in a while so I thought I would get back to it with a couple of posts. First off, check out my new website, http://www.avifrischlaw.com. I am attempting to start a law practice, so please check it out.

Souter’s Replacement

Justice Souter has been a perfectly decent justice, but of course no one can really say anything he has written or accomplished in nearly 20 years on the court. As has been noted by others, this is probably due to his being appointed as a closet conservative who turned out to be more of a closet liberal. So who should Obama appoint as his replacement? Many of the intelligentsia are pushing for people similar to those Bill Clinton appointed, reliable incrementalist moderate liberals who can be relied upon to vote as expected on the major issues that determine confirmation. Similarly, this post in the New Republic argues against a "liberal Scalia." This post is totally wrong, however. The need for a liberal Scalia type if for a new theorist to take the terms of legal debates away from the conservatives. For many years now, conservatives have pushed the debate by claiming that activist judges were distorting the original meaning of the constitution. This is and cannot be the correct meaning of the constitution, but liberals have ceded the intellectual debate and have been attempting to hold onto the advances of the Warren Court while conceding that they might not have the proper constitutional foundation. We need new liberal justices who can perform the intellectual heavy lifting that Scalia has been doing for years. The specific nature of Scalia's personality, however, his being a total ass, should not be copied.

Chrysler Holdouts

The Times Dealbook Blog has a post here in regard to the issues raised by government involvement with some of the creditors of Chrysler. Unfortunately, it does not appear to be correct in almost any of its points. Sure, the secured creditors are entitled to the full value of their security. It is clear that these claims are not fully secured, so they aren't entitled to the full value of their claims. If they wanted to foreclose they could have started to already. Do they want factory land in Michigan? Only if they can sell it for more than they were offered in the negotiations, which I think in this case is clearly not going to result in a hefty recovery. Also, these people are vultures, speculators or whatever negative term you want to use to describe them. Those pejoratives have no impact on their rights under the law. They purchased their claims fairly on the market and have a right to collect them, the morality of it is irrelevant.

That point, however, brings us to the reason why the commenter was so wrongheaded in his comments. They also bought the debt of a highly political situation, and the court has no reason to void the voting rights of other creditors just because they are taking a position influenced by the government, which of course is also a creditor. No aspect of the Bankruptcy Code requires creditors to act to directly maximize recovery of the other creditors, rather they are taking their best interest to heart and not fighting the government, seems rational to me (and if not, so what? Maybe bank shareholders will disagree, but that would be handled in a Delaware court not this forum). Finally, since when do courts not handle politically charged issues? Many cases are politically charged and the courts need to handle them fairly despite the politics, which is the meaning of an independent judiciary, not one that rules against the government just to avoid serving the public interest.