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galenanorth posted:constitutionally unbannable and unregulated privatized nuke ownership quote:exceptionally lethal weapons of war quote: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. I really hate to say it, but if anything the 2nd amendment only protects exceptionally lethal weapons of war. How useful is your militia going to be if everyone shows up with .22LR pistols?
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Jun 24, 2020 01:44
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hobbesmaster posted:I really hate to say it, but if anything the 2nd amendment only protects exceptionally lethal weapons of war. If we consider the militia must also be "well regulated" does an originalist view of the Second Amendment mean only Revolutionary War reenactors are protected?
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Jun 24, 2020 02:21
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That'd be the best Thomas ruling ever.
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Jun 24, 2020 02:23
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Rigel posted:Usually not. Almost nothing ever leaks from the SCOTUS. From what we understand, whoever is originally assigned the majority opinion by the CJ or the most senior judge in the majority is only ever promised a chance at writing it, and there's a lot of back and forth as the opinion is written. If they can't hold the majority, then someone else ends up with it. It feels like this MUST have been what happened to Alito in the Fisher case after Scalia passed.
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Jun 24, 2020 02:34
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hobbesmaster posted:I really hate to say it, but if anything the 2nd amendment only protects exceptionally lethal weapons of war. The Supreme Court has actually spoken on this point in Heller and disagreed with you: quote:It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
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Jun 24, 2020 02:41
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The best judicial philosophy is hyperoriginalism where you become so attuned to the minds of the Founders that you can write the exact opinions they would. "It is the unanimous opinion of this auguſt court, that we hereby order the lower court to shew us once againne the methode of calling up ſelf-photographs of naked ladies upon theſe wondrous 'touchſcreen' inventionnes"
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Jun 24, 2020 02:43
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ulmont posted:The Supreme Court has actually spoken on this point in Heller and disagreed with you: that...does not seem like originalism "it may be that the founders' intent was for the militia to possess military grade weapons, but that would be a bad idea so you know what gently caress their intent, we'll just legislate from the bench and update the 2nd amendment to what we think they should have said"
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Jun 24, 2020 02:46
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VitalSigns posted:that...does not seem like originalism scalia.exe
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Jun 24, 2020 02:53
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VitalSigns posted:that...does not seem like originalism Where they come out is basically anything a militiaman might have brought in 178x: quote:We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25 Actually you might want to read all of heller for better written originalism: https://www.law.cornell.edu/supct/html/07-290.ZO.html
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Jun 24, 2020 02:56
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yeah that makes no sense at all, they're not applying the will of the founders, they're just making up the text they wish the founders had written why would the founders classify machine guns as too military, but semiautos not. no answer why is "common use" defined as what people are using in 1939, instead of 1787 or 2020, the founders didn't write Miller and stare decisis is just an illegitimate power grab or whatever saying that banned weapons like machine guns aren't covered by the second amendment because they aren't in common use (due to the ban on machine guns) is just a circular argument people can own machine guns for lawful purposes, that's why licenses exist, marksmanship contests were lawful in 1787 (also, dueling lol)
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Jun 24, 2020 03:15
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ulmont posted:Where they come out is basically anything a militiaman might have brought in 178x: quote:We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. Circular logic doesn't make a for a well written opinion. Since law-abiding citizens couldn't, by definition, use an unlawful weapon for lawful purposes wouldn't that mean all gun control was permissible? After all, once a legislature passes a statute restricting a weapon it cannot be used by law-abiding citizens for lawful purposes. They're essentially saying "lawful weapons (protected by the Second Amendment) are those used lawfully by law-abiding people" which provides zero insight into whether I can pass a law making possession of a particular weapon unlawful. Also, short barrel shotguns are a terrible example because they are legal if you're willing to apply and pay $200 for a tax stamp...unless your state bans them. So in some states SBS are legal and in others they aren't. If enough "law abiding people" apply for a Title II firearm does that that weapon suddenly have the additional Second Amendment protections pistols enjoy under Heller? GamingHyena fucked around with this message at 03:25 on Jun 24, 2020 |
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Jun 24, 2020 03:22
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The whole point of an armed populace being the militia is that when you need to call them up for war they show up already armed, so you don't have to arm them or at least not all of them. If you ban them from owning the arms they would actually need to use, then you have to arm them all, defeating the whole point of the original intent. Heller has nothing to do with originalism, they're just starting with the gun policy modem Republicans want, and working backwards from there to determine the founders' "intent"
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Jun 24, 2020 03:37
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GamingHyena posted:So in some states SBS are legal and in others they aren't. If enough "law abiding people" apply for a Title II firearm does that that weapon suddenly have the additional Second Amendment protections pistols enjoy under Heller? Or the opposite situation, if guns go out of fashion and no one in gen Z owns one and they're not in common use by 2050 do second amendment protections under Heller just disappear? Could states then ban all guns and keep them out of common use so the next generation of Americans can't own them even if they want to?
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Jun 24, 2020 03:54
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VitalSigns posted:The whole point of an armed populace being the militia is that when you need to call them up for war they show up already armed, so you don't have to arm them or at least not all of them. Exactly. Grandpa Gunowner has a shotgun for hunting and a pistol for protection and he only plans to use them to shoot the correct game/people so of course he has a Second Amendment right to keep them. Scalia sees himself like Grandpa and so Grandpa's rights are protected (Scalia was an avid hunter who actually passed away while on a quail hunt). But Grandpa/Scalia doesn't want weird stuff like an anti-tank weapon or a daisy cutter. Plus, everyone knows America has the most powerful military in the world so the chance that we would actually need Grandpa to bring his Beretta to defend the nation are slim to none. The only people nowadays who would use military weapons in America that aren't already in the military are probably people our law enforcement/military would fight. But we can't say that of course if we're claiming Grandpa's individual right to a firearm flows from him being in a militia. So Heller hides behind the fiction that lets Grandpa keep his pistol in case he theoretically needs to reenact Red Dawn, but doesn't let the nuts have a 2A right to a Stinger even though logically you can't have one without the other. GamingHyena fucked around with this message at 04:00 on Jun 24, 2020 |
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Jun 24, 2020 03:56
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GamingHyena posted:Exactly. Grandpa Gunowner has a shotgun for hunting and a pistol for protection and he only plans to use them to shoot the correct game/people so of course he has a Second Amendment right to keep them. Scalia sees himself like Grandpa and so Grandpa's rights are protected (Scalia was an avid hunter who actually passed away while on a quail hunt). But our dumb expeditionary stuff have called upon the reserves and then put strains on the national guard. I think the most logical but craziest and most likely to anger absolutely everyone interpretation is that anything but standard issue equipment for an infantryman can be restricted. So you only have the right to have a M16A2 or M16A4 rifle for each man* in your household. No stingers or anything else, cannons and cavalry and all that other stuff wasn't expected from the militia. Strangely this would both be significantly more and less restrictive than current laws. *i forget did they change the selective service draft stuff so the "unorganized militia" that can be drafted includes women?
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Jun 24, 2020 04:20
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The equivalent of the revolutionary war militia would be modern guerilla forces fighting asymmetrical warfare to exhaust an occupying power, so the originalist interpretation would be that you could own anything your standard Iraqi insurgent used against the US military.
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Jun 24, 2020 04:28
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hobbesmaster posted:But our dumb expeditionary stuff have called upon the reserves and then put strains on the national guard. I think the most logical but craziest and most likely to anger absolutely everyone interpretation is that anything but standard issue equipment for an infantryman can be restricted. So you only have the right to have a M16A2 or M16A4 rifle for each man* in your household. No stingers or anything else, cannons and cavalry and all that other stuff wasn't expected from the militia. Strangely this would both be significantly more and less restrictive than current laws. Wouldn't the current service pistol also be allowable?
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Jun 24, 2020 04:28
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Charlz Guybon posted:Wouldn't the current service pistol also be allowable? And presumably light machine guns which can be carried in lieu of the M16 like the M249. Also the M4 carbine Possibly individual antitank guns like the AT4 but maybe that's ordinance which you wouldn't plan for individual militiamen to bring from home. On the other hand if there had been modern weaponry in the French and Indian war, maybe a lot of colonists would prudently have a stash of antitank guns in case of Iroquois raids VitalSigns fucked around with this message at 04:39 on Jun 24, 2020 |
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Jun 24, 2020 04:37
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I’d like to go visit (for a very short time) the alternate universe where you're allowed to own your own Stinger and you can shoot down passing helicopters for violating your airspace
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Jun 24, 2020 04:52
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that's the constitutionally correct interpretation, the founders were A-OK with private citizens owning cannon and warships and basically anything up to and including a fortification and all supporting paraphernalia, but lol if you'd get anybody to admit that a well-endowed citizen should be able to buy an antiaircraft battery/etc. the beliefs have just shifted way towards state-centrism since even the mid 1800s let alone the 1700s. militaries just shifted away from militias and towards professional militaries. the historical equivalent of an airliner flying past a private antiaircraft battery is a merchant ship sailing past a heavily armed privateer (licensed by the continental congress) but we just don't like that, despite the owner in question being much more readily accessible to the law should anything go wrong. the actual answer is that the 2nd should be revised, but as it exists, yeah, it basically does and historically has been established to promote ownership of ordnance and any military-necessary weapons. Paul MaudDib fucked around with this message at 05:08 on Jun 24, 2020 |
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Jun 24, 2020 05:02
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VitalSigns posted:that...does not seem like originalism What they said was that the amendment contemplated people bringing their weapons they commonly had at home when their service was needed. However, they have also said that the clause was merely an explanation for why the right was created, and is not actually a limitation. Just because the explanation for the right is no longer valid does not kill the right itself. Basically "everyone has the right to keep and bear arms, and oh by the way, if you happen to be curious as to why we did that, this was our reason" Many people read the amendment differently, but that is how the only opinion which currently matters saw it. edit: regarding why doesn't the amendment protect high-end military weapons. Its not that the amendment says people should possess advanced weaponry, because they didn't exist when the amendment was written. What did exist was weapons people commonly had at home, so that and only that is what was protected. Freakishly destructive weapons we invented later that people don't have in gun safes is not protected. The amendment is not trying to create a militia, it is only protecting small arms commonly had at home, and merely talks about the need for a militia as an explanation for why they did that. Rigel fucked around with this message at 05:42 on Jun 24, 2020 |
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Jun 24, 2020 05:37
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Paul MaudDib posted:it basically does and historically has been established to promote ownership of ordnance and any military-necessary weapons. That is not what the SCOTUS said, though.
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Jun 24, 2020 05:43
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Paul MaudDib posted:a well-endowed citizen should be able to buy an antiaircraft battery/etc. Let me show you my crew-served weapon
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Jun 24, 2020 06:13
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Rigel posted:What they said was that the amendment contemplated people bringing their weapons they commonly had at home when their service was needed. This is just circular reasoning. It reduces to: "The founders intended that machine guns can be banned because we banned them" If everyone went out tomorrow and bought an AR-15 and illegally modified it to be full auto, then full auto weapons would be commonly had at home so would they gain second amendment protections? What other rights disappear if people don't commonly exercise them, if the protests stop can they be banned, if enough print newspapers go under do print publications lose free press protections? Rigel posted:That is not what the SCOTUS said, though. VitalSigns fucked around with this message at 11:39 on Jun 24, 2020 |
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Jun 24, 2020 11:32
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VitalSigns posted:that...does not seem like originalism As I posted earlier Scalia's decision in Heller is the best example of why originalism shouldn't be taken seriously.
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Jun 24, 2020 13:31
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https://forums.somethingawful.com/showthread.php?threadid=3928980 Lowtax is currently 3/3 for accusations of domestic abuse. I'd really like to stay in contact will you all, as this you all manage to make supreme court decisions comprehensible. Does anyone want to set up a discord?
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Jun 24, 2020 16:36
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I’d like to see the predatory clause of the second amendment be used to support things like school breakfast programs with the idea that underfed children cannot grow up to be effective militia soldiers.
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Jun 24, 2020 17:11
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Ron Jeremy posted:I’d like to see the predatory clause of the second amendment be used to support things like school breakfast programs with the idea that underfed children cannot grow up to be effective militia soldiers. Now that'd be interesting, because you could back door a ton of social programs under the guise of preparing the citizenry for service.
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Jun 24, 2020 17:22
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That was the original case for school lunch programs, after we had trouble finding enough able-bodied men to fight world war 1 thanks to the appalling gilded age rates of poverty, malnutrition, and preventable health problems
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Jun 24, 2020 17:28
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Dameius posted:Now that'd be interesting, because you could back door a ton of social programs under the guise of preparing the citizenry for service. That's one of the reasons they were instituted in the first place, actually.
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Jun 24, 2020 17:32
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Is there nothing that rampant American militarism can't be used for? 
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Jun 24, 2020 17:34
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it's also why the """originalist""" interpretation of the militia clause is that it absolutely is most definitely certainly not about creating an actual militia, it's just an explanation for why the stuff modern Republicans like are constitutional rights and only that specific stuff nothing else no rights for you
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Jun 24, 2020 17:37
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golden bubble posted:https://forums.somethingawful.com/showthread.php?threadid=3928980 I mean, for comprehensible Supreme Court explanations you can do worse than SCOTUSBlog's case discussions; they tend to be readable.
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Jun 24, 2020 20:23
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VitalSigns posted:that...does not seem like originalism just call what you dont like a prefertory clause bing bong so simple originalism owns
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Jun 24, 2020 23:53
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hobbesmaster posted:I wonder what the oldest bit of common law he’s used is. The first thing that came to mind was Brown v. Entertainment Merchants Assn., with Thomas dissenting from the opinion that violent video games are covered by the First Amendment: quote:In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puritan society.” S. Mintz, Huck’s Raft 13 (2004) (hereinafter Mintz); see also R. MacDonald, Literature for Children in England and America from 1646 to 1774, p. 7 (1982) (hereinafter MacDonald). The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz 13. quote:Locke’s and Rousseau’s writings fostered a new conception of childhood. Children were increasingly viewed as malleable creatures, and childhood came to be seen as an important period of growth, development, and preparation for adulthood. See Mintz & Kellogg 17, 21, 47; M. Grossberg, Governing the Hearth 8 (1985) (hereinafter Grossberg). Noah Webster, called the father of American education, wrote that “[t]he impressions received in early life usually form the characters of individuals.” quote:The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children. The Puritan tradition in New England laid the foundation of American parental authority and duty. See MacDonald 6 (“The Puritans are virtually the inventors of the family as we know it today”). [...] In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents.
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Jun 25, 2020 00:06
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FronzelNeekburm posted:The first thing that came to mind was Brown v. Entertainment Merchants Assn., with Thomas dissenting from the opinion that violent video games are covered by the First Amendment: Thomas has to have used Blackstone's Commentaries on the Laws of England and also the Magna Carta, as previously noted.
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Jun 25, 2020 02:17
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ulmont posted:Thomas has to have used Blackstone's Commentaries on the Laws of England and also the Magna Carta, as previously noted. A portion of his (majority) opinion in Oil States dealt with the practices of the Reformation era English patent law and the use of Privy Council revocation as evidence that patent revocation isn’t a common law issue that must be committed to a jury.
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Jun 25, 2020 04:35
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Kazak_Hstan posted:just call what you dont like a prefertory clause bing bong so simple originalism owns If that doesn't work just say the founders got the idea to write the constitution while watching 24, and start citing Jack Bauer as evidence of original intent. No one can overrule you, and that's indistinguishable from truth!
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Jun 25, 2020 05:44
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 Opinion! DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM TLDR: A potential asylum seeker about to be deported under “expedited removal” can’t file a federal habeus petition to add on additional asylum claims, and that doesn’t violate the Constitution (either because the Constitution says “you can’t suspend habeus corpus” or because it says “you get due process”) Majority Opinion (Alito): Most asylum claims...ultimately fail, and some are fraudulent. In 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–546, it crafted a system for weeding out patently meritless claims and expeditiously removing the aliens making such claims from the country. … Among other things, IIRIRA placed restrictions on the ability of asylum seekers to obtain review under the federal habeas statute, but the United States Court of Appeals for the Ninth Circuit held that these restrictions are unconstitutional. According to the Ninth Circuit, they unconstitutionally suspend the writ of habeas corpus and violate asylum seekers’ right to due process. We now review that decision and reverse. … Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.”...Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country. Respondent’s due process argument fares no better. While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. … In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent’s claims, and IIRIRA’s limitations on habeas review are constitutional as applied. ... An applicant [for admission to the US] is subject to expedited removal if, as relevant here, the applicant (1) is inadmissible because he or she lacks a valid entry document; (2) has not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) is among those whom the Secretary of Homeland Security has designated for expedited removal. Once “an immigration officer determines” that a designated applicant “is inadmissible,” “the officer [must] order the alien removed from the United States without further hearing or review.” Applicants can avoid expedited removal by claiming asylum. If an applicant “indicates either an intention to apply for asylum” or “a fear of persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” The point of this screening interview is to determine whether the applicant has a “credible fear of persecution.” … The IIRIRA provision at issue in this case, §1252(e)(2), limits the review that an alien in expedited removal may obtain via a petition for a writ of habeas corpus. That provision allows habeas review of three matters: first, “whether the petitioner is an alien”; second, “whether the petitioner was ordered removed”; and third, whether the petitioner has already been granted entry as a lawful permanent resident, refugee, or asylee. ... Respondent Vijayakumar Thuraissigiam, a Sri Lankan national, crossed the southern border without inspection or an entry document at around 11 p.m. one night in January 2017. A Border Patrol agent stopped him within 25 yards of the border, and the Department detained him for expedited removal. He claimed a fear of returning to Sri Lanka because a group of men had once abducted and severely beaten him, but he said that he did not know who the men were, why they had assaulted him, or whether Sri Lankan authorities would protect him in the future. He also affirmed that he did not fear persecution based on his race, political opinions, or other protected characteristics. [He was not found to have a credible fear of applicable persecution.] ... Respondent then filed a federal habeas petition. Asserting for the first time a fear of persecution based on his Tamil ethnicity and political views, he argued that he “should have passed the credible fear stage,” But, he alleged, the immigration officials deprived him of “a meaningful opportunity to establish his claims” and violated credible-fear procedures by failing to probe past his denial of the facts necessary for asylum. … The Ninth Circuit reversed. It found that our Suspension Clause precedent demands “reference to the writ as it stood in 1789.” But without citing any pre-1789 case about the scope of the writ, the court held that §1252(e)(2) violates the Suspension Clause. The court added that respondent “has procedural due process rights,” specifically the right “‘to expedited removal proceedings that conformed to the dictates of due process.’” … The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” we wrote that the Clause, at a minimum, “protects the writ as it existed in 1789,” when the Constitution was adopted. And in this case, respondent agrees that “there is no reason” to consider whether the Clause extends any further. … This principle dooms respondent’s Suspension Clause argument, because neither respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a petitioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release. … In this case, however, respondent did not ask to be released. Instead, he sought entirely different relief: vacatur of his “removal order” and “an order directing [the Department] to provide him with a new . . . opportunity to apply for asylum and other relief from removal.” Such relief might fit an injunction or writ of mandamus—which tellingly, his petition also requested—but that relief falls outside the scope of the common-law habeas writ. … Respondent and amici supporting his position [of a broader habeus right] have done considerable research into the use of habeas before and around the time of the adoption of the Constitution, but they have not unearthed evidence that habeas was then used to obtain anything like what is sought here, namely, authorization for an alien to remain in a country other than his own or to obtain administrative or judicial review leading to that result. All that their research (and the dissent’s) shows is that habeas was used to seek release from detention in a variety of circumstances….Because respondent seeks to use habeas to obtain something far different from simple release, his cause is not aided by the many release cases that he and his amici have found. … We come, finally, to the more recent cases on which respondent relies. The most recent, Boumediene, is not about immigration at all. It held that suspected foreign terrorists could challenge their detention at the naval base in Guantanamo Bay, Cuba. They had been “apprehended on the battlefield in Afghanistan” and elsewhere, not while crossing the border. They sought only to be released from Guantanamo, not to enter this country. And nothing in the Court’s discussion of the Suspension Clause suggested that they could have used habeas as a means of gaining entry. Rather, the Court reaffirmed that release is the habeas remedy though not the “exclusive” result of every writ, given that it is often “appropriate” to allow the executive to cure defects in a detention. Respondent’s other recent case is St. Cyr, in which the Court’s pertinent holding rejected the argument that certain provisions of IIRIRA and the Antiterrorism and Effective Death Penalty Act of 1996 that did not refer expressly to habeas should nevertheless be interpreted as stripping the authority conferred by the habeas statute. … In addition to his Suspension Clause argument, respondent contends that IIRIRA violates his right to due process by precluding judicial review of his allegedly flawed credible-fear proceeding. The Ninth Circuit agreed, holding that respondent “had a constitutional right to expedited removal proceedings that conformed to the dictates of due process.”...That holding is contrary to more than a century of precedent. In 1892, the Court wrote that as to “foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law,” “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Since then, the Court has often reiterated this important rule. … Because the Ninth Circuit erred in holding that §1252(e)(2) violates the Suspension Clause and the Due Process Clause, we reverse the judgment and remand the case with directions that the application for habeas corpus be dismissed. Lineup: Alito, joined by Roberts, Thomas, Gorsuch, and Kavanaugh. Concurrence by Thomas. Concurrence in the judgment by Breyer, joined by Ginsburg. Dissent by Sotomayor, joined by Kagan. Concurrence (Thomas): I join the Court’s opinion, which correctly concludes that respondent’s Suspension Clause argument fails because he does not seek a writ of habeas corpus. I write separately to address the original meaning of the Suspension Clause, which guarantees that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Founders appear to have understood “[t]he Privilege of the Writ of Habeas Corpus” to guarantee freedom from discretionary detention, and a “suspen[sion]” of that privilege likely meant a statute granting the executive the power to detain without bail or trial based on mere suspicion of a crime or dangerousness. Thus, the expedited removal procedure in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–546, is likely not a suspension. Concurrence in the Judgment (Breyer, joined by Ginsburg): The statute at issue here, 8 U. S. C. §1252(e)(2), sets forth strict limits on what claims a noncitizen subject to expedited removal may present in federal habeas corpus proceedings. I agree that enforcing those limits in this particular case does not violate the Suspension Clause’s constitutional command: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” But we need not, and should not, go further. We need not go further because the Government asked us to decide, and we agreed to review, an issue limited to the case before us. The question presented is “whether, as applied to respondent, Section 1252(e)(2) is unconstitutional under the Suspension Clause.” All we must decide is whether, under the Suspension Clause, the statute at issue “is unconstitutional as applied to this party, in the circumstances of this case.”...Nor should we go further. Dissent (Sotomayor, joined by Kagan): The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those respondent raises here, which fall within the heartland of habeas jurisdiction going directly to the origins of the Great Writ. The Court thus purges an entire class of legal challenges to executive detention from habeas review, circumscribing that foundational and “stable bulwark of our liberties,” By self-imposing this limitation on habeas relief in the absence of a congressional suspension, the Court abdicates its constitutional duty and rejects precedent extending to the foundations of our common law. Making matters worse, the Court holds that the Constitution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to determine whether they may seek shelter in this country or whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance. In doing so, the Court upends settled constitutional law and paves the way toward transforming already summary expedited removal proceedings into arbitrary administrative adjudications. Today’s decision handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive discretion unchecked in the very circumstance where the writ’s protections “have been strongest.” And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties. The Court appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the Judiciary. I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf
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Jun 26, 2020 04:55
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Kalman posted:A portion of his (majority) opinion in Oil States dealt with the practices of the Reformation era English patent law and the use of Privy Council revocation as evidence that patent revocation isn’t a common law issue that must be committed to a jury. Thomas's concurrence in Thuraissigiam cites indirectly to the Magna Carta (through a 2019 "An Introduction to English Legal History") and directly to Edward Coke's 1681 "Institutes of the Laws of England", for anyone keeping score.
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Jun 26, 2020 04:57
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