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Friday Roundup

Should Scott Roeder be waterboarded?  A poster over on Balkinization poses some interesting questions, based on the premise -- a correct one, I believe -- that Scott Roeder's killing this past week of abortion doctor George Tiller was an act of terrorism.  Thus,

One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent?

Some food for thought.

Just being there.  Diversity is the hot topic in Washington, the result of President Obama's nomination of Sonia Sotomayor to the Supreme Court.  It was no secret that the primary qualification for getting onto the short list of nominees was lack of prior acquaintanceship with a urinal, and so the chattering classes have been consumed with discussion of what having a diverse voice on the Court might mean.  Turns out, at least according to this New York Times article, which relied on a 2005 study of Federal appellate rulings, that a voice isn't necessary:  sometimes just the presence can be sufficient.   The dog-bites-man result of the study was that "female judges were significantly more likely than male judges to find for plaintiffs."   But

perhaps more surprisingly, the study found, "the presence of a female judge significantly increased the probability that a male" on a three-judge panel "supported the plaintiff in the cases." Indeed, "panels with at least one female judge decided cases for the plaintiff more than twice as often as did all-male panels."

The 2nd Amendment and the 14th.  District of Columbia v. Heller, last year's big Supreme Court decision establishing that the 2nd Amendment created an individual, rather than collective, right to bear arms left unresolved the question of how, or even whether, the 2nd applied to the states; the District, of course, is under Federal jurisdiction.  That's not as easy a question as it might seem.  When the Court finally got around to viewing the 14th Amendment as a means of applying the Bill of Rights to the states, it rejected a wholesale incorporation doctrine in favor of a selective one:  a right is made applicable to the states if it is "fundamental to a concept of ordered liberty."  (Thus, for example, while a grand jury indictment and a unanimous verdict in a criminal case are required by the Bill of Rights, they're not applicable to the states through the 14th.)

That might seem as an easy question given the language in Heller, much of which recites the quotes by the Framers as to the purpose and need of a right to bear arms, and serves as the basis for the oft-repeated claim of gun rights supporters that "the Second Amendment protects the other nine."  The argument that the right is essential to liberty, though, is substantially undercut by the fact that virtually every other democracy in the world has far more severe restrictions on gun ownership and possession than we do, many of them amounting to a virtual ban. 

We may be closer to resolving this issue.  As I mentioned last week, one of the criticisms of Judge Sotomayor is that she's "anti-gun," by virtue of her joining in a per curiam ruling out of the 2nd Circuit that the 2nd Amendment does not apply to the states.  The ruling was based on the argument that the court was bound by two 19th century Supreme Court cases which held that way, and if the Supreme Court wanted to reverse that, it was up to the Supreme Court to do so.

The depiction of Sotomayor as the bête noir of gun owners took a hit this past week, as the 7th Circuit came to the same conclusion for the same reason.  The 9th Circuit had earlier ruled that the 2nd did apply to the states, and the disparity in the lower court rulings gives a justification for a grant of certiorari.  In fact, the litigants in the 2nd Circuit case had already sought one.  That would have posed a problem; assuming Sotomayor's confirmation, she would have to recuse herself if the case is heard next year.  Word is that the plaintiff in 7th Circuit are going to seek review as well, which would allow Sotomayor to hear it.

Whether this is going to make much difference is another story.  As I noted last year, predictions (some of which -- gulp -- I made) that Heller would alter criminal laws regarding gun regulations have not been borne out; there has yet to be a case striking down a law, based on Heller.  Even the 9th Circuit's decision holding that the 14th Amendment made the 2nd applicable to the states didn't do the plaintiffs any good:  the court nonetheless affirmed a California law regulating gun shows.

*  *  *  *  *  *  *  *

I'll be back next week with the usual features.  The Ohio Supreme Court's actually started churning out decisions again, as part of their Let's Help Russ Find Things to Write About Campaign.  The 8th District's back to their normal caseload, including a beat-down of your favorite blogger in a criminal case.  And I'm sure you'll want the inside dope on my trial this week, instead of the superficial coverage given of it by the national news media.  See you then.

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