Focus groups are over!!!!

Looks like Nutter raised from $125,000 to $135,000.

http://www.infirmation.com/shared/lss/one-payscale.tcl?employer_id=MA0720

On DC gun control ruling:

"Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state."

WTF? So what about the 5th and 6th amendments? They pretty much get worn out in DC. Would Judge Henderson say we've had it wrong all this time and those are non-issues in the District, just like the 2nd amendment?

lat-

considering that you're hardly innocent of many of the same things that gto and rach are being attacked for (and in many cases are more guilty, considering that neither of them ran beauty contests using full names), why dont you come out more forcefully in supporting them?

Nobody else is saying it so I will:

Judge Karen LeCraft Henderson is a Judicial Goddess.

Hey 5:34,

Read the 2d, 5th, and 6th Amendments. You might notice that the 2d, unlike the 5th and 6th, says "state" not "district"

The only thing Judge Henderson is hooked on is phonics. Reading is fun.

The Second Amendment 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 amendment does not state that "the state shall not infringe the rights of the people to keep and bear arms." If it did, your point would be correct. But I thing that the second comma dramatically undermines your contention.

I'm gay.

Not with a Loyola JD you're not. We don't want you.

10:47,
HAHAHA

8:08 pm

You're the one who should learn to read. The Second Amendement protects the rights of "the people," the same "people" as the First, Fouth, Ninth, and Tenth amendments. The Bill of Rights protects individual liberties (day one of con law class). Get a clue.

8:08 Buffoon,

So the Fourteenth Amendment doesn't apply to D.C.? Wow! Because it say "No state shall deprive its citizens of equal protectino of the law," D.C. gets a pass and segregation is legal? Amazing!

Morons like you should be labotomized.

Dear 8:46 and 8:49,

I really admire you for condensing into two lines what the court needed dozens of pages for and calling everyone who disagrees a moron. Although I may not be a Law Prof, you should both read the Amendments and applicable law before ragging on 8:08.

8:49 - you probably teach at Loyola, because the answer to your first question is yes, the Fourteenth Amendment does not apply to D.C., at least if you consider Supreme Court jurisprudence to be precedential. See Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954).

Even if Judge Henderson is smoking something illegal, let's assume that her clerks can do rudimentary legal research (and that, unlike you, at least they bothered to):

Although "the Constitution is in effect . . . in the District," O’Donoghue v. United States, 289 U.S. 516, 541 (1933) , as it is in the States, "[a] citizen of the district of Columbia is not a citizen of a state within the meaning of the constitution." Hepburn, 6 U.S. at 445 (emphasis in original). Accordingly, both the Supreme Court and this court have consistently held that several constitutional provisions explicitly referring to citizens of "States" do not apply to citizens of the District. See id. at 452-53; see also Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954) (District not "State" under Fourteenth Amendment); Adams v. Clinton, 531 U.S. 941 (2000), aff’g 90 F. Supp. 2d 35 (D.D.C. 2000) (three-judge district court held that Constitution does not guarantee District citizens right to vote for members of Congress because District does not constitute "State" within Constitution’s voting clauses11); LaShawn v. Barry, 87 F.3d 1389, 1394 n.4 (D.C. Cir. 1996) ("The District of Columbia is not a state. It is the seat of our national government . . . . Thus, [the Eleventh Amendment] has no application here."); Lee v. Flintkote Co., 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979) ("[T]he District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment."). On the other hand, the Supreme Court and this court have held that the District can parallel a "State" within the meaning of some constitutional provisions. Loughran v. Loughran, 292 U.S. 216, 228 (1934) (Full Faith and Credit Clause binds "courts of the District . . . equally with courts of the states"); Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d 193, 198-99 (D.C. Cir. 1996) (while "D.C. is not a state," Commerce Clause and Twenty-first Amendment apply to District). Ultimately, "[w]hether the District of Columbia constitutes a ‘State or Territory’ within the meaning of any particular statutory or constitutional provision depends upon the character and aim of the specific provision involved." District of Columbia v. Carter, 409 U.S. 418, 419-20 (1973) (emphasis added).
[from pp. 10-11 of Henderson, J.'s dissent]

pwned!

Morons like you should be labotomized.

Posted by: Law Prof | March 10, 2007 08:49 AM

My prof. wrote that on my exam.

10:00 AM

You should go back to bed. This is SO five minutes ago. Eugene Volokh has already bitch slapped Henderson's DC-is-not-a-state argument from her dissent back to the neverland from whence it came. From www.volokh.com:

The dissent in the D.C. Circuit Second Amendment case relied chiefly on the theory that, because D.C. is not a State, the Second Amendment — which reads "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" — "does not extend to [D.C.]" She argues that the reasoning of Miller v. United States so commanded:

[Miller held]:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Id. at 178 (emphases added). Then, quoting Article I, § 8 of the Constitution [specifically, the Militia Clauses -EV], the Court succinctly — but unambiguously — set down its understanding of the Second Amendment: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee

of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. Construing its two clauses together so that, as Miller declares, the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States, I believe that, under Miller, the District is inescapably excluded from the Second Amendment because it is not a State.

The trouble with this reasoning, it seems to me, is that Miller did not hold that the continued vitality of the Militia "is required to safeguard the individual States." Miller talked about the Second Amendment's being aimed at preserving the Militia, which Miller held "comprised all males physically capable of acting in concert for the common defense" (and who, at the Framing, "were expected to appear bearing arms supplied by themselves"). It said nothing about the Militia being required to safeguard the States. And the Militia as understood by Congress (from 1803 to the present) included the citizenry of D.C. as well.

Nor does the reference of a "a free State" exclude D.C.; as the majority points out, "a free State" likely meant what Madison originally wrote, "a free country" ("State" being a common term for country as well as for an individual state). The prefatory clause thus refers to protection of a free country — and it makes sense that the operative clause speaks of the right of "the people," not of state citizens or even of the militia, because it too refers to the people living in this country, including in D.C. and in the territories (recall that the Northwest Territory was an important part of the 1791 United States).

This does leave an interesting question that neither opinion seemed to discuss: The Militia Clauses of article I, section 8 read:

Congress shall have Power ...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Does it follow that there may not constitutionally be any Officers or training for any militia in the District of Columbia and the Territories, since while Congress is free to organize, arm, and discipline the Militia everywhere, only the States may appoint officers and train the militia, and no State has jurisdiction in D.C. and the Territories? I doubt it; I would think, as did Congress in 1803, that the Militia — the armed citizenry — can exist and can be officered and trained throughout the breadth of the country. (Perhaps Congress's power to officer and train the D.C. militia comes from the Seat of Government clause and the Territory Clause, which wouldn't be limited by the "reserving to the States" proviso.) And if I'm right, then that's evidence that the citizenry has indeed long been understood as having a right to have arms even in D.C. and the Territories.

Hey 10:00 am,

Nice try. Bolling v. Sharpe holds that all the protections from the state provided in the Fourteenth Amendment also apply to the Distict of Columbia through the due process clause of the Fifth Amendment. It's called reverse incorporation, dumbass.

The court, led by newly confirmed Chief Justice Earl Warren decided unanimously in favor of the plaintiffs. In his opinion, Warren noted that while the Fourteenth Amendment, whose Equal Protection Clause was cited in Brown in order to declare segregation unconstitutional did not apply in the District of Columbia, the Fifth Amendment did apply. While the Fifth Amendment which was applicable in D.C. lacked an equal protection clause, Warren held that '. . . the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive'. While equal protection is a more explicit safeguard against discrimination, the Court recognized that '. . .discrimination may be so unjustifiable as to be violative of due process'. Referring to the technicalities raised by the case's location in the District of Columbia, the Court held that, in light of their decision in Brown that segregation in state public schools is prohibited by the constitution, it would be '. . . unthinkable that the same Constitution would impose a lesser duty on the Federal Government'.

Finally holding that '. . .racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution . . ." the Court restored both Bolling and Brown to the docket until they could reconvene to discuss how to effectively implement the decisions.

So D.C.'s argument in Sharpe that because D.C. is not a state it need not afford its citizens with equal protection was laughed out of court.

10:50 am,

Next time before you type "pwned" like a douche, you should try actually reading the purportedly silver bullet case to see if it stands for exactly the opposite proposition.

"Morons like you should be labotomized." Posted by: Law Prof | March 10, 2007 08:49 AM

A firm wrote that on one of my rejection letters.

10:00 am,

As someone has already said, nice try.

The Supreme Court has unambiguously held that the entire Constitution and Bill of Rights apply to the District. See O’Donoghue v. United States, 289 U.S. 516, 539-41(1933) (quoting Downes v. Bidwell, 182 U.S. 244, 260-61 (1901)). “The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution. . . . If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution.” Id. at 541.

Law prof, are you looking fr a resaerch assistant this summer?

Everyone is in a such a hurry to show their legal brilliance (e.g. 11:17 and 11:50), that you don't even read what it is you are responding to.

If you read my original post, you will notice I was not arguing the dissent was right, I was not even talking about the merits of the majority or dissenting opinions -- I was simply telling the esteemed 8:49 Law Prof that the 14th Amendment does not apply to DC. Not that the same rights are not guaranteed by the Fifth, but only, as I quote [myself]: "the Fourteenth Amendment does not apply to D.C."

If you read my post, you'll see that BLAH BLAH BLAH BLAH BLAH BLAH. Please don't bitch-slap me because I am wrong! Boo hoo hoo.....

I got pwned!

Volokh is a raving idiot.

IMO Volokh is obnoxious and not credible.

11:01, 11:17, et al,

8:08 here again. Thank you for agreeing with me that the 5th Amendment does indeed apply to the District, and that its due process guarantees are equivalent to the 14th's.

You're failing to grasp that the 2d Amendment applies only to the federal government (it has never been incorporated against the states), and that it applies to the federal government only insofar as the federal govenmnet regulates states and their people/militias. Otherwise, why would it use the term "state" as understood throughout the Constitution. If DC qualifies as a state, where are DC's senators and representatives as guaranteed to each state by the Constitution?

I believe in an individual rights theory of the 2d Amend, but I think my fellow conservative Judge Henderson correctly argues that it simply doesn't apply to DC. Do you not see a slippery slope here ending at giving DC full representation in Congress?

And, yes, I also think Volokh has gotten caught up in the individual rights frenzy and failed to recognize that the DC statehood issue makes a cert petition on this case unlikely to deal with the individual/collective rights issue.

First, the dissent (and the District)mistakenly reads “a free State” to mean an actual political unit of the United States, such as New York, etc., rather than a hypothetical polity. In fact, Madison’s initial proposal to the First Congress stated that a well-regulated militia was “the best security of a free country.” THE COMPLETE BILL OF RIGHTS, supra, at 169. The House committee then substituted “State” for “country” when it initially altered Madison’s proposal. We have no record of the House committee’s proceedings, but it is not credible to conclude that a profound shift was intended in the change from “country” to “State,” particularly as there was no subsequent
comment on the change.

The record of the debates in the First Congress relied upon by our dissenting colleague only further undermines the reading of “a free State” as meaning an individual state of the union. As she points out, Elbridge Gerry, an Antifederalist Representative from Massachusetts, criticized an initial formulation of the Second Amendment as follows: “A well regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one.” Dissent at 9 n.10. Gerry’s obvious fear was that a standing army would be erected as an auxiliary defense of “a free State,” and that eventually such an army would entirely displace the militia. That Gerry worried a standing army would be understood as the “secondary” security of a free state, however, indicates that he understood “a free State” to mean the new country as a whole.

After all, no one contended that a standing federal army would be used to protect individual states. It was the entire nation, including the District
of Columbia, that a standing army would be erected to defend, and thus if a standing army were to supplant the militia in securing “a free State,” the “State” in question would undoubtedly have been the United States.

The use of both the indefinite article and the modifier “free” with the word “state,” moreover, is unique to the Second Amendment. Elsewhere the Constitution refers to “the states” or “each state” when unambiguously denoting the domestic political entities such as Virginia, etc.

With “a free State,” the framers were obviously referring to republican government generally. The entire purpose of making the militia subject to the authority of the national government was that a standing army would not be necessary. The District’s militia, organized by Congress in 1803, see Act of March 3, 1803, ch.
XX, 2 Stat. 215, was no less integral to that national function than its state counterparts. That the D.C. militia is not a state militia does not make it any less necessary to the “security of a free State.”

The dissent bizarely notes a Supreme Court statement in Perpich v. Department of Defense, 496 U.S. 334 (1990), that “there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Id. at 340 (emphasis added in dissent).

However, the dissent overlooks the other concern with standing armies—that they would pose a threat to individual liberty. The language from Perpich is entirely consistent, then, with the view that the American people at large (including the residents of the District) would be equally threatened by the presence of a
standing army. And it directly contradicts the dissent’s position that the Second Amendment was concerned exclusively with the preservation of state power.

3:38,

I admit that your points are persuasive, but there are rejoinders for each. I discuss them below, but, in the spirit of comity, wanted to note that this is an issue on which reasonable minds may differ.

Firstly, that Madison's initial proposal was CHANGED to read "state" instead of "country" only bolsters the understanding that the 2d amendment was to apply only against the states. The other 116 uses of "state" throught the Bill of Rights and Consitution to mean "state" and not "country" further illustrates that the first Congress knew that it was changing the language of the amendment to a known and agreed-upon term, i.e., a "state" that makes up the Union.

Regarding Gerry's comments, it is equally reasonable that Gerry believed a standing army could be an effective security force for the each of the states and the nation as a whole, perhaps even better than militias, which were entirely state-dependent. Nothing indicates that Gerry believed a standing army to be an exclusively non-state security force. Understood this way, Gerry believed that the second amendment addressed only the security of the individual states, either through their militias or a standing army.

I agree that the use of "free state" here does make the 2d Amendment unique. But the drafters don't use "Union" or "nation" as they do in every other instance of refering to the entire nation. Expressio unus est exclusio alterius suggests that they thus weren't referring to the Union as a whole in the 2nd Amendment. Noscitur e sociis suggests they were referring to individual states due to the use of "state" to mean the individual states throughout the BoR and Const.

Perpich does not preclude that the "individual liberty" sought to be protected by the 2d Amendment was the liberty of only state citizens. At the drafting, the District was envisioned as a seat of government with few citizens of its own and several transient reisdents, whose rights were protected by their home states. Thus the 2nd Amendment sought to preserve both the rights of the states and of the citizens of those states.

Nerd alert! It's a beautiful day today and you guys sit inside arguing this dumb crap?

Can we please focus the argument on my inadequate salary!

Pepperdine 2L,

Sorry. I'm at work, and racking up my billables by arguing here is retribution for being forced to work today on a mindless appeal brief.

Pepperdine 2L, Say hi to Loyola 2L when you take your $40k job. Good jobs are reserved for "nerds."

The Second Amendment 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 amendment does not state that "the state shall not infringe the rights of the people to keep and bear arms." If it did, your point would be correct. But it doesn't and you're wrong.

The dissent—in order to give a meaning to “the people” in the Second Amendment consistent with her interpretation—analogizes to “the people” in the Tenth Amendment. Dissent at 5 n.5. Contrary to her suggestion, however, the Tenth Amendment does not limit “the people” to state citizens. Rather, the Tenth Amendment reserves powers to “the States respectively, or to the people.”

Neither the nor 8:28 AM provides any case holding that “the people,” as used in the Tenth Amendment, are distinct from “the people” referred to elsewhere in the Bill of Rights. The one case relied upon, Lee v. Flintkote, 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979), is inapposite. That case merely contrasts the District, on the one hand, with the states, on the other; the meaning of “the people” as used in the Tenth Amendment was not at issue. Indeed, Verdugo-Urquidez, 494 U.S. at 265, directly contradicts the dissent’s reading of “the people” in the Tenth Amendment, just as it contradicts the restrictive reading of “the people” in the Second.

The Second Amendment 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 amendment does not state that "the state shall not infringe the rights of the people to keep and bear arms." If it did, your point would be correct. But it doesn't and you're wrong.

The dissent—in order to give a meaning to “the people” in the Second Amendment consistent with her interpretation—analogizes to “the people” in the Tenth Amendment. Dissent at 5 n.5. Contrary to her suggestion, however, the Tenth Amendment does not limit “the people” to state citizens. Rather, the Tenth Amendment reserves powers to “the States respectively, or to the people.”

Neither the dissent nor 8:08 AM provides any case holding that “the people,” as used in the Tenth Amendment, are distinct from “the people” referred to elsewhere in the Bill of Rights. The one case relied upon, Lee v. Flintkote, 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979), is inapposite. That case merely contrasts the District, on the one hand, with the states, on the other; the meaning of “the people” as used in the Tenth Amendment was not at issue. Indeed, Verdugo-Urquidez, 494 U.S. at 265, directly contradicts the dissent’s reading of “the people” in the Tenth Amendment, just as it contradicts the restrictive reading of “the people” in the Second.

Anon, 5:03 PM: Bwwaaahhahahaha!!!!

back to salaries. wtf is up with McGuire Woods? Weak.

Lat - I DEMAND a photo and profile of this federal judicial goddess Karen LeCraft Henderson! For too long she has lain in the shadow of the eclipsing diva Janet Rodgers Brown.

Ignoring for a moment that the D.C. Circuit's decision represents precisely the variant of judicial activism that conservatives decry, there seems to be a larger, practical point that is lost in this debate concerning whether the Second Amendment confers a "collective" or "individual" right.

Whether the right is "individual" is ultimately of secondary importance to whether the right is "fundamental." While the D.C. Circuit and the Fifth Circuit in Emerson have opined that the Second Amendment confers an individual right, neither court has suggested that the right is "fundamental," such that it is worthy of incorporation against state action.

In acknowledging that numerous gun restrictions would nevertheless withstand scrutiny under the individual right view, the Fifth Circuit and the D.C. Circuit essentially concede that the right conferred by the Second Amendment can not be fundamental and thus can not be incorporated against the States. Duncan and its progeny, which establish the Court's modern incorporation doctrine, simply do not countenance the type of restrictions on other Bill of Rights provisions that the Fifth Circuit and D.C. Circuit would permit with respect to gun restrictions.

To the extent that these renegade decisions, which belie longstanding judicial precedent (sadly, Judge Silberman was forced to seek solace in state decisions recognizing the individual right due to the dearth of federal decisions) have any practical impact, it is to limit the gun control regulations that Congress (and perhaps the District) may enact.

There are still fifty states that are not governed by the Second Amendment. Perhaps that it is of little comfort to those of us who still believe in the rule of law and stare decisis, since conservative justices will likely have little compunction in abandoning states rights to ensure that many more individuals will fall victim to gun violence.

I always seem to forget that judicial activism may only be ascribed to decisions with a progressive bent.

Of course, 11:29, you've enitrely missed the impact of the Madisonian compromise. State court decisions are just as persuasive (when it comes to interpreting the federal constitution) as those of federal circuit courts. Moreover, sister circuits provide only persuasive authority. There's nothing binding about them if the D.C. Cir. and 5th Cir. think they happen to be wrong. Did you take Federal Courts?

3:04 PM:

I challenge you to find decisions resolving significant issues of federal constitutional law that primarily cite to state court decisions. They may nominally have the same persuasive value, but you won't see many serious federal judges citing state court decisions in a case adjudicating a significant federal constitutional question unless there is little or no case law to support their position.

I think that's the point that 11:29 PM was making, notwithstanding your allusion to the "Madisonian compromise," which, while making you sound bright, really doesn't have any practical import.

why do you geeks keep debating this bullshit case on a salary thread? back to the list of shame!

is it true Morgan Lewis never raised in NYC? seems hard to believe ...

Miller v. Texas? The big problem with this case and your D.C.-is-not-a-state argument is that the Supreme Court did not claim that the right in question belonged to the states; they argued that it was a limitation only the federal government:

We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts.

Is David Grinberg (quoted re: male-on-male sexual harassment) any relation to our pal Gera?

http://hotjobs.yahoo.com/jobseeker/tools/ept/careerArticlesPost.html?post=64

it sure doesn't look like ML raised - there's no mention of their nyc office on here.

I don't have any proof, but there's no way that ML didn't match NYC