The Illuminati of the HOA legal community, Second Amendment Incorporation, and other Misc.

1.  Here are two videos with about twenty minutes of debate about whether this association should hire our law firm. My favorite part happens about three minutes, twenty seconds into the second video when someone accuse my firm of being the illumati! (or actually I think they accuse use of being members of CAI (a trade organization--Community Association Institute--which we are) and CAI is like the illuminate, so we are too, by association). It seems like their main complaint is that our firm sues homeowners. I know people don't like it when the association sues them or their neighbors, but how else are associations supposed to collect assessments or enforce their rights?
2. Lots of interesting stuff has been written about McDonald v. Chicago, because oral arguments happened this week. The case deals with whether the newly discovered/affirmed Second Amendment right to bear arms for self-defense is binding on the states. Here's my original take on the problem that incorporation poses for originalists. The short of this dilemma is: what an originalist does when almost all the other rights in the Bill of Rights have been "incorporate" against the states, but in order to incorporate the Second Amendment, you'll have to use the doctrine of substantive due process, which many originalist consider to be specious, judicially-created doctrine. I recently realized that I don't think the dilemma is going to be much of a dilemma because there is an out for Thomas. (Scalia has already accepted incorporation through "substantive due process" basically a concession to precedent, so he's just going to go with that.) Thomas will have the opportunity to use the privileges and immunities argument, overruling 140 years of case law, true, but sticking to originalism to incorporate the Second Amendment. Here's an explanation of the privileges and immunities. Here's an op-ed about privileges and immunities clause and originalism. 
3. Sorry number 2 didn't make any sense! I tried!
4. Originalism is a harsh mistress. Or is it just the constitution? It has these provisions like "privileges and immunities," "due process of law" or even "congress shall make no law . . . abridging the freedom of speech." So what do you do to flesh out these provisions? One answer is you leave it to congress to figure out the parameters of these rights. But then the constitution is a limit on congressional power. So you have to flesh out the provisions, otherwise what's the point of having a constitution if a simple majority can expand, diminish or eliminate the right? An originalist can then look to history; to the original understanding. But then historians don't agree, or there isn't much history. In those cases, you're basically just left to your best judgment in some instances it seems.
5. Take the Heller opinion, for example, which held that individuals have a right to bear arms for self-defense. The language of the amendment says, "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." That sounds like it's not an individual right, but a right of military personnel. Otherwise the "militia" language is gratuitous. Historians don't agree on the original understanding, with some saying its and individual right and others a collective right for military personnel. I don't know all the history, but the argument that works best for me is not historical: If this is a "collective right", what would be the point? It's a right of a group of people that the government controls? That's means the government can deny the right completely. And isn't the Bill of Rights supposed to contain restrictions on the government? If this was a collective right, then the government is not restricted. For this reason, I side with the Heller majority. Is that textualism, purposivism, or just a policy argument?
6. Orin Kerr argues here that you should be careful cross-examining a judge. True enough Although I have to quibble with one argument. Judge Posner and Easterbrook are too very famous conservative-leaning academic judges on the Seventh Circuit, and they voted against incorporation of the second amendment, with Judge Bauer. Then some crank threatened them, saying they should be shot, and putting their job information and pictures on the internet. Here's the defense attorney crossing them:

"Orozco[the defense attorney] asked the judge, “If it’s overturned, doesn’t that mean Hal Turner is correct?” At that point, laughter was heard through the courtroom.

Judge Easterbrook said no, for two reasons. First, the central issue — whether the Second Amendment applies to the states — is one for the Supreme Court, the judge said. Therefore, a reversal would in fact confirm that the case had been rightly decided."

This last sentence makes no sense to me. How does getting overturned confirm that the case was rightly decided? I can't see how being overturned can ever confirm that you were right. I'm guessing that, because this isn't a direct quote, the journalist just screwed up.

     7.  Who are the 5 people that most annoy you one TV (Or, just in showbiz if TV is too narrow). And not          for political reasons, because that's too easy. Here's my list.

1. Tyra Banks
2. Billy Bush
3. Andy Rooney
4. Al Roker
5. The fourth Judge on American Idol (because three is plenty)

    8. I don't like how being fat is considered morally wrong. I don't think there's anything seriously immoral about being fat. George Will wrote this about how sin of gluttony is replacing the sin of lust. I don't think that Mormonism even acknowledge the sin of gluttony. Shows like The Biggest Loser make it seem like there's nothing worse than being fat.

Second Amendment Incorporation

Does the Second Amendment restrict the powers of individual states? Initially, the restrictions on government power in the Bill of Rights only applied to the federal government. For example, the First Amendment begins "Congress shall make no law . . ." indicating that the restrictions in that amendment only apply to the "congress" of the federal government. However, since the adoption of the Fourteenth Amendment, The Supreme Court has gone right by right through the amendments in the Bill of Rights, determining whether or not the right in question should be incorporated against the states. Most of the Bill of Rights, has in fact, been incorporated.

One of the few remaining incorporation questions is whether the Second Amendment should be incorporated against the states. The recent Heller decision, holding that individuals have a right to keep and bear arms for self defense, was taken on appeal from Washington D.C. City ordinance. The Second Amendment clearly applied in that case because D.C. is not chartered by a state, but by the federal government.

If you think that for consistency's sake a court has to incorporate the rights in the Second Amendment, you'd be wrong. While the Ninth Circuit has sort of ruled that the Second Amendment is incorporated, The Second and Seventh Circuits have already rejected incorporation based largely upon precedents, like Presser and Cruikshank. Those cases, however, are not directly on point as there are three methods of incorporation, and those cases deal reject only the first two methods of incorporation. Direct incorporation is rejected because the case Duncan says none of the first eight amendments are binding on the states. Incorporation through the privileges or immunities clause was also rejected in the Slaughterhouse cases.

The last method of incorporation is through the due process clause of the Fourteenth Amendment and is the method by which most of the Bill or Right has been incorporated. This test--a shoot off of substantive due process--asks whether the right is "fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.' "Nordyke v. King, (9th Cir. 2009) (citing Duncan, 391 U.S. at 149 n.14 (emphasis added).) That's a fuzzy standard, but obviously a good argument for incorporation can be made.

How conservative and liberal justices are likely to answer the Second Amendment incorporation question is ironic. Liberals, who always seems ready to find new rights in the constitution, weren't excited about the robust Second Amendment rights created/reaffirmed in Heller. Now, those same liberals, who favor incorporation and top-down federal regulation, are the jurists most likely to vote against incorporating the Second Amendment.

Conservatives face the reverse problem: they are usually seen as supporting states rights, but will be imposing a restriction on the state. But, to be fair "conservatives" (some of whom are originalist) usually believe in following the constitution's requirements, even when it infringes upon state rights. So the question isn't so much policy, but the constitution. The liberals have this same argument, but because they've already incorporate almost every other right, they'd be acting more inconsistent to oppose this rights.

The real problem for the originalist is that he generally does not believe incorporation is constitutionally mandated. Scalia says that he does not believe the incorporation is proper under the Fourteenth Amendment. Still, he accepts incorporation because the cases were decided long ago, and the doctrine is too settled to overturn it now. Still, in order to incorporate the Second Amendment, Scalia will probably have to rely upon substantive due process, a legal doctrine he has long disparaged.

And what should an originalist who is less deferential to precedent, like Thomas, do? As Justice Scalia says, "Clarence Thomas does not believe in stare decisis, period." "Or even setting aside Thomas's views, suppose you're an originalist that does not believe the incorporation is proper but you are faced with the question of whether to incorporate the Second Amendment. Do you follow the incorporation precedents that you believe are wrong and incorporate a right against the states because it is consistent with what has been done before, and open yourself up to criticism that you are abandoning your principles of interpretation for policy reasons? Or do you not incorporate the Second Amendment and leave one of the few rights in the Bill of Rights unincorporated to be faithful to your originalist understanding of the constitution, even though that understanding will never be law?