Monday, June 28, 2010

MacDonald v. Chicago and CLS v. University of California, Hastings College of Law

MacDonald v. Chicago

Today, the Supreme Court, in a highly fractured set of long opinions (here), decided 5-4 that the Second Amendment "right to bear arms" applies directly to the states. Four members of the majority concluded that it applies to the states by incorporation under the 14th Amendment; Justice Thomas wrote separately to argue that it applies to the states (somehow) under the Privileges and Immunities Clause.

As so often in recent years, members of the Court seem to have completely forgotten their pedagogical function, in drafting a set of opinions that run to more than 200 pages, which I predict will not be read by anyone other than a few law professors who teach 2d Amendment law, plus a few lower court judges and gun-control litigants. Even those readers are likely to learn little from this case, if initial news reports are to be believed (see, e.g., here). According to those reports, the court's jumble of opinions does not even provide much guidance to the lower courts on how to determine what gun control laws, if any, are allowable. This virtually guarantees that more gun control cases will be coming before the Court in future sessions.

One final note: Today was Justice Stevens's final day as a member of the Court. He wrote a dissent in MacDonald that reaffirms a liberal approach to incorporation. Never one for sentiment, Justice Scalia wrote a separate dissent repudiating Stevens's approach in no uncertain terms.

Christian Legal Society v. Unversity of California, Hastings College of Law

In another 5-4 ruling, the Court today upheld the policy of Hastings College of Law which provides official status as "Registered Student Organization" (including use of the school logo, funding, use of facilities, etc.) to all and only those student organizations that sign the school's nondiscrimination policy, which among other things prohibits discrimination based on sexual orientation. The Christian Legal Society, which unabashedly  discriminates against gays and lesbians in its membership policy, challenged the school's requirements for RSO status, arguing that they infringe on its rights of free speech and religion. Justice Kennedy joined the four more liberal members of the Court on this occasion. The majority opinion was authored by Justice Ginsburg. The total length of opinions in this case amounts to only 85 pages, which is still far longer than any reasonable person, except those who teach First Amendment law or clerk for a lower federal court, is likely to read.

I continue to support a constitutional amendment that would limit Supreme Court majority opinions to not longer than 20 pages and concurring and dissenting opinions to not longer than 10 pages.

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