Heller may have determined the legal effect of the Second Amendment, but to the surprise of none, it did not end any controversy as to what that amendment should mean. To the best of my knowledge, six basic views remain:

1. GOA View: What part of “shall not be infringed” don’t you fascist pigs understand, goddammit?
2. NRA View (Standard/Heller Model): A well-regulated militia is necessary to the security of a free state. Therefore, the right of the people to keep and bear arms shall not be infringed.
3. Stevens View: Same as the Standard Model, but “the right of the people to keep and bear arms” is really, really small. But it is buried in there somewhere, honest. Look closely, it’s hiding next to Waldo.
4. Breyer View: Same as the Standard Model, but as long as there is one legal product on the market that goes “bang,” the right in question hasn’t been infringed.
5. ACLU View: It’s a collective right, dammit! And by “collective right” we mean, of course, that the only right you have as an individual is the right to live on a collective. What did you think we were, some union of Americans interested in civil liberties or something? Geez.
6. Linguist View: A well-regulated militia being unnecessary to the security of a free state, infringe away.

Any others I missed?

UPDATE: Some commenters offer alternative views which, IMO, are really just variations on the above. The Obama view, for example, has morphed from #5 (when he served on the board of the Joyce Foundation and personally completed the 1996 questionnaire he has since blamed on an aide) to either #3 or #4 (when he started claiming to have always believed that the Second Amendment guarantees an individual right, but continued to maintain that DC’s handgun ban was constitutional) to #2 (the day Heller was decided, when he claimed to have always maintained that DC’s handgun ban was unconstitutional, as was the Chicago ordinance he had actively supported while serving in the Illinois Legislature).

You’d think that after Heller, I’d be giddy about the Subprime Court. Sorry, not happening. Heller itself should have been the easiest case in the world to decide, right up there with determining that the First Amendment gives the people a right to speak freely, the Fifth guarantees a right not to have private property taken to be given away to other private parties and prohibits the states from discriminating by race, or at least as easy as deciding that the Constitution doesn’t say anything about abortion, sodomy, contraception, execution of 17 year old thrill killers who murder innocent neighbors for fun because they know they are minors, hard-core pedophiles who only ruin their victims’ lives figuratively rather than literally, or habeas rights for non-citizen terrorists. Have I missed anybody? Probably.

Four years ago countless pro-gun conservative or bloggers rooted for President Bush’s defeat, figuring that if we can’t elect a model conservative to the Oval Office, we might as well give up the reins entirely. Now, in the past week, we came one Supremer Court Justice’s vote shy of seeing the bill of Rights literally decimated. [Some argue that it was already decimated when McCain-Feingold was upheld 5-4. Perhaps so, but we also made significant headway in reversing that dreadful precedent, thanks again in no small part to Bush appointees Roberts and Alito. Now we have one candidate who promises to appoint more Robertses and Alitos, vs. a guy who voted against confirming either of them, and even joined a filibuster against one, and who promises to appoint judges with big hearts instead. Conservatives can either vote for McCain, and fear he may be lying, or they can vote for Obama and hope to God he is.

If, for some reason, you still can’t get the picture, here it is:

Well, the big day is finally here. In about 3 hours, we’ll all learn whether there’s a Second Amendment lodged in there somewhere between the First and the Third, or whether a consensus among international law should trump. I’m cautiously optimistic that a majority of Justices will rule that Dick Heller and his co-plaintiffs are “people,” handguns are “arms,” and that DC’s flat-out ban infringes their right to keep and bear them. I’m cautiously pessimistic that that’s about all we will find out. Stay tuned.

UPDATE: Affirmed 5-4. Will have more commentary after I’ve read the opinion. For now, let’s just say we dodged two .50 BMG bullets in 1987, when they borked Bork, and in ‘04, when cooler heads prevailed over the Real Conservatives who would have allowed Kerry to win in hopes of purifying the Republican Party later. [It's possible, but unlikely, that we dodged a third bullet in '05 when Bush's second appointment got "Miered" in controversy. Had that nomination gone through, the most likely outcome is that Antonin Scalia would have written exactly the same opinion he did, and gotten exactly the same number of Justices to sign on.]

UPDATE x2: No, I am not the J. Bishop cited on p. 4 of the majority opinion, alas.

UPDATE x3: Nice linguistic tidbit on the theory that “bear arms” is meant in its idiomatic sense, to wage war (p. 13):

In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose isnot even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that defintion, and we have been apprised of no source that idndicates that it carried that meaning at the time of the founding. But it is easy to see why petitionsers and the dissent are driven to the hybrid defintion. Giving “Bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war - an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the word “Arms” would have two different meanings at once: “weapons” (as the object of “keep” and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

UPDATE x4: Another gem, from p. 15-16:

JUSTICE STEVENS points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 12-13, n. 9; Linguists’ Brief 24. Of course, as we have ssaid, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “‘bear arms … for the purpose of killing game’” because those uses are “expressly qualified.” Linguists’ Brief 24. (JUSTICE STEVENS uses the same excuse for dismissing the state constituitonal provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifiying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (”for the purpose fo self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

I finally got my concealed handgun permit today, just in time for the Supreme Court to rule that I don’t need one anyway.

OK, probably not, but a boy can dream, right?

Recently the NRA challenged Philadelphia’s five illegal gun ordinances in court. The court struck down two, while dismissing challenges to the other three for lack of standing. There appear to be three schools of thought on standing:

1. Uncle view: “Standing” is legalese for “I would have gotten away with it if it weren’t for you damn meddling kids.”
2. Xrlq view: Standing is legalese for “Don’t you think we have enough friggin’ lawsuits in this country as it is?! Just imagine what screwy decisions we’d get if courts were open to people who had no stake in the issue being decided, or perhaps even hoped they’d ‘lose!’”
3. Philadelphia Metro view: Standing is legalese for “Court gives city right to enforce some gun laws.”

   H/t: David Hardy.

Proposition 22’s constitutional clone has qualified for the November ballot. Despite that, and the numerous polls indicating it will likely pass (not to mention the margin by which Proposition 22 originally did pass, nor the fact that Mark Leno lacked the guys to put his own gay marriage bills to a popular vote as the California constitution requires), gay-Juneteenth is right on schedule for June 17, two days ahead of the original one. This will afford gays in California a once in a lifetime opportunity to enjoy legal marriage for up to 140 days, rather than merely pretending to be married for a month or two like they did last time. It may also create some interesting court cases in the event of separation for briefly married, previously domestic partnered pairs. I haven’t found anything in the domestic partnership law that would necessarily preclude a couple from being simultaneously married and domestic partnered, but the possibility does seem a bit counterintuitive. To the extent that a given couple can have only one relationship or the other, would a domestic partnered couple who gets married in June, followed by a mass annulment in November, end up with no legal protection at all? I don’t know, but I do know this - if I were a gay man in California considering marriage, I’d seek competent counsel before testing the theory.
(more…)

All ballots should give voters the option of either voting for their favorite candidate or against their least-favorite. Every vote against a candidate cancels out one vote for that candidate. If no candidate garners a majority of the net positive votes, a run-off will be held among the candidates who ended up with positive vote totals.

Discuss.

I was traveling when the California Supreme Court joined its Masshole counterpart in ruling that the drafters of their respective constitutions really meant to guarantee a right to gay marriage, even if none of them knew that, so I didn’t get a chance to blog about it until yesterday, and thought it best to say less rather than more until I’d had a chance to peruse the lengthy decision. Now, I have, so here goes.

My first thought upon hearing that the decision was 4-3 (also mirroring Massachusetts’s experience) was “Oh crap, I knew that that silver lining of Janice Rogers Brown going federal had a cloud attached to it somewhere.” That thought turned out to be (mostly) wrong, as the Governator’s sole appointee, Carol Corrigan was among the dissenters. Thus, Brown confirmation or no, the decision would have 4-3, regardless. However, it would have been a more solid 4-3 split than the case we actually got, which I would argue is more of a 5-2 split on the core issue of whether gays have a “constitutional” right to marry other gays, while only 4 of the prevailing 5 agree that it has to be called marriage. In other words, today’s CA is 4-3 in Massachusetts’s camp, but 5-2 in New Jersey’s.

One aspect of the majority opinion I found amusing was the part that went into detail about how it does not establish a right to “gay marriage” as such, just a right to marriage generally, which just happens to extend to gays but not to polygamists, cousin-humpers, or anyone else who lacks the legal ability to exercise his allegedly constitutional right to “join in marriage with the person of one’s choice.” Footnote 52 insists that this decision absolutely, positively will not lead to a new right to marry one’s brother, but offers no reasons to support this conclusion beyond the usual “ick” factors the Perez court might just as easily offered up against gay marriage.

Lastly, for whatever good it does, Thursday’s decision should put to rest once and for all the uncommonly silly theory that Proposition 22 only applied to out of state marriages. On that issue the ruling was 7-0.

Time to pay up. I knew Cali had gone loopy but did not know they’d gone that loopy. Oh well, at least this time it happened in a state that allows citizens to vote on stuff. Still, the best was on how the court would rule, not what the ultimate outcome would be, so if Mythago is reading this, I owe $100 to a charity of your choice.

Next time I’ll stick to betting Uncle a beer against outcomes I favor. That way I’m guaranteed to win.

the L.A. Times has an interesting article on partial DNA searches, prompting three posts by Patterico (so far) and others by Eugene Volokh and Radley Balko. In a nutshell, John Puckett was convicted in 2004 of raping and murdering Diana Sylvester in 1972, mostly on account of a partial DNA match. Like many of the older DNA cases, it wasn’t possible to run a full DNA match, which is essentially failsafe, but just a partial one, which has roughly a 1 in 1.1 million chance of matching the wrong person.

Sounds pretty damning, doesn’t it? I mean really, if the odds of a false match are really 1.1 million to one, what are the chances they matched the wrong guy? Pretty high, actually, if you searched 1.1 million times. Buy enough lottery tickets, and you will win. In Puckett’s case, they didn’t search 1.1 million records but did search 338,000, resulting in roughly one-in-three odds that someone would get falsely matched, or about 1 in 4 that exactly one person would. The actual odds are a bit lower than that once you control for the uncertain odds that the killer was in fact in that database; presumably, if he was, he certainly would have gotten a hit, while the odds are only 1 in 3 that a second person also would have. Only one person was matched, so we can be certain that either Puckett was matched because he was the killer, or he got unlucky based on 1 in 4 odds, times whatever the odds were that the killer was not in the database. Without knowing the odds of the killer being in the database it’s tough to say how serious that error was in Puckett’s case, but easy to say exactly how serious it is in any case like Puckett’s where we don’t know for a fact that the defendant was the only match (or the only match to a person who doesn’t have a 100% airtight alibi): 1 in 3.

Some would argue that a partial DNA match that shows 1 in 1.1 million odds against a previously identified suspect, but only 1 in 3 odds against a suspect for whom the DNA semi-match was itself the basis of the suspicion, should not be admissible in court. I disagree. Anything that says you’re twice as likely to be guilty as innocent is highly probative of the charge. It is crucial, however, that such evidence be presented for what it is: enough to make you think he likely did it, but without other, unrelated corroborating evidence, not nearly enough to extinguish reasonable doubt.

I should note that the same math problem, known as the “prosecutor’s fallacy,” likely occurs every day even with full DNA matches. There, the error is equally lame in theory but harmless in practice. Without knowing exactly how long the odds have to be in order to surpass reasonable doubt, I am pretty confident that that number is somewhere north of 3 but south of 1 million. So if a prosecutor tells you that the odds of a false full match are 1 in 1 quintillion, but neglects to tell you that he found the guy by combing through a database of 1 million individuals, all that means is that the odds have fallen “all the way down” to 1 in 1 trillion. No big whoop.