Posts Tagged ‘Antonin Scalia’

Could the Supreme Court be un-packed?

February 15, 2016

The death of Justice Antonin Scalia has left the U.S. Supreme Court with an even number of justices.  If they divide four-four on any case, the decision of the lower court stands, but it does not become settled law.

 As things stand now, a divided court would not be the worst thing from the standpoint of liberals.  They mostly like existing precedents and mostly oppose have them overturned.

My friend Bill Elwell wonders what would happen if President Obama or President Hillary Clinton simply refused to nominate someone to fill a Supreme Court vacancy.

Franklin D. Roosevelt failed to pack the Supreme Court with nominees of his liking.  Bill asks: Would this be un-packing the Court?.

I don’t see how this would be any different, or any more obstructive, than Senate Majority Leader Mitch McConnell saying that Republicans will automatically reject any Obama nominee, no matter who the person is.

Article II, Section 2 of the Constitution grants the President the power to appoint Supreme Court justices, with the advice and consent of the Senate, but I find no wording requiring him to do so in a timely manner.

President Obama has already said that he intends to nominate someone to fill Scalia’s vacancy, but does he have a responsibility to nominate a second person or a third if the Senate rejects his first nominee?  Of course this is a moot question if the Republicans are going to reject any nominee.


Justice Scalia on the Second Amendment

February 1, 2013

In 2008, the U.S. Supreme Court overturned a District of Columbia ordinance forbidding the carrying of handguns without a license, and requiring that handguns be kept unloaded.   The court ruled that this violated the Second Amendment to the U.S. Constitution, and that the right to keep and bear arms is an individual right, and not limited to members of state militias.

Justice Antonin Scalia

Antonin Scalia

Here is what Justice Antonin Scalia, writing for the 5-4 majority, stated that the ruling did not say:i

Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. …

… … Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. [Precedent says] that the sorts of weapons protected were those ‘in common use at the time’ [the Second Amendment was approved]. … We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”


I’m of two minds on this issue.  I’d like to live in a less heavily-armed society, but I don’t see a way to legislate that goal that wouldn’t be at best useless or at worst the equivalent of the current war on drugs.

My expectation is that Congressional gun legislation will result in (1) more extensive FBI files on American citizens to implement background checks, (2) more stop-and-frisks and no-knock break-ins by police in search of illegal weapons and (3) more armed police and security officers in public schools because federal money is available to pay them.

Hat tip to the New New York 23rd for the Scalia quote.