Wednesday, December 05, 2007


Feelings of Trepidation

The Supreme Court held oral arguments today in Boumediene v. Bush and Orin Kerr, at the Volokh Conspiracy, listened to the arguments and questions and gave this ominous report.

What is likely to happen in the case? My guess is that the Supreme Court will reverse and remand. They'll probably say that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees, and then remand back to the D.C. Circuit to shape its proceedings in light of the constitutional requirement. Based on Kennedy's questions, I expect they'll also say that they interpret the DTA to allow a wide range of Constitutional challenges by detainees when they bring suit in the D.C. Circuit following their CSRT decisions. That's my guess, at least.

This would be madness. There is no constitutional habeas corpus right for legal combatants; there certainly is none for illegal combatants.

The Second Amendment DC case scheduled to be heard later next year, now known as District of Columbia v. Heller, is even clearer, yet I fear the Learned 9 will blow that one too.

I need to go see a comedy or something. You know, here was a time I had faith that the Supreme Court would actually do the right thing. Ah, memories


I am confident that they will do the right thing in Heller. Even the likes of Lawrance Tribe have come around on this one.
Your lips to God's ears, assuming He has ears, or that He is a He or that...nevermind.
Assuming the lower courts ruling is upheld, what impact do you think the 14th Amendment will have on individual States laws?
The 14th applied the Bill of Rights to the states (where before it was just the feds affected), so it will tie the state governments hands. Also many state constitutions have the same or similar language so it would be difficult for state supreme courts to reach a different result.
So, if I am understanding you correctly, the State in which I reside which has no State Constitutional guarantee to arms, would be beholden to federal law?
Yes, because you would have a federal constitutional right to keep and bear arms which applies to the states through the 14th.
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