Amici Curae: Second Amendment Sequel, Aussie Charter and Natural Law Buzzkill Edition

Second Amendment sequel
The U.S. Supreme Court added 12 cases to its docket for the upcoming term, including McDonald v. City of Chicago, which, as the National Law Journal notes, means the court will tackle a question it left unanswered last year: whether the individual right to bear arms guards against state and local gun restrictions as well as federal ones. The case is a natural sequel to last year’s D.C. v. Heller, where the court for the first time found the Second Amendment protects an individual’s right to bear arms. Though Heller’s impact was limited to the federal government, McDonald, which concerns a Chicago municipal ordinance, opens the door to the broader issue concerning states. But “the real intriguing question,” says Doug Kendall of the Constitutional Accountability Center, is not whether the court will find that the Second Amendment applies to states and municipalities, but how it justifies such application. In particular, Kendall, among others, is looking to see whether the supremes will revisit a series of 19th century cases and find that the Second Amendment applies to the states not via the Fourteenth Amendment’s due process clause, but through its privileges and immunities clause. David Kopel at The Volokh Conspiracy offers the authoritative list of background reading on the relevant issues.

Aussies debate need for own Charter
After a lengthy public consultation period, the Australian National Human Rights Consultation Committee submitted its final report to the Australian government about whether the country should adopt a national bill of rights. Over at Comparative Constitutions, Rosalind Dixon flags the development because “Australia is currently one of the only constitutional democracies without a comprehensive written rights charter — and thus an interesting test case for the hypothesis of increasing constitutional convergence.” The report is not yet public, but we’ll be watching for it.

Amartya Sen saves theory
Reviewing Amartya Sen’s The Idea of Justice, Carlin Romano writes in The Chronicle of Higher Education that Sen may be the “academic Alexander” needed to cut the “conceptual Gordian knot” of post-Rawls justice theory. In a brief survey, Romano traces the evolution of the field from Plato through to Robert Nozick and Martha Nussbaum, finally arriving at Robert C. Solomon’s damning characterization of a discipline “so specialized and so academic and so utterly unreadable that it has become just another intellectual puzzle.” Sen’s eclectic and psychologically realistic approach, says Romano, results in a work that “impeaches an entire tradition” and represents an overdue disavowal of the sort of Rawlsian utopianism that posits a just humanity from the outset. Separately, in a fascinating interview (and before an unfortunately nausea-inducing background) Sen discusses his ideas in the context, inter alia, of Indian politics and American exceptionalism.

Gay fathers test assumptions in family law
Melissa Luhatenen of the Alberta Civil Liberties Research Center, writing at ABlawg, argues that the holding in D.W.H. v. D.J.R., 2009 ABQB 438 highlights “legal gaps” in Canadian family law that warrant attention. The case involves a child custody dispute between a gay couple who have since separated, one of whose sperm was used in conceiving their baby but neither of whom can be presumed to be the child’s father. The basis for this bizarre outcome: a “lack of clarity and applicability of the [Alberta Family Law] Act to gay and lesbian parental units,” reasons Justice K.M. Eidsvik. Luhatanen calls for “a more thorough review [of the law] that takes into consideration same-sex headed families” and further education to “raise awareness of psychologists and courts to help them wade through” such cases.

John Finnis, Natural Law Buzzkill
Writing for Balkinization, Brian Tanahana takes a look at natural law theorist John Finnis’s recent paper on the the philosophy of H.L.A. Hart and finds its “dire prognosis” for Western civilization wanting. Examining Finnis’s nuanced, or grudging, support of the revocation of laws proscribing homosexual acts, Tanahana notes that Finnis “grants Hart’s argument that private homosexual conduct should not be criminalized, but … nonetheless insists that law can and should condemn homosexuality in various ways.” Finnis’s conceptual habit of distinguishing the individual homosexual or suicide from the “social practice” associated with either prompts Tanahana to wonder “about the extent to which moral arguments by philosophers amount to prejudices (or their own unexamined assumptions) dressed up in fancy attire.”

Ignoring (the RIAA) is bliss
As the charmingly quixotic RIAA is still hauling P2P file-swappers into court, over at Ars Technica Nate Anderson has a brief, anti-fatalist answer to the eternal question, “why fight City Hall?”: Don’t bother. Highlighting the legal disconnect between the recording industry and technological reality, Anderson notes the remarkable disparity between damages awards in default judgements and those in contested suits. Jammie Thomas-Rasset and Joel Tenenbaum, for example, both fought the RIAA at trial and were hit, respectively, with damages of USD 80,000 and USD 22,500 per pirated song. This week, on the other hand, Massachusetts federal district court judge Nancy Gertner in four default judgments awarded only minimum statutory damages of USD 750 per song against file-swappers who, one assumes, simply threw their statements of claim into the garbage.

Does Iran have a legal right to nuclear technology?
Julian Ku at Opinio Juris attempts to tackle the question, prompted by an op-ed in The Wall Street Journal. Matthias Küntzel, the author of that piece, takes strong exception to President Barack Obama’s proposition earlier this year that “any nation — including Iran — should have the right to access peaceful nuclear power … if it complies with its responsibilities under the Nuclear Non-Proliferation Treaty.” Küntzel notes that “[the] problem is that Iran is bound by its own constitution to violate the treaty, which is why insisting that the NPT still confers any rights on Iran is not only politically absurd but also wrong from a purely legal point of view.” He thus concludes that Iran cannot be considered a bona fide signatory to the NPT. But Ku is skeptical: “Either they are in the treaty or they are not, and if they are in, they have to comply with the treaty’s inspection provisions while at the same time getting the treaty’s benefits.”

Scalia: ‘[M]aybe we’re wasting some of our best minds’ to lawyering
You heard that right. The perennially quotable Antonin Scalia has offered yet another priceless pearl of wisdom, the WSJ Law Blog reports. In an interview with C-SPAN, the U.S. Supreme Court justice said he worries that America is squandering valuable talent by sending so many of its best minds to the bar. “I mean lawyers, after all, don’t produce anything,” he opined. “They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”

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