I Am Not Sure The Braintrust Knows How To Read

Take a look at this from today:

Come again?: The Toledo, Ohio, Block Bugler editorializes that since the Framers could not have envisioned DNA testing, swabbing the mouth of those arrested for their DNA is not a Fourth Amendment violation. Neither could the Framers have envisioned high-speed printing presses. Does this mean The Bugler has no First Amendment right to publish? [Bolding in original.]

While I realize there's a vigorous debate surrounding Maryland v King, the braintrust does itself no favors by misrepresenting both what the Supreme Court said and then what the P-G said about it.

First, let's go back to what the braintrust said about the decision:

The Supreme Court's Monday decision affirming the right of police, without probable cause and without a warrant, to take DNA samples from those they arrest (but supposedly only for serious crimes) is chilling.[Emphasis added.]

Now let's take a look at the "Held" section of the decision:

When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. [Emphasis added.]

Notice anything?  I even bolded/italicized the important words for any braintrust visitors that may be visiting.  If there's any nuances of difference between an arrest supported by probably cause and a search done after that arrest though unrelated to it, they should have explained them.  As it is, the braintrust gets it wrong by omitting such details.

Yea, I know - what a surprise!!

The issue here, and it's pointed out in the P-G editorial, is:

There's no argument that a DNA sample taken from someone arrested by the police is a search of sorts, but the key word in the amendment is "unreasonable." On reasonableness grounds, the majority had the best of this argument. The decision to restore the conviction of a man arrested on a different charge but identified and subsequently tried as a rapist because of a DNA test was the right one.[Emphasis added.]

But let's get on to the main point here: go back and read what the braintrust's take on the P-G editorial

Now read what the P-G actually wrote:

DNA, of course, can be a window into family histories and genetic dispositions, which might be alarming if the Maryland law did not specifically limit testing to identification. Only those charged with serious crimes are tested. Fourth Amendment purists might be reassured but Justice Scalia was not, basing his analysis as always on what the tyranny-fearing Founding Fathers might have thought.

The trouble with this is that DNA testing could not be dreamed of in their day -- indeed, fingerprinting was at least a century away from being used. Besides, the purist approach sells the Founding Fathers short. They were not against scientific progress and were resolutely practical men. If they had to choose between a hypothetical threat and a reasonably applied test that beyond doubt can convict the guilty and exonerate the innocent, they might have decided as the Supreme Court did.

Seems to me, that by the braintrust's own argument they'd have to reject the use of fingerprints by police as well.  I mean, since the founders could not have envisioned fingerprinting either....

But that's a question for another day.

As Medieval As They Wanna Be

Rick Santorum was once called “one of the finest minds of the thirteenth century” in the pages of The Philadelphia Inquirer. Supreme Court Justice Antonin Scalia is somewhat less retro, preferring the 16th century (but probably having some beefs with the Renaissance):


Separated at birth?
That's the hat he wore to President Obama's second inauguration yesterday. According to WalshLaw:

The hat is a custom-made replica of the hat depicted in Holbein’s famous portrait of St. Thomas More. It was a gift from the St. Thomas More Society of Richmond, Virginia. We presented it to him in November 2010 as a memento of his participation in our 27th annual Red Mass and dinner.

I'm sure Scalia likes to see himself as a defender of the faith too (even when acting less than saintly) and, no doubt sees no conflict in that. I'm also guessing that More would have had no problem with Scalia's views on women (or little else).

Some Thoughts On Guns

Read this.  I'll tell you who wrote it later:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. [Emphases in original.]

And:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , 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.

And:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

The text above says a few things: 2nd Amendment Rights are not unlimited, you have no constitutional right, for example, to posses just any weapon for just any purpose, no constitutional right to walk into a guv'ment building armed with an M1911, and no 2nd Amendment right to carry "dangerous and unusual weapons."  And so on.  To put it another way, The Constitution allows limitations on your 2nd Amendment rights.

So who wrote this crap?  What sort of lily-livered, soft-on-crime, blame-America-First lib'rul wrote this threat to our freedom?

Supreme Court Justice Antonin Scalia, that's who - DISTRICT OF COLUMBIA v. HELLER.

What "Freedom" Means In Arizona

From The Explorer in Arizona:

Governor Jan Brewer signed House Bill 2625 into law Friday. The legislation authorizes religiously-affiliated employers to deny contraceptive services from their employees' health insurance plans.

Despite opponents saying the bill would violate a woman's right to privacy, proponents say it will apply exclusively to those entities whose religious beliefs are central to their operating principles, and for whom providing coverage for contraception could pose a moral conflict or religious objection.

You'll note that the proponents' argument doesn't actually address whether the bill violates a woman's right to privacy.  Patience, my friends.

Here's what the Governor's office itself had to say about the bill:

Governor Jan Brewer today signed into law HB 2625, legislation that authorizes religiously-affiliated employers to exempt contraceptive services from their employees’ health insurance plans. The new law will apply exclusively to those entities whose religious beliefs are central to their operating principles, and for whom providing coverage for contraception could pose a moral conflict or religious objection.

“In its final form, this bill is about nothing more than preserving the religious freedom to which we are all Constitutionally-entitled,” said Governor Brewer. “Mandating that a religious institution provide a service in direct contradiction with its faith would represent an obvious encroachment upon the 1st Amendment.”

Currently, state law allows a narrow scope of nonprofit, faith-based institutions to opt out of contraceptive coverage, provided that the institution primarily employs and serves individuals who share the religious tenets of the institution.

See? It's about freedom!  There's nothing about any "violation of privacy" in there!  It's just protecting the rights of any "religiously affiliated employer" to hold true to their beliefs!

What are these ladies complaining about?  It's so unseemly, isn't it?

Perhaps it's this part of the legislation:

Notwithstanding subsection y of this section, a religiously affiliated employer may require that the corporation provide a contract without coverage for specific items or services required under subsection Y of this section because providing or paying for coverage of the specific items or services is contrary to the religious beliefs of the religiously affiliated employer offering the plan. If a religiously affiliated employer objects to providing coverage for specific items or services required under subsection Y of this section, a written affidavit shall be filed with the corporation stating the objection. On receipt of the affidavit, the corporation shall issue to the religiously affiliated employer a contract that excludes coverage for specific items or services required under subsection Y of this section. The corporation shall retain the affidavit for the duration of the contract and any renewals of the contract. This subsection shall not exclude coverage for prescription contraceptive methods ordered by a health care provider with prescriptive authority for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes. A religiously affiliated employer offering the plan may state religious beliefs in its affidavit and may require the subscriber to first pay for the prescription and then submit a claim to the hospital service corporation, medical service corporation or hospital, medical, dental and optometric service corporation along with evidence that the prescription is not for a purpose covered by the objection. A hospital service corporation, medical service corporation or hospital, medical, dental and optometric service corporation may charge an administrative fee for handling these claims.

AA. Subsection Z of this section does not authorize a religiously affiliated employer to obtain an employee's protected health information or to violate the health insurance portability and accountability act of 1996 (P.L. 104‑191; 110 Stat. 1936) or any federal regulations adopted pursuant to that act. [emphasis added.]

So the law allows for insurers to cover contraceptives, as long as they're not used for contraceptive purposes.  And it's up to a woman who may be suffering from, say, polycystic ovary syndrome to prove that she's not a slut who's using the pill to keep from getting pregnant.  And even then, she may be charged "an administrative fee" for providing such proof.

All to insulate a religiously affiliated employer from following the law like everyone else.  As Justice Scalia wrote:

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

But I guess that all changes when it comes to controlling the vaginas.

Digging The Trib...

It seems to be a hobby of mine to research the research presented by my good friends the Scaife braintrust over at the Tribune-Review.

Most of the time after Googling the proper nouns (research sources, purported "experts") I find the conveniently omitted facts that the braintrust doesn't want you to see.  What they leave out tells you much more than what the include.

Today's a good example.  In a piece about the recent row over birth control and the Roman Catholic Church find this paragraph:

As Horace Cooper, a real constitutional law scholar, put it, "(E)ven this exemption fails to accept that the government may not force citizens to choose between their faith or obeying the law regardless of where they work or who they employ."

Horace Cooper? Who's Horace Cooper?  Google and goggle the hidden Scaife connections.

Scalia: Constitution does not prohibit discrimination against women

Via HuffPo:

In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Here's the relevant part of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This would mean that either Scalia believes that women still aren't "persons" or "citizens" or that since discrimination was allowed against women when that amendment was written they still don't have rights. You know, the same way that he believes that the 2nd Amendment only allows people the right to own muskets and cannons. Right.

Apparently Scalia said something similar back in September. Cenk Uygur of The Young Turks points out his hypocrisy when it comes to being a "strict constitutionalist" here:


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Supreme Court Fantasy League

You want geek? We got geek:

www.fantasyscotus.net

A Supreme Court fantasy league which Law.com's Legal Blog Watch called the "new gold standard in Supreme Court geekery."

This also provides me the perfect excuse to post pictures from the 2009 SCOTUS holiday party which I never got around to blogging in December (fantasy league link and photos courtesy of my sister Betty):





My sis

Obligatory Peeps SCOTUS
Sorry, pics of Scalia leading the Christmas carols are only available for viewing upon request. ;-)
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Being gay is a choice, religion is not

According to House Minority Leader John Boehner's (R-OH) spokesperson being gay is a choice while religion is not a choice.

Uh huh.

That makes about as much sense as when Justice Scalia argued that the cross did not represent Christianity but was some sort of universal symbol to honor any and all war dead.

What is it about religion that makes some people divorce reality and logic? Never mind. Forget I asked that.
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Scalia = Potty Mouth

On Monday, the Boston Herald reported that Justice Antonin Scalia "Minutes after receiving the Eucharist at a special Mass for lawyers and politicians at Cathedral of the Holy Cross" made an obscene gesture "when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs."

While the gesture was immortalized on film, the United Press International reported that Scalia told the photographer, "Don't publish that."

On Wednesday, 'Famously feisty Supreme Court Justice Antonin Scalia yesterday denied that he made an obscene gesture Sunday inside the Cathedral of the Holy Cross, accusing the Herald staff of “watching too many Sopranos episodes.” '

Later that day, AmericaBlog demanded that the photo be released.

Today, the Boston Herald released the photo:


Whether or not you believe the gesture to be obscene (meaning "fuck you") or not (meaning "I don't care") seems to depend on how many generations removed you are from Italy.

That said, the Herald also reported today that while making the gesture, Scalia had some choice words to go with it:

“The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, ‘Vaffanculo,’ ” punctuating the comment by flicking his right hand out from under his chin, Smith said.

For those who don't know, "vaffanculo" translates to:

"FUCK YOU"

UPDATE: Photographer who took the picture of Scalia has been fired by the Archdiocese of Boston’s newspaper.