Monday, December 30, 2019

Over 40 Years of Discrimination Corrected, Despite Question of Mootness

It is amazing what excuses can be used to "justify" institutionalized discrimination.  Although one often hears arguments of "it wasn't really discrimination" or "that's how society was back then- but society has since changed," using an argument of "mootness" to allow the discrimination to continue causes one to question the very nature of "justice."

However, after 42 years, this injustice was finally corrected.

This issue is one that began over 42 years ago.   Three individuals were involved in a military operation of some significance.  One individual was the pilot of a single seat craft, while the other two were pilot and co-pilot/gunner of the second craft.  The two pilots were honored; medals were conferred.  The third individual, who was in-fact a different race than the two pilots, received some honors, but no medals were awarded.

When the question of  why the copilot had not been awarded a medal first came up, the General Officers involved stated there was an old order they were following that allowed them to award medals directly and immediately, in cases where the act of heroism was obvious and there would be no doubt that the Senate Committee which would eventually review the endorsement for the medal, would approve (this was an older order that had been put in place to reduce the number of medals being awarded posthumously-sometimes these men would have to wait years for the medal to be awarded due to the time it took items to work through the Senate).  The General Officers argued that the pilots' actions were clear cut .  The General Officers then argued that although normally the endorsement of the award of the medal would be sent to the Senate Committee for their endorsement, that committee had been dissolved, and therefore there was no one to award the medal.  Therefore the award of the medal was now moot.  They argued this had nothing to do with the race differences.

Fast forward 42 years.  Both men the copilot flew with and fought with have since died in action.  Quite literally, the copilot is perhaps the only one from the original mission left.  For years he had to put up with comments that can be best worded as discriminatory because of who he is.  But just before Christmas, we found out that everything changed.

General Chewbacca was finally awarded a medal for his actions at the Battle of Yavin 4.  I had a chance to have a short interview with General Chewbacca. 

Carden: General Chewbacca, first I want to thank you for your time.   I wanted to talk to you about what some might think is a sore subject, you not being awarded a medal after the Battle of Yavin 4.  What were your thoughts at the time?

General Chewbacca:  Rarrr, Rarr, Grrr Rrarr! Wa, Rrra Grrr. Warrr Rrr. Gerrr Rrar Wrar Rurrr. 

Carden: I definitely will agree that Luke and Han deserved the medal, but many of us felt you did as well...

General Chewbacca: Arowrk Raarghh Yawrrrk Waaaaarrk Nrawwwwk Nowrrrrragh Rawrrk Vowarrrk Narowrrr Aowwww Awwrk Growwk Vaaarrk Waaark Raarghhh

Carden:  Again, you make a good point, but historically, there has been some very pointed discrimination because of your race- I mean, calling you a "big walking carpet."
General Chewbacca:  Raarghhh Waaark Growwk Varowrk Raarghh Yawrrrk Waaaaarrk Nrawwwwk Nowrrrrragh!

Carden:  Absolutely not, General, I would never say anything or imply anything about, the Princess, General Leia Solo.  So your opinion is that was "taken out of context?"

General Chewbacca:   Growwk Raarghhh Waaark Varowrk Raarghh Yawrrrk  Waaaaarrk Nrawwwwk Nowrrrrragh! Warrr Rrr. Gerrr Rrar

Carden:  Yes, General, I do like my shoulder joints in the place they are.  If I may be so bold, though perhaps the "idea" that Wookies have been known to pull arms out of sockets when they are upset, is one of the symptoms of the public views of Wookies?

General Chewbacca: Varowrk Raarghh Yawrrrk Waaaaarrk Nrawwwwk Nowrrrrragh Waaaaarrk Nrawwwwk Nowrrrrragh Rawrrk Vowarrrk Narowrrr Aowwww Awwrk Rawrrk Vowarrrk Narowrrr Aowwww Awwrk Growwk Vaaarrk Waaark Raarghhh

Carden: That is my point exactly, if we look the number of arms that Jedi removed... Take a look at General Kenobi, he cut off people's arms from Coruscant to Tatooine, but we never see you removing someones arm from their sockets.  Yet people always bring up "not upsetting a Wookie!"

General Chewbacca: Aowwww Awwrk Rawrrk Vowarrrk Narowrrr Aowwww Awwrk Growwk Vaaarrk Waaark Raarghhh Varowrk Raarghh Yawrrrk Waaaaarrk Nrawwwwk Nowrrrrragh Rawrrk Vowarrrk Narowrrr Aowwww Awwrk Waaaaarrk Nrawwwwk Nowrrrrragh Waaaaarrk Nrawwwwk Nowrrrrragh Rawrrk Vowarrrk Narowrrr 

Carden: So with that, I suppose the question is what is next for you?

General Chewbacca: Nrawwwwk Nowrrrrragh Rawrrk Vowarrrk Narowrrr Aowwww Awwrk Waaaaarrk Nrawwwwk  Aowwww Awwrk Rawrrk Vowarrrk Narowrrr Aowwww Awwrk Growwk

Carden: Of course, General, the issue of "body hair shaming" is one that you are uniquely qualified to address.  We all wish you luck with this important issues. May the force be with you.

General Chewbacca: Waaark Growwk Varowrk Raarghh

Monday, December 2, 2019

SCOTUS Case of the Term: NYSRPA v NYC

Today the Supreme Court will hear what may be "THE CASE" of this term, and perhaps the case of the decade: New York State Rifle & Pistol Association v. New York City.  The issue before the
The Right to Arm Bears
Court? What does the Second Amendment mean when it says the right to "bear arms?"  This question was not specifically addressed in District of Columbia v. Heller, 554 U.S. 570 (2008) nor in McDonald v. Chicago, 561 U.S. 742 (2010).  Without a doubt, this will be one of the "most watched" cases this year.

For those that do not have immediate recall of the exact text of the Second Amendment, the text reads,"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  The Heller case specifically dealt with the question, "Does the Second Amendment 'right to keep and bear arms' only apply to the 'militia' (or National Guard)."   In the majority opinion, Justice Scalia went through the history of the "Right to Defend One's Self."  In summary, the majority opinion of the Court stated the Second Amendment did not only apply to the militia, but rather, the "militia" as it was understood at the time, meant "all" citizens who would be called to defend the state in time of war or extreme civil unrest.  It was also explained that in essence, the clause "a well regulated militia, being necessary to the security of a free state" in modern English (as opposed to 18th century English) meant "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."   The ruling in this case however, only applied to the Federal Government, as the District of Columbia falls under Federal jurisdiction. 

In 2010, the McDonald case dealt with the question of whether the Second Amendment applied to the states.  This case specifically looked at whether the Second Amendment applied to the states through the Fourteenth Amendment.   The majority opinion, written by Justice Alito stated that indeed, the Second Amendment did apply to the states.  In both Heller and McDonald the court stated that a state may not impose a ban on firearms, but that provisions such as banning felons from possessing firearms where Constitutional.

Since the Heller and McDonald rulings, there have been no other significant Second Amendment cases heard by the Supreme Court.   Further, the Heller and McDonald opinions have left a great deal of confusion and conflict on how Second Amendment challenges should be ruled on, leaving a patchwork of conflicting rulings from the Courts of Appeal.   Additionally, one phrase, written by Justice Scalia in the Heller majority opinion has created confusion on the scope of the Second Amendment. 

In his majority opinion in Heller, Justice Scalia wrote:
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute

Unfortunately, many in the media, the public and some of the lower courts have viewed the statement that "the home, where the need for defense of self, family, and property is most acute" means that the Second Amendment only applies to the home.  However, this is not what Justice Scalia stated.  He stated that the need was "most acute" in the home.  Justice Scalia was merely pointing out that because a person spends more time in the home, than in any other place, and because the home is the place where one expects to feel most relaxed and most secure, the need to be able to defend one's self in one's home is highest.  This, however, does not mean that the need to defend one's self in public, does not exist or is not important.  The "misreading" and "misinterpretation" of the Heller and McDonald cases, as well as the Court's failure to hear any substantive Second Amendment cases since 2010, caused Justice Thomas to write a scathing dissent on the Court's decision not to hear a challenge to a gun control law in California.  Justice Scalia went so far as to call the Second Amendment a Constitutional Orphan.

This brings us to New York State Rifle & Pistol Association v. New York City  The New York State Rifle & Pistol Association has asked the Supreme Court to hear a challenge to New York City regulations that prohibit an individual, with a license to have a pistol in their home, from taking that firearm outside of the home.   The NYC regulations required that an individual with a home pistol license ONLY use one of SEVEN shooting ranges inside the limits of the City of New York.  The law further prohibited an individual from transporting a firearm licensed to a home in New York City from transporting that firearm to a second home (a vacation home on Long Island for example).  Finally the regulations even prohibited the individual from taking that firearm to a Gun Smith within the City of New York, without written permission from the Chief of Police.

On appeal to the Second Circuit Court of Appeals, the appeals court, using "intermediate scrutiny" ruled in favor of New York City, stating that the Governmental need to reduce crime and ensure public safety outweighed the individual's Second Amendment right.   There was no explanation on how a firearm that was locked in a gun case, and locked in an individual's vehicle truck away from any passengers and separated from any ammunition (requirements to transport a firearm from point A to point B by New York law) would increase crime or decrease public safety.  Further the Appeals Court stated that since the individual would be transporting the firearm outside the home, there was no "acute" need for self defense.

The NYSRPA appealed to the Supreme Court.   After the Supreme Court agreed to hear the case, and well after all written arguments were presented to the Court, New York City and the State of New York both decided that the last thing they wanted was for the Supreme Court to hear this case.   This opinion was expressed by other states with strict gun control laws.   New York and other states are all in fear that the Supreme Court will rule that the Second Amendment guarantees the right to BEAR arms as well.

In an effort to keep the Supreme Court from hearing this case, in July 2019, NYC and New York both changed regulations to allow some transport of firearms outside the city limits of NYC.   The City of New York then sent a letter to the Supreme Court asking the Court to dismiss the case as moot.  The fear of a "pro-gun" ruling by the Supreme Court is so great, that Sen. Whitehouse (D- RI) filed a brief more or less "threatening" the Court if they did not dismiss this case as moot.   The Court did reject the NYC letter asking the case be dismissed, but did order both parties to be prepared to argue why this case is not moot, when the Court hears the case this morning.

There are three possible outcomes for this case.   The first possible outcome is that the case will be found to be "moot."   It is likely that Counsel for both sides will try to convince Chief Justice Roberts in particular on the issue of mootness.   The belief on both sides of the argument is that each has four Justices in their corners so to speak (although predicting what the Court will do is dangerous).  Each side believes that Chief Justice Roberts will be the deciding vote.  The other two outcomes are the apparent ones. If the Court decides the case is not moot, then the Court will have to decide what the Constitution means by "bear arms."   This will likely end up being a 5-4 ruling, regardless of the direction the Court takes.

Currently, there are several dozen cases that have been put on hold pending the outcome of this case, and this case may end up having an impact for generations to come. 

(The transcript from the oral arguments that were held this morning will be available by close of business today, and the audio recordings of the arguments will be available at end of this week.)