Are the Supremes ready to rock'n'roll?

What a number of observers have noted about the Citizens United or Hillary the Movie case is true. The Supremes went out of their way to make it a constitutional case when they clearly had other options. They could have ruled narrowly without getting to the constitutional issue that e.g., the McCain-Feingold law didn't really cover movies distributed through On Demand. But they wanted to invalidate the law that prohibited corporations (profit and non-profit, including advocacy groups like NRA and ACLU) from saying anything that even smelled like electioneering 30 (primary) or 60 (general) days before an election. It was a healthy impulse. If the First Amendment means anything, it's protection of the freedom of political speech, no matter who says it or (considering technology) how, especially in the time around an election. McCain-Feingold is profoundly subversive of basic liberties. Theoretically elections are how we control the government, but if the government controls elections with minute rules, they (the permanent government) end up with zero accountability -- not that it has much in the best of circumstances, but as long as there's a shred of a constitution there's a ghost of a chance..

The fact that the Supremes stretched to reach this result -- generally uncharacteristic, they usually try to avoid constitutional issues unless absolutely necessary -- raises the question of whether they're moving into a more aggressive mode. As a barely conservative court with a clearly liberal administration, it's possible. As this Register editorial notes, the McDonald v. Chicago case, which tests whether the Second Amendment applies to state and local governments, will give us a pretty good hint.

Supremes and the Second Amendment

Here is the Register's editorial commenting on the oral argument Tuesday before the Supreme Court on D.C. v. Heller, regarding the District of Columbia's draconian gun law, passed in ,976, which prohibits ownership of handguns entirely, and requires that rifles and shotguns be disassembled or disabled by a trigger lock. Heller, a security guard, had applied for a permit and was denied, so he had standing to sue.

The key issue is whether the right to keep and bear arms, which according to the Second Amendment "shall not be infringed," is an individual or a collective right. Adherents of the religion of gun control have made the case that because of the introductory mililtia clause, the right accrues only to members of a state militia. Recent scholarship on various aspects of gun control and history has established the idea that it is an individual right pretty firmly, and the D.C. Circuit agreed, invalidating the law.

Five members of the Supremes seem to agree too, with Kennedy, Mr. Swing Vote, leading the questioning of DC's lawyer and even helping out the pro-rights lawyer when he got off track.

The hero here is Robert Levy, who made a bunch of money in investments, sold his firm for a pile, then got his law degree and joined Cato. He financed the entire case himself, picking the plaintiffs and hiring the lawyers (he was a co-counsel). Bob doesn't own a gun or want to, but he's a strong believer in individual rights and in the individual-right interpretation of the Second Amendment. I've talked to him on the phone many times and in person a few times, and he is truly one of the good guys.

For more than you can digest on Supreme Court activities (e.g., links to 50-plus amicus briefs on this case), the place to go is SCOTUSblog.