The New Hampshire House of Representatives is on a criminal justice roll. Last week, legislators voted to prohibit private prisons. This week, they passed a bill to repeal the ALEC-sponsored Stand Your Ground law, which authorizes the unfettered use of deadly force in self-defense. The NRA-backed laws, also known as “Kill at Will,” gained notoriety after the tragic killing of Florida teenager Trayvon Martin. Police cited Florida’s Stand Your Ground law as the reason for not initially arresting the suspect in that case. Reuters reports:

The National Rifle Association and gun rights supporters had campaigned to defeat the bill repealing the state’s “Stand Your Ground” law, arguing the change would embolden criminals and lead to greater violence against women.

The bill passed by a roll call vote of 189-184 after a heated debate. The proposed change may face tougher odds in the state Senate, which is narrowly controlled by Republicans.

If repealed, the state would return to the so-called “castle doctrine” under which there is a duty to retreat from a threatening situation unless it occurs inside a person’s home. […]

New Hampshire passed a number of laws loosening control on gun usage in 2011, when Republicans commanded large majorities in both chambers. Since regaining control of the House, Democrats have sought to push back on some of these measures.

In the wake of the Trayvon Martin tragedy, a Florida committee to reform the bill stacked with lawmakers who first proposed the law did not recommend any substantive changes, in spite of empirical research finding these laws were associated with a significant increase in homicides. Some 21 states have laws establishing that there is no duty to retreat, and at least nine include language stating that one may “stand his or her ground,” according to the National Conference of State Legislatures. The NRA has gone so far to offer insurance to cover the costs of a Stand Your Ground defense.

Featured on Armed Citizen Project's website

A Tucson, Arizona affiliate of the Armed Citizen Project will spend $12,000 on a new charitable initiative: handing out free shotguns in neighborhoods with high crime rates. According to the head of the Tucson initiative, an armed citizenry is the sensible solution to an underfunded police department facing budget cuts. The Arizona Daily Star writes:

“We need to take back our city, and it needs to come back to the citizens and not the criminals,” [Shaun] McClusky said. “Right now, the criminal element is winning.”

Over the next couple of weeks, McClusky and others will begin spreading leaflets and posting fliers in Midvale Park, Pueblo Gardens and a yet-to-be-determined midtown neighborhood to induce residents to sign up for the program.

McClusky, a failed mayoral candidate, likened gun violence to “saying spoons are responsible for making people fat,” even though armed citizens rarely stop violent crime, and their intervention can cause danger and bloodshed.

Tucson Councilman Steve Kozachik called the project “absolute lunacy.” “These people have lost their minds,” he said (sadly, they are far from the only ones).

Tucson is the site of an assassination attempt against former Rep. Gabby Giffords (D-AZ) two years ago. Thirteen people were injured and six others were killed in the shooting.

(HT: Talking Points Memo)

WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.
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During oral arguments this morning, U.S. Supreme Court Chief Justice John Roberts appeared to at least entertain the argument by House Republicans that gays and lesbians are too politically powerful for constitutional protection.

Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.

Roberts and his fellow conservatives also expressed concern over the White House’s decision not to defend the Defense of Marriage Act, with Kennedy calling it “very troubling” and Justice Antonin Scalia criticizing the Justice Department’s “new regime.”

By contrast, several of the court’s liberal justices expressed alarm over the impact of DOMA’s actual deprivation of federal marriage benefits on gays and lesbians, with Justice Ruth Bader Ginsburg calling the rights left for married couples after DOMA “skim milk” and questioning, “What kind of marriage is this?” Justice Elena Kagan, meanwhile, pointed to evidence from a House of Representatives report that lawmakers passed DOMA with improper motives. Justice Anthony Kennedy, the likely swing vote, repeatedly expressed a different concern with DOMA — that it impinged on state definitions of marriage.

Sen. John Cornyn (R-TX)

The latest conservative outrage is over a story in the Washington Examiner about how new Obamacare forms will ask citizens if they would like to register to vote:

The 61-page online Obamacare draft application for health care includes asking if the applicant wants to register to vote, raising the specter that pro-Obama groups being tapped to help Americans sign up for the program will also steer them to register with the Democratic Party.

On page 59, after numerous questions about the applicant’s identity and qualification for Obamacare, comes the question: “Would you like to register to vote?” The placement of the question could lead some to believe they have to register to vote to get health care.

The story has since been picked up by the Daily Caller, Rep. Charles Boustany (R-LA), and Sen. John Cornyn (R-TX), the number two Senate Republican, who tweeted, “How convenient! Register to vote while applying for Obamacare.”

It’s not only convenient; it’s also required by law.

The National Voter Registration Act of 1993, also known as “Motor Voter,” requires public agencies that provide public assistance to offer voter registration opportunities. Nowhere are citizens told who to vote for, which party to register for, or even that they have to register at all.

Even if it weren’t legally required, do Republicans think it’s problematic to ask people if they’re registered to vote? A “founding father” of the modern conservative movement, Paul Weyrich, who co-founded the Heritage Foundation and Moral Majority, did actually argue in 1980 that “I don’t want everybody to vote.” In fact, he reasoned, “our leverage in the election quite candidly goes up as the voting populace goes down.” Are Republicans again trying to prevent more people from being registered to vote?

Over the past two years, GOP lawmakers have indeed worked in earnest to pass new voter suppression laws around the country, making it more difficult for minorities in particular to register to vote. The fact that they would object to federal forms complying with federal law because it might result in more people registered to vote falls squarely in line with the GOP’s recent trend on voting rights.

Before beginning arguments over the constitutionality of the federal Defense of Marriage Act Wednesday morning, the U.S. Supreme Court issued an opinion unanimously siding with a prisoner who filed a handwritten appeal with the U.S. Supreme Court without a lawyer.

Inmate Kim Millbrook is known for being litigious, and has lost several of his previous cases. But his perseverence and experience with the legal system has paid off. In an opinion by Justice Clarence Thomas, the court interpreted government immunity narrowly, paving the way for many other prisoners and litigants alleging law enforcement misconduct to hold government officials accountable. It is not often that the U.S. Supreme Court takes a case filed without a lawyer. And as the New York Times’ Adam Liptak noted recently, Millbrook’s case comes on the 50th anniversary of the landmark case establishing the right to counsel, Gideon v. Wainright. Petitioner Clarence Gideon, who was also ensnared in the criminal justice system, filed a handwritten appeal on his own, and went on to set groundbreaking precedent with the help of some of the most prominent lawyers of his time.

Millbrook’s case was one of two cases the high court agreed to hear this term filed without a lawyer — a highly unusual scenario. Even more encouraging, both cases sought to challenge government attempts to insulate officials from claims of wrongdoing. In an era when justice is often viewed as synonymous with access to expensive legal representation, today’s decision is a rare win for equal access to justice (even as another U.S. Supreme Court decision decided Wednesday morning contracts access). And in a country whose prison population eclipses that of every other country in the world, it is particularly crucial that inmates are at the very least able to challenge their treatment.

Justice Pat Roggensack

With one week to go before the April 2nd election for the Wisconsin Supreme Court, Justice Pat Roggensack has raked in around half a million dollars, thanks to donations from big business and Republican groups. As thousands of Wisconsinites face foreclosure in state courts, the real estate industry is spending big to keep the 4-3 pro-corporate majority on the high court. The Wisconsin Realtors Association is spending $200,000 of its own money to support Roggensack, and campaign finance documents filed on Monday list $8,625 in contributions to Roggensack from the association’s PAC. In its endorsement of the justice, the association credited her record of ruling in favor of the real estate industry.

Executives at ABC Supply, who contributed half a million dollars to Gov. Scott Walker’s effort to fight last year’s recall campaign, gave more than $10,000 to Roggensack’s campaign. ABC Supply has been criticized for paying no state corporate taxes while raking in an estimated $5 billion in annual sales. The corporate-funded Wisconsin Club for Growth, which supports limits on legal liability for corporate defendants, has spent $300,000 on Roggensack’s behalf.

This flood of corporate money comes as the court prepares to rule on several controversial bills from the Republican-controlled Wisconsin legislature, including a Voter ID bill. The recent “open pit mining” bill is also expected to face legal challenges. The bill takes away a citizen’s right to sue mining companies for environmental damage and “allows mining corporations to dump toxic mine waste into sensitive wetlands and floodplains.”

Some of Roggensack’s individual donors are attorneys that practice before the court. The largest contribution from an individual came from attorney Michael Hupy, who recently faced reprimands in Illinois and Wisconsin for violating ethics rules. The Wisconsin Supreme Court found that Hupy mailed out thousands of brochures that falsely accused one of his competitors of unethical conduct—an action that “harmed a portion of the public that may very well have been looking for legal representation.” Roggensack wrote a two-sentence dissent, and less than two years later, Hupy gave her campaign $7,500.

Roggensack’s opponent in next week’s election, Professor Ed Fallone of Marquette Law School, has criticized the incumbent for voting in 2010 to adopt an ethics rule that allows the justices to hear cases involving campaign contributors. The rule states that campaign contributions can never be the sole basis for a justice’s recusal. Fallone argues, “That’s ‘justice for sale,’ and it’s wrong.”

The rule was literally written by two groups—Wisconsin’s Manufacturers and Commerce, the state’s chapter of the U.S. Chamber of Commerce, and the state realtors’ association—that have spent millions on ads for the pro-corporate judges on the court. Justice Ann Walsh Bradley criticized the four-justice majority for adopting “word-for-word the script of special interests that may want to sway the results of future judicial campaigns.” State Rep. Gary Hebl (D) is planning to introduce legislation to overturn the rule. One of the groups that wrote the recusal rule, the Wisconsin Realtors Association, is the same group spending $200,000 to support Roggensack.