U.S. Asks Supreme Court to Rehear Kennedy v. Louisiana: Last week, Louisiana asked the U.S. Supreme Court to rehear the 5-4 decision of Kennedy v. Louisiana. Today, Lyle Denniston at SCOTUSblog reports that the Justice Department has filed a motion asking the Supreme Court for leave to file an amicus brief and urging the Supreme Court to rehear Kennedy. Curiously, the Justice Department's brief makes no mention of Supreme Court Rule 37.3(a), which states: "The Clerk will not file ... a brief for an amicus curiae in support of, or in opposition to, a petition for rehearing." Normally, the Solicitor General's Office does not have to move for leave to file an amicus brief, but in this case, the Justice Department moves "pursuant to Rule 21 for leave to file this brief as amicus curiae in support of rehearing." While the Solicitor General's Office did not file a brief in Kennedy case, acting Solicitor General Gregory G. Garre argues in the motion that it should be granted leave to file because the U.S. “has a substantial interest in rehearing because the Court’s decision casts grave doubt on the validity of a recent Act of Congress and Executive Order of the President authorizing capital punishment for child rapists under the Uniform Code of Military Justice.” The motion further argues "rehearing is warranted to ensure that a material omission in the decisionmaking process has not tainted the Court’s decision on a matter of such profound institutional, moral, and practical importance."

A post-Heller Debate: Over at Cato Unbound, Robert A. Levy, Dennis Henigan, David Kopel, and Erwin Chemerinsky debate the U.S. Supreme Court's decision in District of Columbia v. Heller. The Debate began on July 14th, with Levy's essay "District of Columbia v. Heller: What's Next?", and last week Chemerinsky joined the debate with a reaction essay, "The Heller Decision: Conservative Activism and its Aftermath." In his article Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” Today, Levy responded to some of Chemerinsky's arguments, particularly the argument that Scalia's opinion ignored the militia clause of the Second Amendment. Levy comments Scalia did address the militia clause, but saw it only as explanatory. Levy writes: "In reality, the militia clause was a means to encourage ratification by the anti-federalists, who were fearful of both standing armies and an armed subset of the militia, which might have been equivalent to a standing army. By guaranteeing that all individuals, not just those in militia service, would have the right to keep and bear arms, the federalists assuaged that fear."