During a recent trip to Times Square, I saw huge billboard with a photo of Gabby Giffords and her husband, next to a headline asking for support in stopping “gun violence.” This phrase is often used interchangeably with mass shootings. For example, consider the President’s remarks in January 2013:
And that’s why, last month, I asked Joe to lead an effort, along with members of my Cabinet, to come up with some concrete steps we can take right now to keep our children safe, to help prevent mass shootings, to reduce the broader epidemic of gun violence in this country.
Notice the pivot. The goal is not merely to prevent “mass shootings,” but to “reduce the broader epidemic of gun violence in this country.” Mass shootings are certainly a subspecies of gun violence, and the type that garner the most attention. But, as I document in The Shooting Cycle, they represent a tiny sliver of death by guns. Roughly .1% of deaths from gunfire take place during a mass shooting (defined as 4 or more deaths in a single event). The overwhelming majority, 99.9% are not during a mass shooting. This much is straightforward statistics.
A point that I didn’t address in The Shooting Cycle, but will elsewhere, is how politicians conflate the steps needed to stop mass shootings, with the steps needed to stop gun violence. In short, they are not the same discussion.
Politicians hold out proposals, such as bans on assault weapons and bans on high-capacity magazines as ways to stop “gun violence.” But really, they are holding out these measures as a ways to stop “mass shootings.” I’ll assume for the moment these steps will stop mass shootings (I am seriously doubtful here. Deranged people intent on killing two-dozen children are not likely to be deterred by background checks, and will find alternative means, such as the shooter in Araphoe who used a shotgun, the very weapon VP Joe Biden recommended we buy instead of an AR-15). But even so, this will only address a tiny, tiny percentage of deaths by guns. As Professor Winkler noted, “Even if the law could be passed, it wouldn’t have made any dent in gun violence statistics because these guns are rarely used in crime.” Everyone knows this. Even the people at Brady.
Further, I’ll assume that banning high capacity magazines makes it more difficult to inflict mass casualties (Again I am doubtful. Reloading can be done fairly quickly, and it is very easy to carry multiple weapons, as most shooters do). The overwhelming majority of gun deaths involve one, maybe two bullets being fired. That’s it. (With civilians. When police officers shoot, they fire hundreds of rounds. I suspect people would be more amenable to a debate about gun control for the police). So a ban on high capacity magazines would only have the effect of criminalizing the overwhelming majority of semiautomatic pistols, that take magazines with more than ten rounds. Of course, this is not a bug, but a feature .
In short, all of these efforts are aimed at disarming the overwhelming majority of law-abiding citizens, and doing little to stop the actual causes of gun violence. But again, the gun control advocates realize this.
The reasoning for these moves is accurately summed up in a quotation from 1996 by conservative columnist Charles Krauthammer, who conceded that the assault weapons ban would not result in a decrease in violence, but it served as an important symbolic step in desensitizing Americans towards the path of banning all guns.
“Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquility of the kind enjoyed in sister democracies like Canada and Britain. Given the frontier history and individualist ideology of the United States, however, this will not come easily. It certainly cannot be done radically. It will probably take one, maybe two generations. It might be 50 years before the United States gets to where Britain is today.
Passing a law like the assault weapons ban is a symbolic — purely symbolic — move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation. Its purpose is to spark debate, highlight the issue, make the case that the arms race between criminals and citizens is as dangerous as it is pointless.
De-escalation begins with a change in mentality. And that change in mentality starts with the symbolic yielding of certain types of weapons. The real steps, like the banning of handguns, will never occur unless this one is taken first, and even then not for decades….
Laws aimed at stopping mass shootings are not actually about stopping gun violence, directly at least. They are about desensitizing us to incremental laws, until the American culture has shifted enough that registration and confiscation are options. When members of the Brady Campaign speak about patience, and a long, drawn-out process, this is their end goal.
Nelson “Pete” Shields III, a founder of Handgun Control, Inc.—the progenitor of the Brady Center to Prevent Gun Violence—openly advocated for the elimination of all handguns: “‘We’re going to have to take this one step at a time. . . . Our ultimate goal—total control of all guns—is going to take time.’ The ‘final problem,’ he insisted, ‘is to make the possession of all handguns and all handgun ammunition’ for ordinary civilians ‘totally illegal.’” John Hechinger, a sponsor of the D.C. handgun ban and a board member of Handgun Control, Inc., put it simply: “We have to do away with the guns.”
Here’s a discussion you don’t see often in statutory interpretation cases: what is the value of captions in a statute. RBG opines in Lawson v. FMR LLC:
Second, FMR argues that the statutory headings support the exclusion of contractor employees from §1514A’s protections. Although §1514A’s own heading is broad (“Civil action to protect against retaliation in fraud cases”), subsection (a) is captioned “Whistleblower Protec- tion for Employees of Publicly Traded Companies.” Simi- larly, the relevant public law section, §806 of Sarbanes- Oxley, is captioned “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116 Stat. 802. The Court of Appeals described the latter two headings as “explicit guides” limiting protection under §1514A to employees of public companies. 670 F. 3d, at 69.
This Court has placed less weight on captions. In Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 (1947), we explained that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” Id., at 528. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employ- ees of companies that file reports with the SEC pursuant to §15(d) of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under §1514A is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regula- tions. §1514A(a)(1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U. S., at 528. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals. Id., at 529.12
In Lawson v. FMR LLC Justice Scalia concurred in the judgment of Justice Ginsburg’s majority opinion, but only concurred “in principal.” Here is how the opinion begins:
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in principal part and concurring in the judgment.
I agree with the Court’s conclusion that 18 U.S.C. §1514A protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from §1514A’s text and broader context. I therefore join the Court’s opinion in principal part.
Scalia travels over the well-trodden ground about why legislative history is not reliable.
I do not endorse, however, the Court’s occasional excursions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern- ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “in- tent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representa- tives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the Presi- dent who signed the bill.
Next Scalia credits the majority with “poetic license” for citing favorable parts of the record, but ignorable unfavorable parts.
It cites parts of the legislative record that are consistent with its holding that §1514A covers employees of private contractors and subcontrac- tors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[*] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes).
Now that the debate over Arizona’s SB 1062 bill is over, it is worthwhile to pause and think about some of the legal implications of carving out religious exemptions for generally applicable anti-discrimination law. Specifically, does the federal Religious Freedom Restoration Act (which was virtually identical to the provision proposed in Arizona) offer a defense for a private claim of discrimination.
This question may become even more salient if ENDA (Employment Non-Discrimination Act) is enacted, which would prohibit discrimination based on sexual orientation. This law, which does not seem to affect RFRA, would seem to run headlong into the question of whether a defendant could raise a RFRA defense. [Update: ENDA only applies to private employment discrimination claims, and not public accommodations, so the photographer hypo is not a good example, but the remainder of the post works--ENDA does not create a carveout for RFRA].
For example, a photographer refuses to photograph a same-sex wedding, and is sued for a violation of ENDA, could assert that the enforcement of ENDA as applied to them violates their religious liberties as protected by RFRA. These are the facts of the Elane Photography case, where the New Mexico Supreme Court held that New Mexico’s RFEA does not apply to exemption for private causes of action. This case is currently pending before the Supreme Court.
But that was New Mexico RFRA. Does the Federal RFRA apply to private causes of action? This is an open question that has generated a circuit split.
The DOJ has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties, as noted in this amicus brief by the Becket Fund in the Elane Photography case:
In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (―RFRA‖).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).
However, as this note in the Virginia Law Review explains, there is a Circuit split about whether RFRA can be raised as a defense in a private cause of action.
The circuits are split as to whether RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely.
Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense:
Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more general- ly obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.
It is noteworthy that then-Judge Sotomayor dissented on this issue for the Second Circuit in Hankins v. Lyght (2nd Cir. 2006), holding that RFRA could not be raised as a defense. Sotomayor dissented, and wrote “the statute does not apply to disputes between private parties.”
RFRA by its terms does not apply to suits between private parties.
Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against agovernment” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go forward” with any evidence. In my 115*115view, this provision strongly suggests that Congress did not intend RFRA to apply in suits between private parties.
All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack Of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.
This could prove interesting if this issue comes before the Court.
Other circuits (CA6, CA7) do not permit private defendants to raise RFRA as a defense in private suits.
Other circuits (hereinafter “nondefense circuits”) have held that the language in the judicial relief section and in the remainder of the statute suggest that RFRA meant to provide a defense only when obtaining ap- propriate relief against a government and therefore cannot apply to suits in which the government is not a party.9 A nondefense view of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government and may obtain appropriate relief.”10 By moving the “ob- tain relief” phrase to the end of the sentence, this rewriting clarifies that “government” is meant to limit the types of cases in which a “claim or defense” can be asserted. This modification limits applicability of RFRA to only those suits in which a claim or defense is raised against a gov- ernment party, thus excluding a defense in citizen suits.
And wouldn’t you know it, Judge Posner wrote the leading 7th Circuit precedent holding RFRA can’t be raised as a defense. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006).
RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).
It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions.
Though Judge Sykes did not dissent on 7th Circuit panel. And Judge Sutton did not dissent on Judge Moore’s opinion for CA6.
I should stress–and this point was totally lost in the Arizona debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.
I see Hobby Lobby, Elane Photography, and other similar cases as addressing a key question about the scope of religious liberties, and how they interact with employment discrimination laws.
Cross-Posted at Law & Liberty.
This doesn’t make sense. The Supreme Court chamber is filled with reporters. The news of this outbreak hit the wires days before the audio was released. In fact, we have the audio on YouTube. Whether or not the audio wound its way onto the Supreme Court’s website, at this point, was immaterial. The cat was out of the bag.
But you don’t have to take my word for it. I asked Kai Newkirk, the protestor himself if censoring the audio would deter him, or his colleagues, from protesting at future sessions. Unequivocally, the answer is no. In fact–and I agree with Kai here–deleting the audio reinforces the Court’s transparency problems.
The U.S. Supreme Court on Monday acknowledged that a spectator’s outburst during an oral argument Feb. 26 was “redacted” from the audio posted on the court’s web site late last week.
“The comments were not transcribed by the court reporter, who is responsible for transcribing and creating an official record of oral arguments (justices’ questions, statements, and counsels’ comments),” court public information officer Kathy Arberg said in a statement. “The audio was redacted to reflect the official proceedings.” The court reporter is an employee of Alderson Reporting Service, Arberg added.
Gee, I was expecting a “No Comment” from Kathy Arberg. This is even worse. So if the court reporter only records the justices’ questions, statements, and counsels’ comments, why are “Laughters” recorded. Those are from the crowd. The audio recordings are never redacted to eliminate the laughters. In fact, entirely scholarly studies have been done to record them. I’m not buying this rationale. Sorry.
And as Jerry Goldman notes, many other interruptions have been recorded:
The court’s handling of the audio of the protest appears to diverge from past policy. Numerous oral argument tapes found on the Oyez Project website contain spectator outbursts, according to founder Jerry Goldman.
“Nonofficial statements during arguments have definitely been recorded,” Goldman said.
Pat Ward, a consulting audio engineer who has listened to thousands of official argument audiotapes going back to 1955, agreed. “Protests in the court are readily heard” on the tapes, Ward said. “You don’t need a mike in front of it to hear it.”
Thanks to Tony for the nice shout-out to Michelle Olsen and me:
Josh Blackman and Michelle Olsen, avid bloggers and tweeters about the court, reported on the deletion of the audio in recent days, with Blackman calling the court’s action “appalling.” New York Times editorial writer Jesse Wegman called it a “hasty re-clothing of the emperor.”
Though Kathy Arberg’s answer confirms what I suspected–that the Court only views the audio as a means to record the “official” proceedings, and nothing else. In no sense does the Court feel they have any obligation to record these arguments for ourselves and our posterity. They are just doing us a favor. I couldn’t agree more.
This is what all public proceedings are subject to open meeting and record preservation laws. They exist not for the government’s benefit alone, but for our benefit.
Today the Supreme Court granted a rare hand-written in forma pauperis cert petition in Holt v. Hobbs. As we speak, every member of the Supreme Court bar is racing to pitch their services to Mr. Hobbs. Update: Race over. Doug Laycock already represents Mr. Hobbs, and filed a supplemental brief before Cert was granted..
Here is the cover page of the petition.
Today we will continue covering future interests.
This is Henry VIII, who abolished the Statute of Uses.
He is most famous for breaking England away from the Roman Catholic Church so he could obtain a divorce from his first wife, Catherine of Aragon. She did not bear him a son, and he blamed her. Now we know that the Man provides the Y-chromosome, and is responsible for determining the gender of the offspring).
Henry would go on to be married a total of 6 times, in his pursuit of a male heir. Not all of his wives faired so well
Here is the rhyme we use to remember their fates: Divorced, Beheaded, Died, Divorced, Beheaded, Survived.
This helpful graphic summarizes the fate of Henry’s wives. Henry’s most famous offspring was Elizabeth, who became Queen Elizabeth I (remember Shakespeare in Love?).
Example 1. 0 conveys Blackacre “toA for life.” 0 has a reversion in fee simple that is certain to become possessory. At A’s death, either 0 or O’s successors in interest will be entitled to possession
Example 2. 0 conveys Whiteacre “to A for life, then to B and her heirs if B survives A. O has a reversion in fee simple that is not certain to become possessory. If B dies before A, O will be entitled to possession at A’s death. On the other hand, if A dies before B, O’s reversion is divested on A’s death and will never become possessory.
O conveys Blackacre “to Hartford School Board so long as used for school purposes.”
The Reconstruction Amendments
- The Text, Structure, and History of the Reconstruction Amendments (1265-1266).
- The Thirteenth Amendment (1266-1267).
- The Fourteenth Amendment (1267-1271).
- Slaughter-House Cases (1271-1287) (Skim majority but read the dissents).
- Notes (1288-1291).
- Early Interpretation of Equal Protection (1292).
- Bradwell v. Illinois (1292-1295).
- Minor v. Happersett (1295-1301).
- Strauder v. West Virginia (1301-1306).
The Slaughter-Houses Cases
Here is a wood-cutting of the New Orleans Slaughterhouse.
Bradwell v. Illinois
This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.
Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.
The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.
The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 - It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court. Senator Matthew Carpenter made the argument for her.
Susan B. Anthony
Rochester – N.Y-
Minor v. Happersett
This is Virginia Louise Minor, who attempted to vote in an election. Her case wound its way all the way to the Supreme Court, which held in Minor v. Happersett that voting was not a privilege or immunity of citizenship.
This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:
- He has made her, if married, in the eye of the law, civilly dead.
- He has taken from her all right in property, even to the wages she earns.
- He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.
The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.
Strauder v. West Virginia
Taylor Strauder, a black man, was convicted of murder by an all-white jury. Strauder challenged his conviction because West Virginia excluded all African-Americans from the jury. The Supreme Court held that this exclusion based on race violated the Equal Protection Clause.
The Virginia Attorney General decided not to defend the state’s constitutional ban on same-sex marriage in federal court. The district court ruled in his favor. Usually, when a party prevails in the lower court, it does not appeal. But we aren’t dealing with normal litigation here.
The Virginia AG has decided to appeal a ruling he agreed with as a “procedural move,” even though he agrees with the lower court’s ruling. What is the procedural move? Unless the government appeals, and is present in the case, it would have to be dismissed for lack of standing. This is similar to California’s decision to appeal the Prop 8 Judgment, even thought it agreed with Judge Walker’s decision, and with the United States’s decision to appeal the decision in Windsor, even thought it agree with the lower court.
The practice of states appealing judgments they agree with, just to get it before a higher court, strikes me as odd. But this is the new normal in the same-sex marriage litigation.
Last weekend I presented a paper at the University of Tennessee Law Review’s Symposium on the Second Amendment, discussing the link between the 1st Amendment, 2nd Amendment, and 3D Printing. Glenn Reynolds gave the keynote address for the symposium, discussing how now, after nearly two decades, the Second Amendment is “ordinary constitutional law.” Glenn summarizes his article in USA Today:
At present, we’ve reached the point where the Second Amendment can be characterized as ordinary constitutional law. That is, it now protects a right that attaches to individuals, and that those individuals can enforce in federal court.
Of course “ordinary constitutional law” doesn’t mean that everything is settled — in fact, an area in which all the legal questions were settled once and for all would be more like extraordinary constitutional law. But it does mean that questions relating to gun ownership, gun carrying, and the like are now dealt with in the same way that federal courts deal with other questions of constitutional rights.
This is an important point. An early objection to the Second Amendment following Heller, was that it would be too hard for courts to manage and balance this dangerous right. Of course, it would be no more or less difficult to balance than some other fairly controversial rights that have had a lengthy pedigree in the U.S. Reports. Now, a few years after Heller, the courts are making their way towards figuring out the contours of the Second Amendment (though, so far, the Supreme Court has abdicated this topic since McDonald was decided). No matter how much Justice Stevens wants to resist, the Second Amendment is ordinary law constitutional law.
We have come a long, long way in 20 years. When I took constitutional law in the fall of 2007, I don’t think there was more than a paragraph in my textbook about the Second Amendment. Fortunately, as a student at George Mason, I was in ground zero for the Second Amendment. During my 1L year, Parker v. District of Columbia (what would become Heller) was decided. During the summer after my 1L year, I attended the Institute for Justice workshop, where I met Clark Neily. At the time, Clark, along with Alan Gura and Bob Levy (an alum of GMU) were responding to the District of Columbia’s cert petition. I volunteered as a research assistant for Gura, Neily, and Levy, cite-checking the final merits brief during an intensive session at the Institute for Justice’s Arlington headquarters.
During my 2L year, I was fortunate enough to take The Founders Constitution with Nelson Lund, one of the pre-eminent scholars on the Second Amendment. I don’t think there is any other class in the country that compared the prefatory and operative clauses in the Northwest Ordinance of 1787 and the Second Amendment. I served as a research assistant for Lund’s amicus brief in Heller on behalf of the Second Amendment. I think my only meaningful contribution was the addition of the word “Leviathan” (a favorite of mine) in this sentence: “Note also that–while it may not be immediately obvious to readers conditioned by experience with the modern regulatory Leviathan–the term “well regulated” need not mean heavily regulated or more regulated.”
I remember the day Heller was decided quite well. The firm where I summered sent us on a junket, err business trip, to Las Vegas and Los Angeles for a week (see my recital of the good ‘ol days here). On the final day of the Court’s term, I was up early on Pacific time, waiting for the opinion to drop. Once I saw it was affirmed, I couldn’t believe it. I read the entire opinion, cover to cover (we didn’t have much work in any event). It was a remarkable triumph of the history and scholarship began decades earlier. And, I knew minutes later, Alan had already filed suit in Chicago, in what would become McDonald v. City of Chicago.
After Heller was decided, I took a class on Common Law and American Rights with one of the foremost Second Amendment historians, Joyce Malcolm, and wrote my first substantive paper on the history used in the District of Columbia v. Heller. And, way ahead of my own time, I criticized Justice Stevens for incorrectly applying originalism, and faulting Judges Wilkinson and Posner for their positions on the Second Amendment. You can read the paper here, titled “Originalism for Dummies, Pragmatic Unoriginalism, and Passive Liberty: An Originalist Critique of the Heller Dissents and Judges Posner’s and Wilkinson’s Unoriginalist Assault on the Liberty to Keep and Bear Arms.” I’m sorry I never sent this article for publication.
In the years since Heller, and McDonald, the amount of scholarship of the Second Amendment has exploded. So much so, that I can’t even keep up with all the new scholarship and court opinions. It is now, indeed, “ordinary constitutional law.” With all the good and bad that comes with it.
Recently, Uber has been making an entree into Houston. As is always the case, the entrenched interests oppose Uber, because it would not fall within the regulatory gears of the government. In response, Uber asked Houstonians to sign a petition, which they sent to City Officials. What happened in response? Of course the Houston City Attorney sent Uber a Cease and Desist email.
From: Feldman, David M. – LGL
Sent: Wednesday, February 26, 2014 8:46 AM
To: Miller, Robert
Subject: Uber Cease and Desist
Robert – Please consider this as a formal demand that your client, Uber, cease and desist from transmitting or aiding in the transmission of form e-mails to City officials regarding the adoption of an ordinance to accommodate their enterprise. Despite my informal request to you by telephone on Monday, the excessive number of e-mails has gone unabated, to the point that it has become harassing in nature and arguably unlawful. Failure to cease and desist will be met with appropriate action by the City.
David M. Feldman
City of Houston
It isn’t clear how may emails were sent, or what it is “excessive.” It also isn’t clear how they are “harassing in nature and arguably unlawful.” If these allegations were accurate, I would imagine the City Attorney could do better than a bare-bones threatening email without any particulars. Without these details, this seems to be at best, empty threats, and at worst, unconstitutional bullying.
Everyone always forgets the part of the First Amendment that guarantees us the right to “petition the Government for a redress of grievances.” Mr. Feldman should reacquaint himself with this provision. I think libertarians and ubtertarians would agree.
On Sunday at 12:30, I will be on HoustonPBS Channel 8, “Red, White, and Blue,” talking about the Supreme Court. I will be joined by my colleague Rocky Rhodes (who I’ve learned is a descendant of George Mason!), and Professor Martin Levy from the Thurgood Marshall School of Law.
Here is a picture from the set, with the hosts, Gary Pollard, Linda Lorelle, and Davide Jones.
On the Red, white, and blue set talking about the supreme court pic.twitter.com/y5eJOjMEep
— Josh Blackman (@JoshMBlackman) February 20, 2014
In an Op-Ed last fall, I wrote how Hillary Clinton was the champion of the individual mandate during the 2008 election. Obama opposed it. After he secured the nomination, he co-opted Hillary’s policy team, and her health care reform plan. Obamacare is Hillarycare 2.0.
With the recent release from the Clinton archives, we learn that before Hillary was for the mandate, she was against the mandate, which at the time was a conservative proposal in opposition to Hillarycare.
Hillary Clinton was a vocal critic of the individual mandate during her husband’s administration, according to new documents the Clinton Presidential Library released on Friday.
“That is politically and substantively a much harder sell than the one we’ve got,” Clinton told Democratic Congressional leaders and committee chairmen in a September 1993 meeting to discuss the White House’s healthcare plan, criticizing what was then the counter-offer from centrist Republicans to her own proposals.
“Because not only will you be saying that the individual bears the full responsibility; you will be sending shock waves through the currently insured population that if there is no requirement that employers continue to insure, then they, too, may bear the individual responsibility,” Clinton continued.
Clinton’s early opposition to an individual mandate is not new information, but her now-public comments criticizing it shed new light on why she took issue with the individual mandate in 1993.
Her remarks suggest that an individual mandate would be tough to sell politically and, without an employer mandate, it could roil the healthcare system. An employer mandate is also part of ObamaCare, but the administration has delayed implementing that part of the bill.
Everyone from all sides of the spectrum has been all over this issue.
I reacted very critically when I discovered that the Supreme Court deleted audio of the protestor. Not everyone agreed? Some said the Court did the right thing. They analogized deleting the audio to TV stations turning off the camera when a streaker runs across the field. They said that allowing the protestor’s audio to remain in would encourage this type of behavior.
This is a plausible argument in the abstract, but in the context of this case I don’t find it persuasive for several reasons.
Firs, the Court hasn’t seen fit to delete audio of protests in the back. For example, during arguments in Gonzales v. Carhart, there was a protest, but that audio remained in the recording sent to the National Archives. Though, the primary difference is that when that case was argued, the audio was not released till the end of the term. By that time, the arguments were no longer a news item, and no one cared. Now, when arguments are released at the end of the week, it is still on the media’s radar.
Which leads me to my second point. Everyone knew about this protest. When it happened, countless media outlets reported on it. Art Lien had a sketch. EVERYONE knew about it. The cat was out of the bag. At this point, there was really no incentive for the Justices to redact the audio. But then the unthinkable happened. The protestor managed to smuggle a camera into the Court, and recorded it. The video leaked on Thursday. EVERYONE saw it. It was all over cable news. At this point, everyone knew that the protest happened, and had seen it. Whatever incentive to delete the audio from the recording absolutely vanished. But by Friday, the decision was made to doctor the audio.
This brings me to my third, and most important point. Everyone knew it happened. Now, everyone knew the Supreme Court edited the audio. For a Court that has, let’s say transparency problems, this looks really, really bad. At the very same moment when groups are bombarding the Court with commercials urging them to be more open, and allow cameras into the Chambers, we have tangible evidence that the Court is doctoring audio of recordings from open court, and deleting something that we all know happened, and we have video of it happening. This does not even go to the fact that the Court, as an agent of government, is censoring speech it finds objectionable. This is the same Court that arrests people for peaceably standing on its steps. The First Amendment is no matter here.
I appreciate the reasons in favor of not including the audio to discourage protestors, but this strategy will not succeed. 99Rise has announced they will record sessions again. But even worse than this, editing the audio will result in a loss of faith towards the Court itself. I’ve been shaken by this. One of the arguments the Justices raise to oppose cameras is that their deliberations are public (well that excludes the private conferences and opinion circulations). But if the Justices now censor their public proceedings, that sends the absolute wrong message. And, in the process, they actually censored what I thought was a warm comment by Justice Kennedy, urging the attorney who was about to begin to take his time. We’ve lost that moment to history. I hope that the recording submitted to the National Archives is complete. The National Archives Record Act prohibits the alteration of government records–and for good reasons. But the Supreme Court is not subject to NARA.
I would be remiss if I did not mention Nixon v. GSA. In that case, the Court held that President Nixon did not personally own the recordings made in the Oval Office, and he had to surrender them to the government. The Court found that the preservation of these materials is a compelling government interest that outweighed the President’s countervailing interest in ownership and control of the tapes. I recognize that this case is hardly on point here, as that case involved a law (that was almost certainly a bill of attainder) that required President Nixon to turn over his secret recordings. But the reasoning of the GSA Court is relevant. Recordings of public proceedings belong to the Public. (Whether a law by Congress requiring the maintenance of Supreme Court recordings would violate the Separation of Powers is a fun question).
These proceedings belong to We the People. The Court is not doing us a favor by recording them, and releasing only those sections they see fit to record. Because of their refusal to allow cameras, this is the *only* way the public can follow the proceedings.
As an aside, I would love to find out who made the decision to alter the recordings. Was it the Public Information Office? Did the Chief Justice, or the Justices decide this? This decision was likely made before the Friday conference, so I doubt the other Justices were consulted–and I suspect several of them would not concur. Remember when Justice Breyer and Ginsburg dissented from the decision to close the front door?
This happened once. It will probably happen again. This is a conversation those who watch the Court must have.
In my constitutional law class, I gave a condensed lecture on all aspects of NFIB v. Sebelius from start to finish. The video runs three hours in length, but covers everything from start to finish. (As it turns out, I led off class by playing the video of the guy who snuck the camera into court). I also may or may not have announced that I am the proud owner of my very own neck doily. If you have some time, you will enjoy this.
An article in Time Magazine explores the failed launch of HealthCare.gov, and analyzes how no one in the White House knew what was going on. The long in short of it, was that the White House thought it was above the implementation of the law (par for the course), and trusted the Centers for Medicare and Medicaid Services (CMS) to take care of all the details. Here are some of the highlights.
Here is the video of my talk at the University of Tennessee Law Review Symposium on the 2nd Amendment. I spoke about the intersection of the 1st and 2nd Amendment with 3D Printed guns. This article will be published in the Law Review later this year.