In “Advisory” DHS Admits That It Granted 2,000 Additional Three-Year Work Authorizations *AFTER* Injunction
This is unbelievable. In Texas v. United States (in which I filed a brief), the government has now admitted to the court in an “advisory” that 2,000 additional aliens were given three-year work authorization *AFTER* the court’s injunction. Recall that they have previously told the court that nothing under the November 20 memorandum had gone into effect.
Defendants file this Advisory to apprise the Court of information that came to the attention of Department of Justice counsel yesterday, May 6, 2015, concerning the Department of Homeland Security’s (“DHS”) compliance with the Court’s February 16, 2015 preliminary injunction. Specifically, and as described further below, United States Citizen and Immigration Services (“USCIS”), while preparing notifications to a small number of individuals who had erroneously been given three-year terms of work authorization after the issuance of the injunction, discovered that another group of approximately 2000 individuals had been erroneously sent three-year work authorizations after the Court had issued its injunction. The Government sincerely regrets these circumstances and is taking immediate steps to remedy these erroneous three-year terms.
Oh, and this filing came Friday night at 11:58 p.m. CT. Texas’s reply is due on Monday, May 11. The government graciously consents to granting an extension–so this case can stretch out even longer.
The Government sincerely regrets these circumstances and is taking prompt corrective steps, while gathering additional information about these issues, including how these errors occurred. The Government will supplement this Advisory with additional details as soon as they are available, and by no later than May 15, 2015.
To the extent Plaintiffs believe additional time is necessary to respond to the Court’s Order of April 7, 2015, in light of this information and the current May 11, 2015 due date for their submission, Defendants would consent to granting Plaintiffs such relief.
If Judge Hanen was on the fence about issuing sanctions, I can’t imagine this will make his decision any tougher.
This does not bode well for the competence of DHS to actually assess applications on a case-by-case basis. They are still rubber-stamping these work authorizations, even though a court order said not to. What a mess.
Here is a roundup of media coverage of Defense Distributed v. U.S. Department of State (the 3D-Printed Guns case).
- Cody Wilson, Who Posted Gun Instructions Online, Sues State Department, The New York Times (5/6/15)
- 3-D Printed Gun Lawsuit Starts the War Between Arms Control and Free Speech, Wired (5/6/15)
- Designer of 3-D-printed gun challenges feds to Constitutional duel, Fox News (5/6/15)
- First and Second Amendment challenge to government restrictions on posting plans for 3-D printed guns, The Washington Post – Volokh Conspiracy (5/6/15)
- FAN 59.1 (First Amendment News) Online Instructions on How to Make 3-D Printable Guns — Protected Speech?, Concurring Opinions (5/7/15)
- Cody Wilson & SAF file lawsuit against US State Dept over censorship of 3D printed firearms, 3D Printing News (5/7/15).
- SAF lawsuit alleges prior restraint on 3-D printing info, Examiner (5/7/15)
- Do Guns Count As Free Speech? Cody Wilson, Who Published Pistol Blueprints For 3D Printer, Thinks So,
International Business Times (5/7/15)
- Creator Of 3-D Printed Guns Sues Federal Government, Houston Public Media (5/7/15)
- Inventor of 3D-Printed Gun Refuses to Let US Government Shut Him Down—So He’s Suing Them, IJ Review (5/7/15)
- 3D-gun creator’s lawsuit a battle to protect free speech, says legal team, The UK Guardian (5/7/15)
- Pistole aus dem 3D-Drucker: Cody Wilson verklagt US-Außenministerium, Spiegel Online (5/7/15)
- New Legal Case Supports 3D-Printed Gun Blueprints Under Free Speech, Gizmodo (5/7/15)
- Cody Wilson Sues State Department Over Threats About Spreading Digital Gun-Making Files, Reason (5/7/15)
- 3D Printed Gun Lawsuit Filed: Cody Wilson Challenges The US State Department, 3DPrint.com (5/7/15)
- Cody Wilson, SAF go after feds over 3-D printed gun instructions, Guns.com (5/7/15)
- Cody Wilson’s War, BearingArms.com (5/7/15)
- 3-D gun printers sue feds over online instruction rights, Houston Chronicle (5/7/15)
- 3-D Printed Gun Designer Sues State Department Over Issue of ‘Free Speech’, HNGN (5/7/15)
- Man ordered to remove 3-D printed gun blueprint suing State Department, UPI (5/7/15)
- Should blueprints for 3-D printable guns be protected as free speech?, Minnesota Public Radio (5/7/15)
- Quoted: State Department sued over 3D-printed gun case, Silicon Beat (5/7/15)
- 3-D Printed Gun Creator Fighting for Legal Right to Distribute its Code, Techlicious (5/7/15)
- Are 3-D Gun Plans Considered Free Speech?, PJ Tatler (5/7/15)
- 3D-printed Firearms Designer Sues Federal Government, Outdoor Hub (5/7/15)
- Arms control and free speech go to court over 3D-printed guns, Engadget (5/7/15)
- Texas Man Sues State Department Over Right to 3D Print Guns, PC Magazine (5/7/15)
- 3D Printed Gun Designer Takes Aim At State Department, Forbes (5/7/15)
- The man who invented the world’s first 3D-printed gun is now suing the US government, Business Insider (5/7/15)
- 3-D GUNS & THE CONSTITUTION, Instapundit (5/7/15)
During an immigration reform roundtable, presidential hopeful Hillary Clinton offered these remarks on how she would expand executive action on immigration:
And, if Congress refuses to act, as President I will do everything possible under the law to go even further. There are more people—like many parents of DREAMers and others with deep ties and contributions to our communities—who deserve a chance to stay. I’ll fight for them too.
The law currently allows for sympathetic cases to be reviewed, but right now most of these cases have no way to get a real hearing. Therefore we should put in place a simple, straightforward, and accessible way for parents of DREAMers and others with a history of service and contribution to their communities to make their case and be eligible for the same deferred action as their children.
But that’s just the beginning. There’s much more to do to expand and enhance protections for families and communities. To reform immigration enforcement and detention practices so they’re more humane, more targeted, and more effective. And to keep building the pressure and support for comprehensive reform.
The import of her remarks are very clear. She is suggesting that deferred action be expanded to the parents of the DREAMers–even though this is something the Office of Legal Counsel specifically said could not be done.
Esther Yu-Hsi Lee at ThinkProgress read it the exact same way I did:
Clinton drew particular attention to a group of undocumented immigrants for whom she would take presidential action if Congress didn’t pass comprehensive immigration reform that includes deportation relief. She said that she would “do everything possible under the law to go even further” for “many parents of DREAMers and others with deep ties and contributions to our communities – who deserve a chance to stay. I’ll fight for them too.”
When Obama proposed expanding executive action to about five million undocumented immigrants in November 2014, he left out the parents of DREAMers because the Justice Department’s Office of Legal Counsel (OLC) believed that extending relief to these immigrants would not be legal. A senior Obama administration official told ThinkProgress at the time that the president decided not to act on behalf of the parents of DREAMers because “it was something we consulted with the Department of Justice very closely and we ultimately concluded we couldn’t do it.” Nevertheless, there are strong legal arguments supporting the view that the Obama administration as too timid, and that extending relief to the parents of DREAMers would fit within the “broad discretion” the Supreme Court says that the executive branch enjoys on matters related to immigration and deportation.
Indeed, the 100+ immigration law professors who signed a letter supporting the President’s executive action insisted that the President could grant deferred action to the parents of dreamers. This was a bridge too far even for OLC.
Offering a different take on Clinton’s remarks is Greg Sargent at the Plum Line. He writes:
That sounds like a call for expanding DAPA to cover the parents of DREAMers, but it actually isn’t quite that. The distinction turns on the meaning of “deferred action” status. That status has been around for decades, and is awarded on a case-by-case basis to some who apply for it. It includes work permits. But this status exists independently of DACA and DAPA, which are essentially something approaching categorical grants of that status to particular classes of people. (They are not quite categorical grants, but that’s too deep in the weeds for our purposes.) In other words, plenty of people who are not covered by DACA and DAPA can still apply for deferred action status, be considered for it, and receive it.
Clinton didn’t definitively say that as president she would award what amounts to a quasi-categorical grant of deferred action status to parents of DREAMers. Rather, she said she would seek to improve the process by which parents of DREAMers can apply for existing deferred action status, which (as mentioned above) they can already do.
With respect, this is an unrealistically charitable reading of Clinton’s remarks. She said the “parents of DREAMers” would be “eligible for the same deferred action as their children.” How are the children given deferred action? Well, if you ask President Obama, under DACA each alien has to “make their case” for why it should be granted. It’s not a categorical grant! Of course, this requires a massive suspension of disbelief. DACA and DAPA are broad, categorical grant of relief that do not turn on any meaningful individualized assessments.
Sargent quotes an immigration lawyer who tries to explain what Clinton really meant:
“All of us walked away from this thinking she is going to expand DACA and DAPA, but it’s not clear she would do that,” prominent immigration attorney David Leopold, who favors such an expansion, told me. “She didn’t explicitly call for expanding Obama’s current executive actions. She didn’t say, ‘I’m going to expand DAPA to the parents of DREAMers.’ What she did say is there should be a simple process in place by which people who have been here a long time can apply for deferred action. But that wouldn’t mean a categorical grant.”
I don’t know if Leopold realizes, but he basically admitted that DACA *was* a categorical grant, by explaining that deferred action for parents of DREAMers would be different, and individualized. Alas, this is unlikely. The very fact that the program is targeted at the parents means it will be categorical in the same exact sense that DACA was. What would this “simple process be”? Presumably through the exact same manner as DACA beneficiaries. If this relief was in fact being given on a case-by-case basis, why even mention the “parents” as a category? Why not say each case will be judged individually, without respect to any category.
Clinton was speaking to the huge group of parents of DREAMers who were disappointed by the limited reach of DAPA. Who knows if her legal time actually read the OLC Opinion, or was merely reacting to the disappointment ThinkProgress highlighted.
Also, the most important portion of Clinton’s remarks was not that she would expand DACA. It’s that she would take executive action “Congress refuses to act.” This would, tragically, continue President Obama’s flagrant disregard for the rule of law.
Going forward, I will be posting all filings for Defense Distributed v. U.S. Department of State on this page.
Here are the initial pleadings, and media.
District Court Filings
- Cody Wilson, Who Posted Gun Instructions Online, Sues State Department, The New York Times (5/6/15)
- 3-D Printed Gun Lawsuit Starts the War Between Arms Control and Free Speech, Wired (5/6/15)
- Designer of 3-D-printed gun challenges feds to Constitutional duel, Fox News (5/6/15)
- First and Second Amendment challenge to government restrictions on posting plans for 3-D printed guns, The Washington Post – Volokh Conspiracy (5/6/16)
Today, my colleagues and I filed a complaint in federal district court in Austin, Texas against the State Department and Secretary of State John Kerry on behalf of Defense Distributed and the Second Amendment Foundation. This case concerns the government’s censorship and prior restraint of information about 3D-printed guns. The suit alleges that the State Department’s enforcement actions have violated our clients’ First Amendment right to free speech, Second Amendment right to bear arms, and Fifth Amendment right to due process.
I will have a lot more to say about this case in the coming days. In the meantime, you can read a law review article I wrote in the Tennessee Law Review about regulations on 3D printed guns.
Here is the press release from the Second Amendment Foundation.
BELLEVUE, WA – The Second Amendment Foundation today joined Defense Distributed of Austin, Texas, in filing a federal lawsuit against Secretary of State John Kerry, the Department of State and other federal officials, seeking to stop the Government’s unconstitutional censorship of information related to the three-dimensional printing of arms.
The Government’s restraint against the publication of this critical information, under the guise of controlling arms exports, violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the Fifth Amendment right to due process, the lawsuit alleges.
SAF and Defense Distributed seek to publish 3-D printing information at no cost to the public. Constitutional attorney Alan Gura of Gura & Possessky leads the litigation team, which also includes William “Tommy” Jacks, Bill Mateja, and David Morris of Fish & Richardson; export control counsel Matthew Goldstein, and constitutional law Professor Josh Blackman.
“Americans have always been free to exchange information about firearms and manufacture their own arms,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We also have an expectation that any speech regulations be spelled out clearly, and that individuals be provided basic procedural protections if their government claims a power to silence them.”
The lawsuit asserts the defendants are unlawfully applying International Traffic in Arms Regulations (ITAR) to prevent the plaintiffs from exercising in free speech on the Internet and other forums. ITAR “requires advance government authorization to export technical data,” the complaint asserts. There are criminal and civil penalties for violations, ranging up to 20 years in prison and fines of up to $1 million per violation.
Defense Distributed generated technical information on various gun-related items, which it published on the Internet. But it removed all the files from its servers upon being warned that it “may have released ITAR-controlled technical data without the required prior authorization from the Directorate of Defense Trade Controls (DDTC), a violation of the ITAR.” In June 2013, Defense Distributed submitted various published files to DDTC for review of a machine called the “Ghost Gunner.” In April, DDTC said the machine does not fall under ITAR, but that software and files are subject to State Department jurisdiction.
“Defense Distributed appears to be caught in what seems to be a bureaucratic game of merry-go-round,” Gottlieb said. “The right to keep and bear arms includes the ability to acquire or create arms. The government is engaging in behavior that denies the company due process under the Fifth Amendment. We’re compelled to file this action because the bureaucracy is evidently playing games and it’s time for these agencies to behave.”
The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
Justice Stevens: Restrictions On Transferring Detainees From Guantanamo “More Irrational Than The Detention of Japanese American Citizens During World War II”
This past weekend I attended a conference at Yale Law School, and I was chatting with a former Justice Stevens clerk. I commented, “wow, he’s been awfully quiet of late.” She assured me that JPS is doing fine. For a lark, I checked the Court’s “speeches” page, and noticed that JPS hadn’t given a talk since March 24, 2015. I must have some sort of Stevens-spider-sense. His silence was broken on May 4 for a talk to the Lawyers for Civil Justice Membership Meeting. Among other topics, Justice Stevens criticizes Justice Kennedy’s majority decision in Iqbal, and insists that detainees from Guantanamo should be entitled to reparations like the victims of Japanese internment camps. (Steve Vladeck has more here).
JPS also decides to weigh in a controversial aspect of closing Guantanamo–the National Defense Authorization Act, which imposes restrictions on the transfer of detainees from the prison. He writes:
One of the reasons that they remain in custody is that Congress has enacted a flat ban on the transfer of any Guantanamo detainee to the United States for any reason whatsoever. Another reason is that Congress has imposed restrictions on the President’s ability to transfer detainees to foreign countries. Before such a transfer can occur, the Secretary of Defense must send congressional committees a letter thirty days beforehand explaining that the receiving country has taken or will take steps that “substantially mitigate the risk” that the individual will engage in hostilities against the United States. The Secretary must further explain why the transfer is in the national security interest of the United States. These onerous provisions have hindered the President’s ability to close Guantanamo, make no sense, and have no precedent in our history. Congress’s actions are even more irrational than the detention of Japanese American citizens during World War II.
There you have it. Congress’s imposition of a 30 day waiting period before a detainee is released is “more irrational” than President Roosevelt’s decision to exclude and round over 100,000 Japanese-Americans, and lock them in internment camps. Do I need to remind you that unlike Roosevelt’s unilateral executive action, this restriction comes from a bill that the President signed, along with (gasp) a signing statement?
In any event, it doesn’t really matter, as the President flatly ignored this law when he released the deserter Bergdahl in exchange for five, high-value detainees without providing any advance notice. Justice Stevens had no comments about that act.
Tonight, Texas filed its appellee brief in the 5th Circuit in Texas v. United States. Here is the introduction:
The Executive Branch unilaterally created a program that will grant mil- lions of unauthorized aliens lawful presence and eligibility for work permits and a host of significant benefits. The district court did not abuse its discretion by preliminarily enjoining that program, known as DAPA.
The Executive does not dispute that DAPA would be one of the largest changes in immigration policy in our Nation’s history. The President himself described DAPA as “an action to change the law.” ROA.69. At a minimum, this change required notice and comment under the Administrative Procedure Act. The preliminary injunction maintains the longstanding status quo pend- ing trial, and this preserves an effective remedy: Once this program goes into effect, it will be practically impossible to unwind all of its derivative conse- quences.
The Executive pretends that DAPA is mere inaction amounting to unre- viewable “enforcement discretion.” But DAPA does not simply abandon re- moval proceedings. It explicitly grants aliens lawful presence in this country and eligibility for work permits. “Lawful presence” is not some empty label; it is a status used throughout the United States Code. It has significant legal consequences, such as creating eligibility for numerous benefits—including Social Security, Medicare, the Earned Income Tax Credit, and unemployment benefits. In contrast, the Executive’s decision not to remove someone does not change that person’s preexisting legal status or confer eligibility for new benefits. Indeed, the district court’s injunction does not touch—and this law- suit has never challenged—the Executive’s separate memorandum establish- ing three categories for removal prioritization, or any decision by the Execu- tive to forego a removal proceeding.
Courts act within the public interest by maintaining the separation of pow- ers. DAPA’s sweeping change in immigration policy must come from Con- gress—or at the very least, only after notice and comment. The preliminary injunction thus preserves the Judiciary’s ability to protect the separation of powers and the rule of law.
Colorado understands the Plaintiff States’ frustration that national marijuana policy now hinges on a series of executive memoranda articulating a policy of “prosecutorial discretion.” See, e.g., Cole Memo at 3. But, again, although the Plaintiff States are willing to challenge the Administration’s non- enforcement of federal law, see Texas v. United States, 2015 U.S. Dist. LEXIS 18551, they have not done so here.
This demonstrates the need for the federal government’s involvement in this case. The Complaint and Brief in Support raise questions of federal enforcement policy that are “distinctively federal interests, best presented by the United States itself.”
As I noted, the true party in interest in this case is the United States, for its failure to enforce the controlled substance laws. In today’s orders, the Court has called for the views of the United States.
Now, finally, we will get the Obama Administration on record explaining its failures to faithfully execute the laws. And yes, that will be cited in the inevitable Texas v. United States merit briefing.
Thursday evening I (finally) got to see The Originalist. This post will have spoilers, so stop reading if you still wish to see it. The show begins with Justice Scalia giving a talk at a law school. Edward Gero, the actor playing Scalia, got his mannerisms down to a tee. The voice was slightly off–not quite grumpy enough–but the facial expressions and smirks were perfect. Scalia is talking about why the Constitution does not allow affirmative action. Out of nowhere, an audience member sitting in the front row stands up and calls out to Scalia. After a moment, we realize that she is part of the play. She challenges Scalia that under the original Constitution, slavery was allowed. Scalia indulges her, and wishes her good luck with her legal career. She replies that she has an interview with him. D’oh.
The interview scene is fascinating, but unrealistic. Scalia desired to hire a liberal clerk to help him dismantle the other side’s arguments. The clerk-to-be, Kat–who went to HLS and clerked for Judge Wood–plays that part well. She’s not afraid of sparring with Scalia, and calls him a monster. Scalia plays the role well.
After she is hired, the Justice and the clerk have a number of discussions concerning United States v. Windsor. Scalia asks her if she can write an objective opinion. She says yes. Much of the play is about her proving that she can be accomplish that goal.
Scalia also takes her shooting. They use an AR-10. In what was definitely a nod to Justice Kagan, the “flaming” liberal loves shooting. (Really, it is a blast!).
In one of the odder turns, Scalia says someone from the Federalist Society would “help” Kat with her Windsor opinion. Absurd. But anyway, he is a sycophant ass-kisser, who worships the ground Scalia works on. In one of the more tense moments, the sycophant leaks to Politico that the clerk is a lesbian. In a showing of grace, Scalia tells her that he doesn’t care what she does in her personal life, even though later in the play Scalia insists that none of his kids could ever be gay. It was very touching the way they portrayed the scene, because she was mortified of what he would say.
In another moving scene, the clerk’s father passes away. Scalia takes her to church, and they pray together.
In the closing scenes, Kat tries to persuade Scalia to add a sentence to his Windsor dissent, acknowledging that both sides have valid points. Scalia refuses to do so, and insists he is the Justice. But in the final scene, Scalia reads his Windsor dissent from the bench, and includes that sentence. I checked his announcement from the bench, and as best as I can tell, that line was ad-libbed.
The program acknowledged Joan Biskupic and Nina Totenberg, who no doubt helped to lend an air of legal accuracy to the production. I would highly recommend it!
DOJ’s redacted brief in response to Judge Hanen’s April 7 order is here. Here is the summary:
Defendants respectfully submit this filing, along with an in camera production of privileged documents and a privilege log, in response to the Court’s Order of April 7, 2015.1 Defendants and the Department of Justice (DOJ) take extremely seriously their obligation of candor to the courts in representing the interests of the United States and recognize the Court’s legitimate interest in ensuring the candor of those appearing before it. DOJ and Defendants have fulfilled that duty in this case, and they regret and apologize for the misunderstanding that inadvertently resulted from their statements about the effective dates for actions under the November 20, 2014 Deferred Action Guidance at issue in this case. But, as the broad array of privileged material being submitted pursuant to the Court’s Order helps demonstrate, neither that misunderstanding nor the timing of the Government’s notice to the Court concerning this matter was the product of a lack of candor or bad faith or calculated delay. Rather, the misunderstanding was the inadvertent result of Government counsel’s effort to be forthcoming with the Court about matters related to the preliminary injunction motion. The Government did not attempt to mislead the Court or engage in any other intentional misconduct; no basis exists for imposing sanctions; and the imposition of sanctions would, in any event, be improper in the absence of additional procedures.
DOJ also filed over 1,000 pages in camera, but urges the court not to review it, because it may interfere with the current appeal:
2. As described more fully in Part IV below, we are submitting in camera privileged lists of individuals who “knew about th[e] Advisory, or about the DHS activity discussed therein,” Order at 11, as well as 1163 pages of privileged documents, comprising the results of our search for “any and all drafts of the March 3, 2015 Advisory, including all corresponding metadata and other tangible items that indicate when each draft of the document was written and/or edited or revised.” April 7 Order at 11. However, we do not believe it necessary for the Court to review those materials, because this filing and the privilege log are sufficient to show that the Advisory was filed after counsel for Defendants realized that there had been a potential for misunderstanding. Furthermore, the underlying materials, which concern the drafting and filing of a document in ongoing litigation, reside at the core of the work product doctrine, the attorney-client privilege, and the deliberative process privilege. Exposure of such sensitive materials, even in camera, while the underlying suit remains pending on the merits before the Court could create significant difficulties, and thus should be avoided. In all events, this privileged information should not be disclosed to Plaintiffs. See, e.g., In re United States, 397 F.3d 274, 285-86 (5th Cir. 2005).
On April 13, the Stetson Law School in beautiful Gulf Port, Florida hosted me for a discussion on Obamacare, with commentary by Prof. Michael Finch.
Here is the video:
On my desk at my office, I keep a stack of pocket Constitutions, the same way people may keep a jar of candy. I always encourage whoever stops by to take one. Today a visitor told me that he didn’t need one because he read the entire Constitution in the 8th Grade. I asked him when he finished the 8th Grade. He replied, 1992. Well, I told him, you didn’t read the 27th Amendment because it was not ratified until May 7, 1992, with Michigan’s vote. So you didn’t read the *entire* Constitution. Then he asked why it was so important, and I explained that initially this was the 2nd proposed Amendment, ahead of our right to free speech! He took a Constitution and said he would read it. #ConLawNerd.
To help everyone preparing for finals, all of my lectures are available on YouTube in playlists. You can view Property I, Property II, and ConLaw lectures. One of the best parts of lecturing across the country is meeting students at different law schools who learn from my videos. It is extremely rewarding. Good luck!
Tonight at 6:00, I am attending the Supreme Court Historical Society’s Griswold Lecture on the Nixon Court. Justice Scalia, who served in the Nixon Administration, will be speaking. At 8:00 I have tickets to see “The Originalist,” starring Edward Garo as Justice Scalia.
In other words, first we have real Scalia, then we have fake Scalia.
I’ll let you know which one I prefer.
Judge Easterbrook dropped the ball in his opinion upholding the City of Highland Park’s ban on so-called “assault weapons.” He read Heller and McDonald so narrowly as to disregard them, and at the end dared the Justices to tell him that he is wrong.
Easterbrook’s main argument focuses on the “historical tradition.” The 2nd Amendment was ratified in 1791. Heller was decided in 2008. In the intervening two centuries, for all intents and purposes, there was no judicially enforced 2nd Amendment right in the federal courts. (I am putting aside how state courts interpreted state constitutional amendments). Take for example everyone’s favorite, the machine gun. Easterbrook notes that states did not regulate them until 1927, and the federal government did not tax them until 1934 with the National Firearms Act. (It was the violation of the latter statute that snared the defendant in United States v. Miller). So between 1934 and 2008, there was no meaningful limit on how the government could regulate arms. Consider a counterfactual. If Miller came out the other way, and the National Firearms Act was invalidated, machine guns very well would be in “common use.” (As a practical matter, machine guns are not very practical so this is unlikely).
But Easterbrook takes this in a different direction.
How weapons are sorted between private and military uses has changed over time. From the perspective of 2008, when Heller was decided, laws dating to the 1920s may seem to belong to a “historical tradition” of regulation. But they were enacted more than 130 years after the states ratified the Second Amendment. Why should regulations enacted 130 years after the Second Amendment’s adoption (and nearly 60 years after the Fourteenth’s) have more validity than those enacted another 90 years later?
What is the correct lineage for the history? The century between the ratification of the 2nd Amendment, or the century preceding Heller? Easterbrook asks why a law enacted in the 1930s should be any stronger than a law enacted in 2013 in terms of tradition. Easterbrook suggests that time does not create an “easement” across the Second Amendment.
Nothing in Heller suggests that a constitutional challenge to bans on private possession of machine guns brought during the 1930s, soon after their enactment, should have succeeded—that the passage of time creates an easement across the Second Amendment. See United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). If Highland Park’s ordinance stays on the books for a few years, that shouldn’t make it either more or less open to chal‐ lenge under the Second Amendment.
Easterbrook rejects the argument that you should look to how common a weapon is at the time of the litigation.
And relying on how common a weapon is at the time of litigation would be circular to boot. Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi‐automatic weapons with large‐capacity magazines are owned more commonly because, until recent‐ ly (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.
And what makes a weapon in “common” use?
Yet High‐ land Park concedes uncertainty whether the banned weap‐ ons are commonly owned; if they are (or were before it en‐ acted the ordinance), then they are not unusual. The record shows that perhaps 9% of the nation’s firearms owners have assault weapons, but what line separates “common” from “uncommon” ownership is something the Court did not say.
And what makes a weapon “dangerous”? Not how often it is used for murder, but how dangerous it is to other kinds of weapons.
The large fraction of murders committed by handguns may reflect the fact that they are much more numerous than assault weapons. What should matter to the “danger” question is how deadly a single weapon of one kind is compared with a single weapon of a different kind.
As he did in Skoien, Easterbrook seeks to read Heller as narrowly as possible.
The problems that would be created by treating such empirical issues as for the judiciary rather than the legisla‐ ture—and the possibility that different judges might reach dramatically different conclusions about relative risks and their constitutional significance—illustrate why courts should not read Heller like a statute rather than an explana‐ tion of the Court’s disposition. The language from Heller that we have quoted is precautionary: it warns against readings that go beyond the scope of Heller’s holding that “the Second Amendment creates individual rights, one of which is keep‐ ing operable handguns at home for self‐defense.” Skoien, 614 F.3d at 640.
Since Heller, as Easterbrook notes, the Court has been silent on the scope of the right. In the meantime, the lower courts have continued to read it as narrowly as possible.
Heller does not purport to define the full scope of the Second Amendment. The Court has not told us what other entitlements the Second Amendment creates or what kinds of gun regulations legislatures may enact. Instead the Court has alerted other judges, in Heller and again in McDonald, that the Second Amendment “does not imperil every law regulating firearms.” McDonald, 561 U.S. at 786 (plurality opinion); Heller, 554 U.S. at 626–27 & n.26. Cautionary lan‐ guage about what has been left open should not be read as if it were part of the Constitution or answered all possible questions. It is enough to say, as we did in Skoien, 614 F.3d at 641, that at least some categorical limits on the kinds of weapons that can be possessed are proper, and that they need not mirror restrictions that were on the books in 1791.
What about the standard of review? Here too the Court has been silent:
So far, however, the Jus‐ tices have declined to specify how much substantive review the Second Amendment requires. Two courts of appeals have applied a version of “intermediate scrutiny” and sus‐ tained limits on assault weapons and large‐capacity maga‐ zines. See Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (a law materially identical to Highland Park’s is valid); Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (a ban on magazines holding more than ten rounds is valid).
Rather than scrutiny, Easterbrook would simply look to weapons that were in common use at the time of the ratification (hello muskets) or weapons useful to the militia (Miller).
But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law‐abiding citizens retain adequate means of self‐defense.
This is not the holding of Heller. A handgun and an AR-15 would be of equal use for self defense, or for that matter in the militia. But as framed, Easterbrook can effectively limit Heller to its holding about handguns, and nothing else.
Remarkably, Easterbrook ties the “militia” prong not only to what weapons are usable in the militia, but limits it to what the state determines should be allowed.
Some of the weapons prohibited by the ordinance are commonly used for military and police functions; they there‐ fore bear a relation to the preservation and effectiveness of state militias. But states, which are in charge of militias, should be allowed to decide when civilians can possess mili‐ tary‐grade firearms, so as to have them available when the militia is called to duty. (Recall that this is how Heller under‐ stood Miller.)
This circularity makes no sense. Isn’t the question whether the state can regulate the weapon? How could it possibly be that the regulation is justified because the state can regulate it?
What about self defense? As he must, Easterbrook concedes that an AR-15 is “beneficial” for self defense.
True enough, assault weapons can be beneficial for self‐ defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers. Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.
Easterbrook counters, with no evidence that “Assault weapons” are the weapons of choice for “Mass Shootings!!!!!”
But assault weapons with large‐capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate. Why else are they the weapons of choice in mass shootings? A ban on assault weapons and large‐capacity magazines might not prevent shootings in Highland Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs.
This is false. This report compiled by the Connecticut government finds that the overwhelming majority of mass shootings involved handguns, not assualt weapons. (H/T Will Scharf)
In any event, this flips the question. Weren’t we just talking about self defense. Why are now talking about how these guns could be used in mass shootings?
Easterbrook reduces the scrutiny to borderline rational basis–even if the ban doesn’t eliminate a problem, it may make those problems less dangerous, or even may make people feel safer!
A ban on assault weapons won’t eliminate gun violence in Highland Park, but it may reduce the overall dangerousness of crime that does occur. … If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety. Mass shootings are rare, but they are highly salient, and people tend to overestimate the likelihood of salient events. See George F. Loewenstein, Christopher K. Hsee, Elke U. Weber & Ned Welch, Risk as Feelings, 127 Psychological Bulletin 267, 275–76 (2001); Eric J. Johnson, John Hershey, Jacqueline Meszaros & Howard Kunreuther, Framing, Probability Distortions, and Insurance Decisions, 7 J. Risk & Uncertainty 35 (1993). If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.
Over-reaction to mass shootings? If only someone wrote an article about that…
After offering a heap of evidence to support the state, Easterbrook says what pervades his entire opinion–let the democratic process define the counters of this enumerated right.
Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self‐defense is through the political process and scholarly debate, not by parsing ambigu‐ ous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Con‐ stitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legisla‐ tive process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).
Easterbrook repeats a canard advanced in McDonald v. Chicago–that constitutional rights should mean different things in different places. Let federalism serve as the laboratories of democracy!
Another constitutional principle is relevant: the Constitu‐ tion establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local gov‐ ernments, but it does not foreclose all possibility of experi‐ mentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim.
Nonsense. The laboratories of democracy Justice Brandeis wrote of refers to adding constitutional rights, not subtracting them. The Heller majority did reject Justice Breyer’s argument that the “urban” D.C. environment changed the constitutional calculus. Federalism does not work here.
Easterbrook is borderline-contemptuous of Heller, and tries as hard as he can to minimize it to a nullity. And he even dares the Justices to do tell him he’s wrong:
Whether those limits should be extended is in the end a question for the Justices. Given our understanding of existing limits, the judgment is affirmed.
He was reversed before in the case that became McDonald v. Chicago. He should be reversed again.
Beyond constitutional law, Judge Easterbrook made a number of fundamental mistakes about firearms. My friend Will Scharf offers a helpful list:
(1) Page 4: “The AK‐47 and AR‐15 (M16) rifles in military use also are submachine guns, though civilian versions are re‐ stricted to semi‐automatic fire.”
No they’re not; they’re assault rifles. Submachine guns fire pistol calibre cartridges by definition. The AK and AR fire 7.62 and 5.56 mm rifle cartridges, respectively.
(2) Passim: Machine guns are not “illegal.” He keeps referring to them as illegal throughout the opinion. That’s just a bad misstatement of the law. They’re illegal if you don’t have a federally-issued NFA license; with an NFA registration, they’re legal. Calling them “federally-regulated” would have been more accurate.
(3) Page 6: Easterbrook seems blissfully unaware that you can buy large cap magazines for handguns.
(4) Page 6: “We also know that assault weapons gen‐ erally are chambered for small rounds (compared with a large‐caliber handgun or rifle), which emerge from the barrel with less momentum and are lethal only at (relatively) short range.” Is Easterbrook saying that a 5.56 from an AR emerges from the barrel with less momentum than a cartridge from a large-caliber handgun? Out of a 5 inch barrel, a .45 ACP bullet is moving at about 1,000 fps. An AR-15 will typically give you about 3,000 fps with a 5.56. The much smaller 5.56 is much, much more powerful in terms of kinetic energy and is lethal at a significantly longer range than the handgun bullet.
(5) Page 6: “This suggests that [assault weapons] are less dangerous per bullet—but they can fire more bullets.” Page 9: “assault weapons can be beneficial for self‐defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers.”
He doesn’t seem to understand that a 5.56mm round from a rifle cannot be compared to, for example, a 9mm round from a pistol—the ballistic characteristics of the two are just wholly different. The 5.56, while technically smaller, is far more powerful and lethal.
(6) Page 9: “Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.” The “pistols James Bond preferred” were little Walther PPK/Ss, chambered in .380 ACP at most. That’s a tiny cartridge. Easterbrook making them out to be big and scary is absurd. Just look at ’em! They’re little and sleek.
(7) Page 9: “Why else are they the weapons of choice in mass shootings?” This isn’t true. Most mass shootings involve handguns, and few involve assault weapons. And when they do involve assault weapons, they typically also involve handguns. I count 33 out of 49 using handguns and not what Easterbrook would call an assault weapon here: http://www.cga.ct.gov/2013/rpt/2013-R-0057.htm
(8) Page 11: “If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.” WHAT?!? Now he’s saying/implying that a ban on semi-automatic guns would be valid? That’s far, far beyond the assault weapon ban at issue.
In Williams-Yulee, Justice Scalia opens up on the unelected judiciary (his colleagues), which faults Floridians who want to elect their judges. This dissent is blistering:
The Court tries to strike a pose of neutrality between appointment and election of judges, but no one should be deceived. A Court that sees impropriety in a candidate’s request for any contributions to his election campaign does not much like judicial selection by the people. One cannot have judicial elections without judicial campaigns, and judicial campaigns without funds for campaigning, and funds for campaigning without asking for them. When a society decides that its judges should be elected, it neces- sarily decides that selection by the people is more im- portant than the oracular sanctity of judges, their immun- ity from the (shudder!) indignity of begging for funds, and their exemption from those shadows of impropriety that fall over the proletarian public officials who must run for office. A free society, accustomed to electing its rulers, does not much care whether the rulers operate through statute and executive order, or through judicial distortion of statute, executive order, and constitution. The prescrip- tion that judges be elected probably springs from the people’s realization that their judges can become their rulers—and (it must be said) from just a deep-down feel- ing that members of the Third Branch will profit from a hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!) People. (It shouldnot be thought that I myself harbor such irreverent and revolutionary feelings; but I think it likely—and year by year more likely—that those who favor the election of judges do so.) In any case, hostility to campaigning by judges entitles the people of Florida to amend their Con- stitution to replace judicial elections with the selection of judges by lawyers’ committees; it does not entitle the Florida Supreme Court to adopt, or this Court to endorse, a rule of judicial conduct that abridges candidates’ speech in the judicial elections that the Florida Constitution prescribes.
I think this may be why Justice Alito didn’t join the dissent.
Scalia closes by lambasting the “Brotherhood of the Robe”:
This Court has not been shy to enforce the First Amendment in recent Terms—even in cases that do not involve election speech. It has accorded robust protection to depictions of animal torture, sale of violent video games to children, and lies about having won military medals. See United States v. Stevens, 559 U. S. 460 (2010); Enter- tainment Merchants, 564 U. S. ___; Alvarez, 567 U. S. ___. Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement of the freedom of speech? It is no great mystery what is going on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.
On 4/15/20, the Texas Tech Federalist Society hosted me for a discussion on 3D Printed Guns. Here is the video.
In November, the Chief Justice told advocates not to cite Magna Carta.
“If you’re citing Magna Carta in a brief before the Supreme Court of the United States, or in an argument, you’re in pretty bad shape,” Chief Justice Roberts said. “We like our authorities a little more current.”
Today in Williams-Yulee, he cited Magna Carta.
The way the Canon advances those interests is intuitive: Judges, charged with exercising strict neutrality and independ- ence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This princi- ple dates back at least eight centuries to Magna Carta, which proclaimed, “To no one will we sell, to no one will we refuse or delay, right or justice.” Cl. 40 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 395 (2d ed. 1914).
Happy 800th Birthday Great Charter!
In addition to the end-of-semester rush, a few big projects have been keeping me busy:
- The Constitutionality of DAPA Part I in the Georgetown Law Journal Online
- The Constitutionality of DAPA Part II in the Texas Review of Law & Politics
- State Judicial Sovereignty, to be published in the Illinois Law Review
- Collective Liberty, to be presented at the Yale Law School Freedom of Expression Conference
- Cert-Stage Amicus in Schwalier v. Carter (Appointments Clause case)
Plus I have two more briefs I’m working on that haven’t been filed yet, but will be available soon. Stay tuned.