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Today, the Harlan Institute held our kickoff orientation meeting. I feel so privileged to work with such an amazing group of colleagues. I expect great things from our wonderful team.

Seated from left to right are Cara Rose Tucker, Ilya Shapiro, Josh Blackman, Michael McCloskey, Laura Lieberman, and Sam Reitman. Standing from left to right are Yaakov Roth, Adam Aft, and Stephen Richer. Not pictured are Yoni Roth, Corey Carpenter, Steven Rosar, Corinna Cohn, Mathew Allen, Steven Mairella, and John Ure.

From the Washington Times:

A week after a cross was stolen from a Mojave Desert war memorial that played a key role in a recent Supreme Court decision, a different cross was discovered early Thursday morning at the same site.

The National Park Service said in a press release Thursday afternoon that the replica cross would be removed.

Late Thursday, Mojave National Preserve spokeswoman Linda Slater told reporters in California that the new cross is illegal and must come down.

Lovely.

With Kagan’s nomination set and the all oral arguments for the October 2009 Term completed, we are still waiting for some major decisions—specifically, McDonald v. Chicago, Christian Legal Society v. Martinez, Free Enterprise v. PCAOB, Bilski v. Kappos, and Doe v. Reed. In this post, we will offer predictions for these huge cases. Additionally, our statistics might also give us an insight into what is causing the delay within the SCOTUS on handing down these opinions.

From the Financial Times:

Google executives are wrestling over whether to launch controversial facial recognition technology after a barrage of criticism over its privacy policies.

Mr Schmidt said: “Facial recognition is a good example . . . anything we did in that area would be highly, highly planned, discussed and reviewed. When you go through these things, you review your management procedures.”

Facial recognition has the potential to be the next privacy flashpoint. Google already uses the technology in its Picasa photo sharing service. This lets users tag some of the people in their photos and then searches through other albums to suggest other pictures in which the same faces appear.

Privacy campaigners have raised fears that adding facial recognition to Goggles would allow users to track strangers through a photograph, making it into an ideal tool for stalkers and identity fraudsters.

The implications of this technology are startling. If the facial recognition software is somehow applied to Google Street View–although faces are currently blurred–stalkers would be able to locate people on the street anywhere.

Way back in 2008 in Omniveillance, I wrote:

With the advent of photo-sharing Internet sites like Flikr, MySpace, and Facebook, people can now upload photographs and “tag” a specific person’s identity in the photo with metadata, as if they were captioning it in a scrapbook (i.e., John Doe is the third person on the left). Although currently the tagging process must be done manually, new facial recognition such as Google’s Picasa system utilizes artificial intelligence computers to automatically index and tag the subjects of photographs.147 Software like Polar Rose is capable of scanning the entire World Wide Web, matching faces with previously tagged photos based on similarities in biometric features, and automatically tagging the photo with the person’s identity.148 Berners-Lee mentions tagging as one of the key prerequisites to the semantic web.149

Once an image is tagged, these captions can be searched and indexed like any other document on the Internet. As a result of this emerging image-analysis technology, a search engine like Google can easily correlate a person’s face with his name, contact information, personal preferences, friends, and any of his personal information located on the Internet. In fact, Google’s Director of Product Management, R.J. Pittman, “said that Google is developing visual crawling software that can be used for facial recognition and scene analysis.”150 Applied to Street View, this future technology can be combined with tagging and advanced image search capabilities to identify anyone who is recorded by omniveillance.

I’ve had some serious problems with the work of Ken Klukowski (see here and here). And now, so does Doug Kendall.

In a piece on Townhall, Ken Klukowski makes some serious charges about Elena Kagan’s gun record relying on the fact that she did not file a brief  in McDonald v. Chicago to show that Kagan is anti-gun. Doug Kendall properly notes that Klukowski distorted Kagan’s record.

Doug, who filed a brief along with Randy Barnett and other leading academics in favor of reviving the Privileges or Immunities Clause, provided a concise reply to Ken.

As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense.  It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.

As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.

From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.

On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case.  As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.”  Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.

General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.

Ken’s only argument to the contrary involves Benton v. Maryland, a 1969 incorporation case. Ken argues that the Solicitor General filed a brief. As Kendall notes, “Klukowski plays fast and loose with the facts.” Ken writes:

If someone asserts that the solicitor general shouldn’t file a brief because it’s a state matter as to whether the Second Amendment is “incorporated” to the states through the Fourteenth Amendment (which is the issue in McDonald) the record speaks to the contrary. The last time the Supreme Court “incorporated” a right from the Bill of Rights to the states, in the 1969 case Benton v. Maryland, the solicitor general filed a brief, and then (just like Heller in 2008) got divided argument time to express the government’s views in front of the Court.

Kendall replies:

Actually, the record is contrary to Klukowski’s version.  The Solicitor General did file a brief and did receive argument time in Benton – I tracked down this hard-to-find brief before meeting with General Kagan — but he studiously avoided taking a position on the incorporation issue.  Thus, the Benton brief supports, rather than undercuts, the idea that the United States traditionally stays out of incorporation fights.

The fact that Kagan decided not to file a brief in this case says ABSOLUTELY NOTHING about her views on the right to keep and bear arms. Rather, the issue of the United States in an incorporation case is questionable, at best. A Federalist such as Ken should respect the fact that the Federal Government chooses not to wade into state criminal matters, especially when there is no federal law or interest at stake.

Doug also refers to Ken’s “breathless” piece in the Washington Times. Doug concludes noting that “if anyone undermined the constitutional basis for incorporation in McDonald, it’s not Elena Kagan, it is Ken Klukowski himself.”

I reply at great length to the Washington Times article here.

I also found some serious distortions and errors in his Amicus Brief on behalf of the ACRU, see here, which largely relies on an article Ken wrote.

This questionable work from Ken is not surprising, and continues a trend.

I’ll pass on his “bestselling book,” titled The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency , which currently ranks as #2 on Amazon’s best seller list for Conspiracy Theories books.