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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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7th Circuit Suggests Non-Violent Felon May Prevail in As Applied Challenge to Felon-in-possession prohibition

August 5th, 2010

From Sentencing Blog:

The Seventh Circuit handed down today another intriguing Second Amendment opinion in which it finds unavailing an as-applied challenge to 18 U.S.C. § 922(g)(1), the federal felon-in-possession criminal prohibition.  There are lots of interesting aspects of the panel’s ruling in US v. Williams, No. 09-3174 (7th Cir. Aug. 5, 2010) (available here) — including the fact that retired Justice Sandra Day O’Connor was one of the members of the Seventh Circuit panel (though she was not the author of the unaninous panel opinion).

It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).

From the opinion:

And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams.  Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him.  See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”).  Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

When one considers the 7th Circuit’s En Banc opinion in Skoien–which considered a domestic violence misdemeanor–it seems the 7th Circuit is really open to revisiting the ban on guns for those convicted of non-violent felonies.

The Right To Earn an Honest Living and That Little Girl Who Was Not Allowed to Sell Lemonade

August 5th, 2010

By now you have undoubtedly hear of this story out of Oregon. A 7-year-old girl tried to open up a lemonade stand, but some bureaucratic wonk told her she needed a $120 temporary restaurant license, at the risk of incurring a $500 fine.

At the time, the state was worried about the public’s health:

“I understand the reason behind what they’re doing, and it’s a neighborhood event, and they’re trying to generate revenue,” Jon Kawaguchi, environmental health supervisor for the health department, said of the fair organizers. “But we still need to put the public’s health first,

Now, after a storm of public sentiments against this idiotic policy, the state backtracked

“Our health department what they were trying to do, I understand…I just feel like we have to be able to distinguish between a 7 year old, who is selling lemonade and trying to learn about business and someone who actually has a business,” Cogen said.

First, what changed? Why are health concerns any less valid for a lemonade stand than other eating establishments. IF anything, a little girl would know less about proper hygienne and have less supervision. Why is the state shirking their duty? Oh yeah.  The enforcement of these rules are arbitrary.

Which brings me to the most important question. Why does this story make people so upset?

Millions of business are constantly barraged by countless regulations, apparently, in the interests of public health. If the state can waive the requirements for this precocious young entrepreneur, why do older and more established entrepreneurs have to be so burdened?

I think the answer to this question is simple. Most Americans recognize the meaning of the right to earn a living, but only get upset about it when a cute little girl can’t sell lemonade. I hope this story makes people open their eyes and look around them. What about all of the unseen costs, to paraphrase Bastiat. What about all of the businesses that never go into existence out of fear of excessive fines? What about all of the lost labor and capital never spent?

If you are generally opposed to any notion of the right to pursue an honest living, ask yourself,why does it bother you so much that this little girl cannot sell lemonade. Then, ask yourself what you think about other regulations that stifle the entrepreneur. This story does not tug on our heart strings simply because she is adorably selling lemonade for 50 cents a cup (suggested price) at a fair. It tugs on our heart strings because the state is unnecessarily clamping down on this little girl’s ability to make some money.

I wish this young girl well, and hope her future endeavors are met with much less resistance from the state. See also Tim Sandefur’s post.

Harlan Institute Fall Intern Program – Apply Now!

August 5th, 2010

Please take a look at the Harlan Institute Fall Intern Program. The Harlan Institute is a non-profit I co-founded. The Harlan Institute’s mission is to bring a stylized law school experience into the high school classroom to ensure that our next generation of leaders has a proper understanding of our most fundamental laws. By utilizing the expertise of leading legal scholars and the interactivity of online games, Harlan will introduce students to our Constitution, the cases of the United States Supreme Court, and our system of justice.  Harlan’s long term strategic goal is to develop condensed law school courses that can be taught at no cost in high schools across the country using engaging online programs. Harlan has partnered with iCivics, an organization founded by Justice Sandra Day O’Connor, to help bring our products to students nationwide.

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Candidates selected for the Harlan Intern Program will work closely with our executive board, including me, to help develop two major initiatives, FantasySCOTUS.org and YourConstitution.net.

FantasySCOTUS.org will be a Supreme Court fantasy league targeted towards high school classes that teach about the Supreme Court, the Constitution, and civics. The site will be free for all teachers and students to use. What makes FantasySCOTUS.org so effective for pedagogical purposes is that it is real. These are real cases that the students will read in the news. Leveraging the immense popularity of fantasy sports among teenagers, FantasySCOTUS.org will transform following the Supreme Court from a routine review of old cases into an exciting game of predicting live cases. Factoring in the competition aspect, as students will compete with other classes across the Nation, this engaging and interactive platform will make the Supreme Court speak to the students unlike ever before.

YourConstitution.net will bring the Constitution to life by shining a light on the faces and places that gave rise to famous Supreme Court cases, and telling their stories. This interactive website will take the reader through a visual tour of some of the most famous cases in constitutional law history. Along this journey, the reader will see some rare archived photos of the people and places involved; hear the facts of the cases retold from a human perspective; and most importantly, learn the history and see photographs of what happened to those people and places after the Supreme Court decided their fates.

Application Process

The process is short and simple. Please send a resume and a writing sample to info@harlaninstitute.org. If your application is selected, you will receive a brief telephone interview. For more details, please visit www.HarlanInstitute.org

Candidate Qualifications:
The Institute is looking for candidates with an interest in the Supreme Court, the Constitution, and most importantly, in liberty. Entrepreneurial spirits and out-of-the-box thinkers are ideal candidates. While our operations are headquartered in Washington, D.C., a big part of our mission is reaching out to educators across the country, so we encourage people from outside of the Washington, D.C. area to apply. As for qualifications, the Institute is looking for candidates with a variety of skills and backgrounds:
  • Legal, Political Science, & Government- The Institute is looking for candidates with an interest in constitutional law, who keep abreast of current Supreme Court cases, and can explain cases in plain English
  • Technology- All of the Institute’s lesson plans are driven by technology. Candidates with a background in web development (HTML, PHP, MySQL), graphic design (Photoshop, Illustrator), and a good grasp of Web 2.0 (Facebook, Twitter, Blogs, etc.) are in demand.
  • Education- An important component of the Institute’s initiatives is teaching, primarily high school students. Candidates with a background in education, and those with teaching experience, are in demand
  • Business- The Harlan Institute needs skilled candidates who can plan, market, and raise funds for this exciting new product to a national audience. A background in marketing, advertising, or finance can help shape the roll-out of the Institute’s products.

Responsibilities:

FantasySCOTUS.org:

  • Research cert grants and cases pending before the Supreme Court for the 2010 October Term
  • Summarize the cases and questions presented in plain English
  • Reduce the case to one or two primary issue
  • Gather all relevant precedents, statutes, and other resources
  • Prepare lesson plans for teachers to use to teach case
  • Formulate blog posts for each class, and scoring rubric
  • Investigate Justices’ voting histories on that topic to allow students to make informed predictions
  • Work on developing the league and setup for the September school year
  • Integrate site with YourConstitution.net
  • Develop weekly SCOTUS trivia tidbits
  • Prepare other related research projects for students
  • Promote and market FantasySCOTUS.org
  • Develop grassroots network of teachers nationwide (e-mail, message boards, direct mail if needed)
  • Reach out to home-schooling market
  • Research different advertising opportunities and ways to get in classroom
  • Fundraise and help develop donors for FantasySCOTUS.org and the Harlan Institute

YourConstitution.net:

  • Utilize the Library of Congress and other D.C. Libraries to locate photographs and other materials dealing with the people behind famous constitutional Supreme Court cases
  • Research famous Supreme Court cases, summarize them in plain English, focusing on the human element of the cases
  • Obtain photographs for each of the cases
  • Manage the YourConstitution.net ConWiki
  • Reach out to famous Constitutional litigants, through phone, e-mail, and direct mail, and schedule interviews with the Institute
  • Manage copyright issues and ownership of photographs
  • Communicate with historical societies, records halls, and other organizations that may have photographs
  • Assist with Harlan Institute publication, Constitutional Places, Constitutional Faces
  • Promote and market YourConstitution.net in various educational markets as a resource for students to learn

And I, for one, welcome our new Justice Overlord!

August 5th, 2010

Congratulations Justice Elena Kagan!

Oh FantasySCOTUS predicted Kagan as the nominee back in May. Just sayin’.

If Sexual Orientation Discrimination is Sex Discrimination Why Would Intermediate Scrutiny Not Apply? Other questions from Perry v. Schwarzenegger

August 5th, 2010

After some more reflection, I had a few other thoughts on the reasoning of Judge Walker’s opinion in Perry v. Schwarzenegger.

First, why wouldn’t intermediate scrutiny apply for a classification based on gender? Walker found that Prop 8 targets people because of their sexual orientation, which is equivalent to discrimination based on sex.

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

Later Walker writes:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

If sexual orientation discrimination is “equivalent” to a claim of sex discrimination, why would the Court simply apply intermediate scrutiny, like they did in Craig v. Boren or VMI? Why would strict scrutiny apply? And if strict scrutiny applies, why did his entire equal protection analysis involve rational basis review? Additionally, his rational basis review was hardly rational basis review. This makes the rational basis plus bite standard from Cleburne and Roemer look like tapioca pudding. It’s like he didn’t apply the one tier of scrutiny that should have applied (intermediate scrutiny) but did apply the standard that did not apply (rational basis), and did not apply it correctly (rational basis plus super-duper bite).

Second, I am having difficulty reconciling how Walker’s due process and equal protection arguments overlap. Invariably when talking about gender equality or marriage equality, fundamental liberty interests necessarily bleeds into sex/sexual orientation classifications protected by the equal protection clause. I get that. But I am confused with how Walker got there.

Loving v. Virginia supports the proposition that the liberty interest in marriage is fundamental. But correct me if I am wrong, but Loving considered the traditional (I use the word traditional in a descriptive, and not a normative sense) definition of marriage. I mostly agree with Walker’s arguments that marriage has evolved so it no longer represents the gendered roles that the institution imparts. So in that case, does the fundamental right recognized in Loving support same-sex marriage?Walker also relies on Glucksberg. Glucksberg Step 2, which is usually fatal, requires a narrow definition of the right. Walker could not have defined marriage more broadly.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.

If Walker would have held that Prop 8 violates equal protection–because it irrationally discriminates based on sexual orientation–he could have established the proposition that the right protected in Loving was the same right opponents of Prop 8 sought. Therefore SSM is a fundamental right, and subject to strict scrutiny. Once there, strict scrutiny applies for a fundamental right and its a walk in the park. He would not have needed to recognize a “new” fundamental right. Simply he would have used equal protection to show that all types of marriage are marriage under Loving, and Prop 8 violated that right. This, to me at least, seems to flow much more logically under our 3-tiered constitutional system.

Third, a follow-up question. If a Priest in California refuses to marry two men, or two women, will someone bring suit alleging violation of a fundamental right? This would be an interesting freedom of association/free exercise/substantive due process kerfuffle. Stay tuned.

Just some initial thoughts. I am certain Judge Reinhardt will write a much better opinion on appeal.