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I don’t play videogames, I find them to be a waste of time. Though, when games incorporate the Supreme Court, I must blog. A few months ago I blogged about a game called Assassin’s Creed: Brotherhood. G4 has some more details, and video about the game:

The overall theme of Batch 7 is the idea of corporations being granted the same rights as individuals, specifically with regards to their ability to donate unlimited (and undisclosed) amounts of money to political causes. As crazy as such a scenario sounds, it’s actually a reality now thanks to the Supreme Court’s decision in Citizens United v. Federal Election Commission. While certainly a cause for concern in the real world, in the world of Assassin’s Creed, this monumental event was not only engineered by the Templars, but is also a major vicory for The Company and whatever other shadowy corporations hold sway over large portions of the world’s governments.

The photo used in this puzzle features eight of the current Supreme Court Justices, as it was taken before Justice Elena Kagan replaced Justice David Souter, who retired in 2009. Scrolling over a few of the Justices’ faces reveals some choice quotes in reference to the power corporations should wield, but the key piece of the puzzle can be found on Chief Justice John Roberts’ ring finger (Hinted at by the mention of “wed” in the puzzle header).

It’s hard to see it in the video, but the infrared scanner reveals the ring is actually a Templar cross, and clicking on it leads you to the next piece of the puzzle that you need to solve in order to get to the best part of the whole sequence: a letter discussing several amazing topics like President George W. Bush (“W.”) wanting to reignite tensions with Iraq, thereby providing Dick Cheney (“C.”) with the perfect opportunity to cash in on military contracts, and the desire to have Chief Justice Roberts appointed so as to pave the way for an eventual decision such as the one reached in Citizens United.

Watch the video. There are actually quotes from Citizens United v. FEC when you click on Justice Kennedy.




H/T Zak Slayback

Update: Thanks to Zak’s eagle eyes, I see that the game uses a facsimile of Scalia’s signature.

Compare:

with

Pretty authentic.

It strikes me that challenges to laws touching on the Second Amendment take two forms. The first type–like the suits in Heller and McDonald–seeks to challenge laws restricting access to firearms. For example, the law in the District of Columbia banning the possession of hand guns or bans on the right to carry arms outside the home. While the analogy is not precise, I see these laws as akin to prior restraint. They prevent the exercise of a constitutional right, presumably, to prevent certain social harms (violence, crime, etc.).

The second type of challenges deal with a person who did something wrong. In these cases, a person used or possessed a firearm in violation of some statute (like “longstanding prohibitions”), or is seeking the restoration of his Second Amendment rights following a conviction of some crime (such as Skoien).

Under Heller/McDonald, both of these cases are treated identically. A person with no criminal record, and who is a fine upstanding citizen–like Dick Heller or Otis McDonald–is treated in the same light as an unsavory armed and dangerous felon (or an armed misdemeanant).

This strikes me as wrongheaded. My research on the constitutionality of social cost shows that an implicit limitation on the Court’s Second Amendment jurisprudence is the desire to limit violence stemming from firearm ownership. The former group is much less likely to cause violence than the latter. The costs are not equivalent.

Remedies generally are ex-post (exclusion of evidence, testimony obtained in violation of miranda, obscenity prosecution, etc). Regulations on the right to keep and bear arms, in contrast, are ex ante. They are based on statistics of posisble harms which may or may not happen.

Further, granting rights to people like Heller and McDonald may generate concerns that dangerous felons who challenge convictions will prevail in future cases. Concerns about a slippery slope towards the second type of challenge effectively limit the first type of challenges.

These two types are not the same, and they should be treated differently.

Second Amendment challenges should be bifurcated. The framework for ex ante licensing should be separate from framework for ex post punishment of using guns for violence.

If standard A was applied to challenges like Heller and McDonald, and standard B was applied to challenges like Skoien, the scope of A would become broader and more protecting of liberty, while the scope of B can be more narrowly tailored to address the harm at hand.

Further, to continue my attempt to equate the Second Amendment to other provisions in our Constitution, I think it makes sense to look at the 4 questions:

• Who — Who can bear arms? (an upstanding citizen with no criminal record of an unsavory criminal)
• What — What type of arms can a person bear?
• Where — Where can a person keep arms? (sensitive place, the home similar to the “place” in time-place-manner)
• When — When would a person be permitted to bear arms, or more specifically, after what type of delay would a person be permitted to own arms? (waiting period, etc)
• Why — Why is the right being restricted? This goes to who has the burden to regulate the right.

I am making very good progress on this paper. I should have more soon.

Rick Hasen posted an interesting piece on SSRN titled Lobbying, Rent Seeking, and the Constitution. Here is the abstract:

Politicians across the political spectrum, from Barack Obama to Sarah Palin and Rand Paul, routinely castigate lobbyists for engaging in supposedly corrupt activities or having unequal access to elected officials. Since attaining office President Obama has imposed unprecedented new lobbying regulations, and he is not alone: both Congress and state and local legislative bodies have done so in recent years. At the same time, federal courts, relying upon the Supreme Court’s new campaign finance decision in Citizens United v. FEC, have begun striking down lobbying regulations, including important regulations limiting campaign finance activities of lobbyists and imposing a waiting period before legislators or legislative staffers may work as lobbyists. Two courts have held such laws could not be sustained on anticorruption grounds, and they are unlikely to be sustained on political equality grounds either.

This Article advances an alternative rationale which could support some, though not all, of the recent wave of new lobbying regulations: the state’s interest in preventing the socially inefficient activity of rent-seeking. Less technically, the government’s interest is in promoting national economic welfare. Rent-seeking occurs when resources are dedicated to capturing a government benefit, rather than being put to a productive use, and lobbyists are often the key actors securing such benefits. The rent-seeking analysis focuses attention on the systemic societal costs of lobbying, rather than engaging in unjustified vilification of the vast majority of lobbyists.

Part I of this Article provides an overview of the current state of lobbying regulation and lobbying jurisprudence. Part II proposes a new anti-rent-seeking rationale for lobbying regulation. It begins by describing the political science literature on how lobbying works, as well as current statistics on the extent of lobbying on the federal level and the costs of lobbyist-driven rent-seeking on the national economy. Some of the new and proposed lobbying regulations, such as anti-bundling provisions and anti-revolving door provisions, could decrease the total amount of interest group rent-seeking. The state’s anti-rent-seeking interest must be balanced against the First Amendment costs of lobbying regulation in infringing on the right to speak and petition the government. I defend the reduction of rent-seeking as an important (even potentially compelling) state interest that justifies at least some new lobbying regulations against constitutional challenge.

Part III turns to objections and extensions of the argument. I respond to objections on both ends and means. On ends, I consider the circumstances in which the promotion of national economic efficiency can trump First Amendment rights. On means, I consider whether there is sufficient proof that lobbying regulations are sufficiently tailored to a reduction in rent-seeking and whether, because the “hydraulic” nature of money in politics, attempts to regulate lobbying so as to decrease rent-seeking will be easy to evade. Under extensions, I consider whether the anti-rent seeking rationale could be used to justify the reenactment, as suggested by Justice Stevens, of the ban on the spending of corporate treasury funds in candidate elections, as well as the recent SEC “pay-to-play” rule for investment advisers.

I have often considered the interplay between rent seeking and the Constitution. I think one of the greatest limitations on rent seeking in our Constitution is the doctrine of enumerated powers. The less Congress can do, the less there is a chance they can be captured. However, if Congress can do (just about) anything they want–as is the case under our current jurisprudence–their susceptibility to capture, and accordingly inefficient rent seeking losses, is greater.

Hasen views the elimination of rent seeking as a policy justification to limit First Amendment rights under campaign finance laws. I don’t quite know if one can use public choice rationales to limit freedom. However, enforcing the doctrine of enumerated powers comports with public choice theory and minimizes wasteful rent seeking. This would seem to be a powerful policy rationale to enforcing a more stringent enumerated powers doctrine. I’ve been thinking about this since law school. Hopefully one day I can get around to writing about it.

I can attest to this. I once gave up my blackberry and all technology for 25 hours. I think I actually had the shakes by the end. Not a very restful day of rest. But I made it.

I found John Galt’s summer home. It is at the corner of Galt Ocean Drive and A1A in Ft. Lauderdale.