Blog

From a new study in the Journal Brain:

 Although the brain is only average in size, several regions feature additional convolutions and folds rarely seen in others. For example, the regions on the left side of the brain that facilitate sensory inputs into and motor control of the face and tongue are much larger than normal; and his prefrontal cortex — linked to planning, focused attention and perseverance — is also greatly expanded.

“In each lobe,” including the frontal, parietal and occipital lobes, “there are regions that are exceptionally complicated in their convolutions,” Falk says. As for the enlarged regions linked to the face and tongue, Falk thinks that this might relate to Einstein’s famous quote that his thinking was often “muscular” rather than done in words.

Although this comment is usually interpreted as a metaphor for his subjective experiences as he thought about the universe, “it may be that he used his motor cortex in extraordinary ways” connected to abstract conceptualization, Falk says.

Harvey photographed the brain and then cut it into 240 blocks, which were embedded in a resinlike substance. He cut the blocks into as many as 2,000 thin sections for microscopic study, and in subsequent years distributed slides and photographs of the brain to at least 18 researchers around the world. With the exception of the slides that Harvey kept for himself, no one is sure where the specimens are now, and many of them have probably been lost as researchers retired or died.

The Second Circuit in Kachalsky v. Cacace upheld New York’s gun licensing law, including the discretionary policy for granting concealed-carry permits.

In doing so, the Court parted with Judge Kavanaugh’s dissenting view in Heller II, Judge Elrod, and “academics,” held that the traditional tiers of scrutiny to apply to the Second Amendment.

 A number of courts and academics, take the view that Heller’s reluctance to announce a standard of review is a signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means-end scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1463 (2009); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 405 (2009). We disagree. Heller stands for the rather unremarkable proposition that where a state regulation is entirely inconsistent with the protections afforded by an enumerated right—as understood through that right’s text, history, and tradition—it is an exercise in futility to apply means-end scrutiny. Moreover, the conclusion that the law would be unconstitutional “[u]nder any of the standards of scrutiny” applicable to other rights implies, if anything, that one of the conventional levels of scrutiny would be applicable to regulations alleged to infringe Second Amendment rights.

Good thing the Second Amendment doesn’t have an Anti-Injunction Act!

Anyway, the 2nd Circuit’s analysis concedes that the 2nd Amendment has “some application” outside the home.

What we know from these decisions is that Second 15 Amendment guarantees are at their zenith within the home. 16 Heller, 554 U.S. at 628-29. What we do not know is the 17 scope of that right beyond the home and the standards for 18 determining when and how the right can be regulated by a 19 government. This vast “terra incognita” has troubled courts 20 since Heller was decided. United States v. Masciandaro, 638 21 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., for the 22 Court). Although the Supreme Court’s cases applying the 1 Second Amendment have arisen only in connection with 2 prohibitions on the possession of firearms in the home, the 3 Court’s analysis suggests, as Justice Stevens’s dissent in 4 Heller and Defendants in this case before us acknowledge, 5 that the Amendment must have some application in the very different context of the public possession of firearms. 10 6 7 Our analysis proceeds on this assumption.

The Court has an interesting, and frank discussion about the role that history plays in this analysis.

It seems apparent to us that unlike the situation in 2 Heller where “[f]ew laws in the history of our Nation have 3 come close” to D.C.’s total ban on usable handguns in the 4 home, New York’s restriction on firearm possession in public has a number of close and longstanding cousins. 15 5 Heller, 6 554 U.S. at 629. History and tradition do not speak with 7 one voice here. What history demonstrates is that states 8 often disagreed as to the scope of the right to bear arms, 9 whether the right was embodied in a state constitution or 10 the Second Amendment. . . .

Even if we believed that we should look solely to this 17 highly ambiguous history and tradition to determine the 18 meaning of the Amendment, we would find that the cited 19 sources do not directly address the specific question before 20 us: Can New York limit handgun licenses to those 21 demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper 2 cause requirement does not operate as a complete ban on the 3 possession of handguns in public. Analogizing New York’s 4 licensing scheme (or any other gun regulation for that 5 matter) to the array of statutes enacted or construed over 6 one hundred years ago has its limits.

In other words, the court acknowledge that the history is “highly ambiguous,” and does not speak directly to the question before the court.

The court also has an interesting discussion of what I’ve called equality of rights–treating the amendments in a similar fashion.

Plaintiffs raise a second argument with regard to how 8 we should measure the constitutional legitimacy of the New 9 York statute that takes a decidedly different tack. They 10 suggest that we apply First Amendment prior-restraint 11 analysis in lieu of means-end scrutiny to assess the proper cause requirement. 16 12 They see the nature of the rights 13 guaranteed by each amendment as identical in kind. One has 14 a right to speak and a right to bear arms. Thus, just as 15 the First Amendment permits everyone to speak without 16 obtaining a license, New York cannot limit the right to bear 17 arms to only some law-abiding citizens. We are hesitant to 18 import substantive First Amendment principles wholesale into 19 Second Amendment jurisprudence. Indeed, no court has done so.

The court decides not to import these terms. Why? It would “Result in the erosion of hard-won First Amendment rights.” In other words, the Second Amendment is different from all other rights (see The Constitutionality of Social Cost that poses just that question):

But it 16 would be as imprudent to assume that the principles and 17 doctrines developed in connection with the First Amendment 18 apply equally to the Second, as to assume that rules 19 developed in the Second Amendment context could be 20 transferred without modification to the First. Endorsing 21 that approach would be an incautious equation of the two 22 amendments and could well result in the erosion of hard-won 23 First Amendment rights. As discussed throughout, there are 1 salient differences between the state’s ability to regulate 2 each of these rights.

The court goes on to talk about the fact that this is a bad vehicle, but let’s pause to address this. This is the clearest statement I’ve seen by a court saying that  applying First Amendment doctrine to Second Amendment would dilute the First Amendment’s power. This argument must be premised on the fact that the Second Amendment is a second-class right.

The court finds that “heightened scrutiny” is not automatically triggered here  because the law in question is not a complete ban.

Here, some form of heightened 2 scrutiny would be appropriate. New York’s proper cause 3 requirement places substantial limits on the ability of law- 4 abiding citizens to possess firearms for self-defense in 5 public. And unlike Decastro, there are no alternative 6 options for obtaining a license to carry a handgun. 7

We do not believe, however, that heightened scrutiny 8 must always be akin to strict scrutiny when a law burdens 9 the Second Amendment. Heller explains that the “core” 10 protection of the Second Amendment is the “right of law- 11 abiding, responsible citizens to use arms in defense of 12 hearth and home.” Heller, 554 U.S. at 634-35. Although we 13 have no occasion to decide what level of scrutiny should 14 apply to laws that burden the “core” Second Amendment 15 protection identified in Heller, we believe that applying 16 less than strict scrutiny when the regulation does not 17 burden the “core” protection of self-defense in the home 18 makes eminent sense in this context and is in line with the approach taken by our sister circuits.

Perhaps the coolest part of this opinion, is that in the discussion of the importance of the home, it cites the Third Amendment. Kudos CA2:

That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.

Because the 2nd Amendment permits “latitude,” it passes “intermediate scrutiny.”

We believe state regulation of the use of firearms in 8 public was “enshrined with[in] the scope” of the Second 9 Amendment when it was adopted. Heller, 554. U.S. at 634. 10 As Plaintiffs admitted at oral argument, “the state enjoys a 11 fair degree of latitude” to regulate the use and possession 12 of firearms in public. The Second Amendment does not 13 foreclose regulatory measures to a degree that would result 14 in “handcuffing lawmakers’ ability to prevent armed mayhem 15 in public places.” Masciandaro, 638 F.3d at 471 (internal 16 quotation marks omitted). 17

Because our tradition so clearly indicates a 18 substantial role for state regulation of the carrying of 19 firearms in public, we conclude that intermediate scrutiny 20 is appropriate in this case. The proper cause requirement 21 passes constitutional muster if it is substantially related 22 to the achievement of an important governmental interest.

…

Restricting handgun possession in public to those who 16 have a reason to possess the weapon for a lawful purpose is 17 substantially related to New York’s interests in public 18 safety and crime prevention. It is not, as Plaintiffs 19 contend, an arbitrary licensing regime no different from 20 limiting handgun possession to every tenth citizen. This 21 argument asks us to conduct a review bordering on strict 22 scrutiny to ensure that New York’s regulatory choice will protect public safety more than the least restrictive 2 alternative. But, as explained above, New York’s law need 3 only be substantially related to the state’s important 4 public safety interest. A perfect fit between the means and 5 the governmental objective is not required. Here, instead 6 of forbidding anyone from carrying a handgun in public, New 7 York took a more moderate approach to fulfilling its 8 important objective and reasonably concluded that only 9 individuals having a bona fide reason to possess handguns 10 should be allowed to introduce them into the public sphere. 11 That New York has attempted to accommodate certain 12 particularized interests in self defense does not somehow 13 render its concealed carry restrictions unrelated to the 14 furtherance of public safety.

The court also addressed the link between guns and danger.

To be sure, we recognize the existence of studies and 16 data challenging the relationship between handgun ownership 17 by lawful citizens and violent crime. Plaintiffs’ Reply Br. 18 at 37-38. We also recognize that many violent crimes occur 19 without any warning to the victims. But New York also 20 submitted studies and data demonstrating that widespread 21 access to handguns in public increases the likelihood that 22 felonies will result in death and fundamentally alters the safety and character of public spaces. J.A. 453, 486-90. 2 It is the legislature’s job, not ours, to weigh conflicting 3 evidence and make policy judgments. Indeed, assessing the 4 risks and benefits of handgun possession and shaping a 5 licensing scheme to maximize the competing public-policy 6 objectives, as New York did, is precisely the type of 7 discretionary judgment that officials in the legislative and 8 executive branches of state government regularly make.

And, in an epic citation contrast, the majority counters Heller with NIFB!

To be sure, “the enshrinement of constitutional rights 10 necessarily takes certain policy choices off the table.” 11 Heller, 554 U.S. at 636. But there is also a “general 12 reticence to invalidate the acts of [our] elected leaders.” 13 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 14 2579 (2012). “‘Proper respect for a coordinate branch of 15 government’ requires that we strike down [legislation] only 16 if ‘the lack of constitutional authority to pass [the] act 17 in question is clearly demonstrated.’” Id. (quoting United 18 States v. Harris, 106 U.S. 629, 635 (1883)). Our review of 19 the history and tradition of firearm regulation does not 20 “clearly demonstrate[]” that limiting handgun possession in 21 public to those who show a special need for self-protection 22 is inconsistent with the Second Amendment. I

This is a really well-reasoned opinion. Let’s see what SCOTUS does with it.

P.S. The Second Circuit should stop putting line numbers in slip opinions. It is absolutely worthless in the digital age, and it makes copying from opinions very difficult.

During oral argument in Kiobel II, Justice Scalia asked the Solicitor General, “Why should — why should we listen to you rather than the solicitors general who took the opposite position and the position taken by Respondents here in other cases, not only in several courts of appeals, but even up here.”

General Verrilli answered, not too persuasively, “It’s my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law.”

Chief Justice Roberts was none too pleased with that response, and chimed in, “Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”

Today during oral argument in US Airways, Inc. v. McCutchen  (11-1285), Chief Justice Roberts continued that theme when he seized upon a Deputy SG in a relatively mundane ERISA case, where the current Secretary of Labor departed from a position by President Bush’s Secretary of Labor.

CHIEF JUSTICE ROBERTS: Counsel, the position that the United States is advancing today is different from the position that the United States previously advanced. You make their point in footnote 9 of your brief. You say that in prior case, the secretary of labor took this position. And then you say that, upon further reflection, the secretary is now of the view — that is not the reason. It wasn’t further reflection. We have a new secretary now under a new administration, right?

MR. PALMORE: We do have a new secretary under a new administration. But that -­

What was the offending footnote? In part, it read “Upon further reflection, and in light of this Court’s discussion of ERISA’s . . .   the Secretary is now of the view that the common-fund doctrine…”

Tony Mauro noted that in the SG’s office, there is a running joke that ” the phrase “upon further reflection” used in briefs to indicate a change should actually be, “upon further election.”

The Chief is not pleased, noting that “we are seeing a lot of that lately.”

CHIEF JUSTICE ROBERTS: It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change. We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.

Get used to it Chief. Four more years.

Tony observed that in addition to Kiobel, the Chief also took a similar tact in “last term’s Fair Labor Standards Act case Christopher v. SmithKline Beecham Corp., in which the government changed its view on the legal status of pharmaceutical salespeople. The court’s June 18 decision, which Roberts joined, highlighted the government’s shift and said the Labor Department’s new position was not entitled to deference.”

The Chief continued, and called the SG’s position “a little disingenous.”

MR. PALMORE: With respect, Mr. Chief Justice, the law has changed since that brief was filed nearly ten years ago in the Court’s review. CHIEF JUSTICE ROBERTS: Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.

All while the Solicitor General was sitting in attendance…

Roberts’s ire aside, I think this raises a very important point I have discussed here and here: What deference is owed, when an administration changes the policy of a previous administration?

Justice Stevens is fond of saying that when the Court’s precedents change, the only thing that actually changed was the “composition” of the Court. Much the same can be said about the administration in office–though the latter is elected, the former serve for life.

Prior to the election I queried what would happen to the DOMA litigation if Mitt Romney won. In short, probably a lot:

How would a change in administration affect this litigation?

Well presumably the House Republican group will drop out. But will Paul Clement argue anyway? A special assistant to the SG office? And will the changed administration affect any stated governmental interests? Will the new SG file supplemental briefs changing course? Will the new SG suddenly find that heightened scrutiny is not applicable? Will the new SG argue that some compelling interests his predecessor argued are not so compelling?

So generally speaking, how much deference is owed to the Solicitor general’s position?

In the past I have wondered about what deference is owed to the government’s assertion of its best interests in the context of constitutional rights. Last term in United States v. Alvarez, the government asserted that it could not build a database to house the recipients of medals of honor, and this justified their policy of criminalizing stolen valor. In the opinion, Justice Kennedy said that they should build the database, as a significantly-less restrictive means to combat the false speech. A few months after the opinion, the government started building that database.  It seems to be online now at valor.defense.gov, and lists the recipients of the Medal of Honor and service crosses.

Relatedly, there are reports that the President considered putting together a manual to codify drone rules, fearing he may be booted out of office. Would such a policy really be binding, especially in light of Obama’s own “go it alone” approach to the unitary executive?

I wonder if the Court’s pushback will cause the SG to second-guess changing a prior position–or at least do so more persuasively?

H/T Tony Mauro and DC Dicta.

Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Much the same could be said about Cosmic Constitutional Theory by Judge J. Harvie Wilkinson, III, the latest jurist to write about his own constitutional theory—or in Judge Wilkinson’s case, a self-professed lack of a constitutional theory.

Judge Wilkinson views all theories of constitutional laws as “cosmic” in the metaphyhsical sense. “[T]he search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.” Living constitutionalism, the hallmark of the Warren Court, is “activism unleashed.” Originalism—in many respects a moderating-jurisprudence born in reaction to living constitutionalism—to Judge Wilkinson is merely “activism masquerading as restraint.” Pragmatism—the approach endorsed most prominently by Judge Posner—is “activism through antitheory.” Constitutional theories are activism all the way down. So, if living constitutionalism, originalism, and pragmatism are out, what is the best judicial philosophy? To Judge Wilkinson, that is the wrong question. In his view, the ideal jurisprudence is none at all. “So what is my theory?” he asks, rhetorically. “The answer is I have no theory.”

But it is not quite that simple. The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.

Elsewhere, Judge Wilkinson has written that “[w]hen a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.” Judge Wilkinson punts on these important questions quite unconvincingly: outlier “[d]ecisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”

To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and as Gerard Magliocca put it, somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Justice Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans—will happen, and the Supreme Court will confront them.

More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.

And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”

Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.

This review is available on SSRN.

What is it with squatters in Texas? During my first day of class, I introduced the story of Kenneth Robinson, who attempted to adversely possess a $300,000 home in Dallas. He failed, and was evicted by Bank of America.

Now, a squatter in Dallas is on trial for theft, including stealing clothing and furniture from a $400,000 home in Dallas while the owner was in Houston for cancer treatments.

A North Texas couple accused of “squatting” face up to life in prison if convicted of stealing furniture and clothing from a home while the owner was in Houston for cancer treatments.

David Cooper, 26, and Jasmine Williams, 23, both of DeSoto, each are charged with one count of burglary of a habitation, which carries a maximum 20-year prison term, and one count of property theft over $200,000, which carries a maximum penalty of life in prison. Jury selection for their trial started Monday afternoon in Fort Worth.

In October 2011, Cooper paid $16 to file what is known as an affidavit of adverse possession with the county clerk’s office, claiming ownership of the $405,000, 4,320-square-foot home in Arlington. The obscure Texas law allows people to claim rights to otherwise unclaimed land after a period of time, typically 10 years, as long they maintain it and pay taxes on it.

It’s often used to resolve disputes between homeowners over driveways, lawns or other property with shared boundaries — but dozens of people in North Texas have started trying to use the law to file claims on foreclosed or temporarily empty homes.

Defense attorney Deborah Goodall says Cooper performed upkeep on the property and intended to live in the home.

“Our position is that you cannot commit burglary” if you have filed an affidavit of adverse possession, Goodall told the Fort Worth Star-Telegram. “Burglary requires you to enter and the intent is to commit another offense, such as theft.”

During trial, David Cooper argued:

 I actually had heard through the media and other sources that abandoned properties could be possessed through a claim called adverse possession.

Dallas News | myFOXdfw.com

Cooper also claimed he improved on the land by landscaping, and would have confronted the real owner to file suit against him. In other words, he wanted to make sure he was openly on the land, there was hostility, and he met the requisite period. This guy knows the requirements of AP!

I’d be willing to wager that Cooper heard of Robinson’s shtick.

The claims became popular last year, particularly after one man paid $16 to file a one-page claim to an empty, $340,000 home in the upscale Dallas suburb of Flower Mound. Kenneth Robinson placed a “No Trespassing” sign in the window, invited TV cameras inside for a tour and created a website where he offered an e-book and training sessions for would-be squatters.

Robinson apparently inspired dozens of imitators who moved into Dallas-Fort Worth area homes — some of which were still occupied. After a bank’s attorney went to court to have Robinson kicked out, he left on his own in February — about eight months after he moved in.

In fact, local district attorneys caught onto Robinson’s AP scheme:

Last year, Tarrant County District Attorney Joe Shannon deemed adverse possession affidavits “fraudulent” and directed the county clerk’s office not to accept them. Dozens of people had taken ownership of more than $8 million of Tarrant County property.