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Hizzoner had some choice remarks about the Constitution and liberty after Boston. He should really stop capitalizing on every single human tragedy to advance his agenda.

“The people who are worried about privacy have a legitimate worry,” Mr. Bloomberg said during a press conference in Midtown. “But we live in a complex word where you’re going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change.”

You know, it’s not like New Yorkers ever had to balance with security and civil liberties after a terrorist attack. Oh that’s right.

“Look, we live in a very dangerous world. We know there are people who want to take away our freedoms. New Yorkers probably know that as much if not more than anybody else after the terrible tragedy of 9/11,” he said.

“We have to understand that in the world going forward, we’re going to have more cameras and that kind of stuff. That’s good in some sense, but it’s different from what we are used to,” he said.

And he turned to the Second Amendment! Why not.

“Clearly the  Supreme Court has recognized that you have to have different interpretations of the Second Amendment and what it applies to and reasonable gun laws … Here we’re going to to have to live with reasonable levels of security,” he said, pointing to the use of magnetometers to catch weapons in city schools.

“It really says something bad about us that we have to do it. But our obligation first and foremost is to keep our kids safe in the schools; first and foremost, to keep you safe if you go to a sporting event; first and foremost is to keep you safe if you walk down the streets or go into our parks,” he said. “We cannot let the terrorists put us in a situation where we can’t do those things. And the ways to do that is to provide what we think is an appropriate level of protection.”

He is probably still looking for a way to tie in trans fats.

When is Mayor Leviathan’s term up? I was thinking about this the other day. Part of me is excited for Bloomberg’s term to be up. But, the other part of me is dreading it. Now he will have all the time in the world to dedicate to his crusades. Most politicians lose their microphone after leaving office, but not Bloomberg. He will be just as loud and ornery as ever.

One of the more perplexing aspects of recent Second Amendment caselaw is how a number of courts of appeals have consistently held that undocumented immigrants lack protection under the Second Amendment. Of course, even nonresident aliens have rights under the First Amendment (see Bluman v. FEC), Fourth Amendment (Verdugo-Urquidez), Fifth Amendment (reading Miranda rights to Tsarnaev), etc. But what about the Second Amendment?

Anjali Motgi writes in the Stanford Law Review Online to explore why courts have held that undocumented immigrants lack Second Amendment rights. Here is a taste:

The appropriate standard of review for Second Amendment regulations and the application of that standard are issues that the Supreme Court has yet to address, and Carpio-Leon or a case like it offers a fine vehicle to take on these questions. After Heller, in an examination of regulations mandating registration of handguns and prohibiting ownership of semiautomatic assault rifles, the D.C. Circuit applied intermediate scrutiny, a standard it described as requiring a “close fit” between these laws and the government interests they are intended to serve. 20 The level of deference afforded by the Tenth Circuit in Huitron-Guizar, although labeled intermediate scrutiny, seems more like a rational basis review—but perhaps rational basis review is all that is required for judicial review of firearm regulations. If intermediate scrutiny is indeed required, might it be the case that the statute represents a legitimate governmental objective gone awry with an overbroad restriction not substantially related to that objective? If the Second Amendment protects illegal aliens, restrictions on those protections would require either a precise designation of the subset of aliens whose armsbearing is to be restricted, with a particularized justification for that restriction, or a more thorough legislative articulation of the case for treating all illegal aliens as a dangerous class. A more narrowly tailored statute— targeting, for instance, illegal aliens who are eligible for expedited removal, if such individuals are found to be more likely to commit crimes—might survive intermediate scrutiny, even if § 922(g)(5) does not. Presumptive Second Amendment protections for illegal aliens would, then, facilitate a more productive judicial dialogue about permissible crime-reduction legislation.

My point is simply this: if the Second Amendment protects a truly fundamental individual right, then barring any firearm possession by all illegal aliens cannot be upheld without more—a more robust judicial holding that its fundamental protections are categorically denied to a class of persons, or a more-than-cursory legislative justification for the restriction of these protections. If the statute can stand as is, then perhaps the right to bear arms is less central to the constitutional pantheon than its most zealous advocates would have us believe.

When Bluman was being argued, I was amazed that immigrant-rights groups did not submit any amicus briefs [Update: Will Buade reminds me that one group, represented by Bancroft, filed an amicus in support Bluman. I stand corrected]. This should have been in their interest–expand rights for non-citizens. Likewise, I have been amazed that immigrant-rights groups haven’t been more vocal on this issue. Perhaps, the collateral consequences of expanding Citizens United, or expanding gun rights, is antithetical to other interests held by these groups.

Is it unconstitutional for a school to suspend AND arrest (!) a student for wearing an NRA shirt that has a picture of a gun? This father in West Virginia thinks so:

On Thursday, the same day that the gun lobby and its supporters in Congress roundly defeated a package of gun control bills pushed by President Obama, eighth-grader Jared Marcum was suspended by Logan Middle School and briefly jailed for wearing a pro-NRA T-shirt.

The T-shirt had picture of a gun, and school officials deemed it a violation of their dress code, which bans profanity, discrimination, or violence on clothing.

Jared says the decision violates both his First Amendment right to free speech and his Second Amendment right to bear arms, and his father has vowed to “go to the ends of the earth” to clear his son’s name – which could include filing federal or civil lawsuits against the district, a lawyer for the family said.

“What they’re doing is trying to take away my rights, my freedom of speech, and my Second Amendment,” Jared told WOWK-TV.

Under Tinker, it is unclear if such a T-Shirt caused a disruption in the classroom. Really, in West Virginia, guns are so common. I can’t imagine that this was out of the ordinary.

In West Virginia, Jared was told to stay home from school on Friday, and several friends who wore T-shirts with images of guns on them to school as a sign of solidarity were told to take them off. The day before, a dispute between Jared and a Logan Middle School teacher resulted in Jared being arrested and charged with obstruction and disturbing the education process, WOWK reported.

Jared says he has received Facebook posts and phone calls from across the country supporting him. “People are saying that I did the right thing, that they’re proud,” Jared told WOWK.

Senator Manchin could not be reached for comment.

 

From paragraph 3 of the complaint:

(1) unlawfully using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device) against persons and property within the United States used in interstate and foreign commerce and in an activity that affects interstate and foreign commerce, which offense and its results affected interstate and foreign commerce (including, but not limited to, the Boston Marathon, private businesses in Eastern Massachusetts, and the City of Boston itself), resulting in death, in violation of 18 U.S.C. 2332a;

(2) maliciously damaging and destroying, by means of an explosive, real and personal property used in interstate and foreign commerce and in an activity affecting interstate and foreign commerce, resulting in personal injury and death, in violation of 18 U.S.C. 844j.

See here for my previous thoughts on the commerce-clause hook in this case.

Update: Notably, the entirety of the complaint is based on surveillance imagery–much of it crowdsourced–and introduces nothing from any Miranda-less interrogations conducted.

Consider this hypothetical  Assume Tsarnaev was trapped not in Boston, but in the nearby White Mountains of New Hampshire. A manhunt in the frigid winter would have been impossible. The police suspected he was organizing another terrorist attack, perhaps even building more pressure-cooker bombs in his cabin. A drone had a clear shot at him.

Could Attorney General Holder have authorized a lethal drone strike?

Let’s go back to Eric Holder’s initial answer to Senator Rand Paul on whether the United States could use a lethal drone strike on a U.S. Citizen on American soil?

But “it is possible, I suppose to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States,” Holder said. “For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack” like Pearl Harbor or 9/11.

“Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of this authority,” said Holder.

I think the answer, under Holder’s initial explanation, is yes. While not quite a 9/11, the Boston Marathon Bombers were one of the worst acts of domestic terrorism in a decade. So, Obama 1.0–drone strike would be cool.

After Rand Paul’s filibuster, Holder sent a revised position of the United States.

“Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on U.S. soil?” Holder’s letter reads. “The answer to that is no.”

Was Tsarnaeve “in combat”? Holder’s answer, which satisfied Rand Paul, is not so satisfying in this case. Holder’s answer leaves open a lot of wiggle room.

Glenn Greenwald already considered whether Christopher Dorner should have been killed by a drone strike.

Here’s my question: if the surveillance drones detect his location, should the lives of law enforcement agents be risked, along with other civilians, in an attempt to apprehend this highly-trained warrior? Why shouldn’t an armed drone instead be immediately dispatched once his location is ascertained and simply kill him?

For those of you who believe it’s possible to know someone’s guilt without a trial, there is very little doubt about his guilt. Nobody has contested the authenticity of the confession posted in his name, nor the threats of further killing. He admitted and justified the killings on his Facebook entry.

For those of you who believe there is a clear definition of “terrorism”, Dorner meets it easily. LAPD chief Charlie Beck today said that Dorner was engaging in “domestic terrorism”. That’s because he has not only threatened to kill random LAPD officers but also their children and family members in order to terrorize the department into publicly apologizing to him. He vowed to wage what he called “unconventional and asymmetrical warfare” in pursuit of his goal. As intended, the entire community is in terror. If that’s not “domestic terrorism” under the conventional defintion, then nothing is.

Now obviously, if attempts are made to apprehend Dorner and he uses lethal force to resist, then shooting or killing him would be justified, uncontroversially so. The FBI just killed a kidnapper in Alabama when he began shooting at the agents who tried to arrest him, and nobody objected. Law enforcement agents always have the right to defend themselves against people they’re trying to arrest if lethal force is used to resist. That’s an easy case, and not what I’m asking.

Instead, suppose the LAPD locates Dorner in a cabin in a remote area of the California wilderness, just sitting alone watching television. Why should they possibly risk the lives of police officers to apprehend him? Why would anyone care if this terrorist’s rights are protected? What’s the argument for not simply killing him the moment he’s located? Given that everyone seems certain of his guilt, that he’s threatened further killings of innocents, that he declared himself at “war”, and that the risk from capturing him would be high, what danger is created by simply shooting a Hellfire missile wherever he’s found?

We already know at an aerial vehicle took thermal images of Tsarnaev.

 

It wouldn’t be too hard to drop a hellfire missile onto that heat signature.