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Dennis Henigan of Brady Campaign Agrees with me on US v. Skoien at HuffPo

July 16th, 2010

I previously blogged about the en banc opinion from United States v. Skoien, noting that it illustrates the failure of the Heller and McDonald Court to provide the lower courts with any guidance as to what kinds of gun control laws are constitutional.

Unsurprisingly, Dennis Henigan of the Brady Campaign agrees with me.

He writes at the Huffington Post:

It is easy to understand why libertarian bloggers like Josh Blackman are upset about the Skoienruling, which he cites as evidence of the “epic failure” of both Heller and McDonald to truly establish a constitutional basis for the gutting of America’s gun laws. Blackman frets that Judge Easterbrook’s opinion in Skoien sets forth “a framework that will likely be relied upon by most courts.” If he’s right, and I think he is, strong gun control laws have little to fear from the Second Amendment.

While I think Dennis gets the thrust of Skoien about right, I think his conclusion is not necessarily correct.

Dennis writes:

Significantly, Judge Easterbrook’s opinion reads the Heller language not as created a “comprehensive code” of permissible regulations, but rather as standing for the broader proposition that it remains proper to bar gun possession by some categories of persons, “leaving it to the people’s elected representatives the filling in of details.”

I agree this is how Easterbrook characterized Heller. Unfortunately, I think this reading is irreconcilable with the nature of the right described in Heller. Easterbrook fashions a balancing test to consider gun control laws that only requires a “substantial relation”–a burden the Court, and not the government, proves by producing ample empirical research. This stands in direct contrast with McDonald’s holding that balancing tests are inappropriate for this fundamental right.  The plurality opinion in McDonald categorically rejected any balancing test.

Municipal respondents assert that, although most stateconstitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicialinterest balancing,

Although the Supreme Court took major strides towards providing meaningful protection of the right to keep and bear arms, it will be up to the lower courts, and soon enough the Supreme Court, to vindicate this fundamental right in the future.

Instant Analysis: United States v. Skoien

July 13th, 2010

Update: For more on Skoien, and the Court’s epic failure in Heller and McDonald, check out this post.

The 7th Circuit sitting issued a significant en banc opinion in United States v. Skoien considering the prohibition on the possession of guns by persons previously convicted of domestic violence misdemeanor. The 7th Circuit Panel, by Judge Sykes, previously suggested  that the categorical prohibition may have violated the Second Amendment. Writing for the En Banc court, Judge Easterbrook held that the ban does not violate the Constitution, under Heller and McDonald.

This is a very significant case that should have rippling implications, and may wind its way up to SCOTUS in the near future.

Update (8/5/10): I apologize but WordPress ate this really lengthy post.

7th Circuit Creates Circuit Split: Non-Citizens are “The People” Under the Second Amendment

August 20th, 2015

Writing for the 7th Circuit, Judge Wood parted company with the 4th, 5th, 8th, and 10th Circuits, and found that the Second Amendment protects non-citizens, as they are part of “the people.”

We first tackle the question whether the Second Amendment protects unauthorized non-U.S. citizens within our borders. The Amendment provides that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. The Supreme Court has confirmed that this language confers an “individual right to possess and carry weapons.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). But neither Heller nor any other Supreme Court decision has addressed the issue whether unauthorized noncitizens (or noncitizens at all) are among “the people” on whom the Amendment bestows this individual right.

Wood contends that the Framers consciously chose the phrase “people” over “citizen.”

Other language in Heller supports the opposite result: that all people, including non-U.S. citizens, whether or not they are authorized to be in the country, enjoy at least some rights under the Second Amendment. (Although it is hard to find good data about the percentage of noncitizens in the United States before 1820, see BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES 1789-1945: A SUPPLEMENT TO THE STATISTICAL ABSTRACT OF THE UNITED STATES (1949), available at http://www2.census.gov/prod2/statcomp/documents/ HistoricalStatisticsoftheUnitedStates1789-1945.pdf, immigra- tion in the late 18th century was a common phenomenon. And such provisions as Article I, section 2, paragraph 2, which limits membership in the House of Representatives to persons who have been “seven Years a Citizen,” and Article II, section 1, paragraph 4, which requires the President to be “a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution,” show that the drafters of the Constitution used the word “citizen” when they wanted to do so.)

Though, who was a citizen of the United States in 1787? See my article, Original Citizenship. (I promise, it has NOTHING to do with birthright citizenship).

Further, the 2nd Amendment should be read similarly to the 4th Amendment, where “the people” also refers to non-citizens.

Heller noted the similarities between the Second Amendment and the First and Fourth Amendments, imply- ing that the phrase “the people” (which occurs in all three) has the same meaning in all three provisions. See Heller, 554 U.S. at 592 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”); id. at 580 (noting that “the people” is “a term of art employed in select parts of the Con- stitution,” including the First, Second, Fourth, Ninth, and Tenth Amendments) (quoting United States v. Verdugo- Urquidez, 494 U.S. 259, 265 (1990)). An interpretation of the Second Amendment as consistent with the other amend- ments passed as part of the Bill of Rights has the advantage of treating identical phrasing in the same way and respect- ing the fact that the first ten amendments were adopted as a package.

The government contends that the noncitizen cannot be part of “the people” because he hasn’t accepted the basic obligation of U.S. society:

First, it contends that unauthorized noncitizens categorically have not accepted the basic obligations of membership in U.S. so- ciety and thus cannot be considered as part of “the people.”

The court rejected this reasoning, explaining that the Second Amendment is not a second-class right, and noncitizens can have this attachment:

In the post-Heller world, where it is now clear that the Second Amendment right to bear arms is no second-class entitlement, we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded. No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights.

Judge Flaum concurred, and would not have reached this issue. This opinion does create a circuit split, and under circuit rules, no judge voted for en banc.

Because this holding creates a split between our circuit and the Fourth, Fifth, and Eighth Circuits, ante at 7, this opinion has been circu- lated to all active judges pursuant to Circuit Rule 40(e). No judge voted to hear the case en banc.

However, the court found the conviction under 18 U.S.C. 922(g)(5) to be permissible under Skoien intermediate scrutiny. And because Congress has an interest in keeping hands out of non-citizens, the conviction was upheld.

Congress’s objective in passing § 922(g) was “to keep guns out of the hands of presumptively risky people” and to “suppress[] armed violence.” Yancey, 621 F.3d at 683–84 (cit- ing S. REP. NO. 90-1501, at 22 (1968)); see also Huitron-Guizar, 678 F.3d at 1169–70 (§ 922(g)’s purposes are to assist law en- forcement in combating crime and to keep weapons away from those deemed dangerous or irresponsible). One such group includes aliens “who … [are] illegally or unlawfully in the United States.” 18 U.S.C. § 922(g)(5)(A). The government argues that the ban on the possession of firearms by this group of people is substantially related to the statute’s gen- eral objectives because such persons are able purposefully to evade detection by law enforcement. We agree with this po- sition: unauthorized noncitizens often live “largely outside the formal system of registration, employment, and identifi- cation, [and] are harder to trace and more likely to assume a false identity.” Huitron-Guizar, 678 F.3d at 1170. Persons with a strong incentive to use false identification papers will be more difficult to keep tabs on than the general population. (Section 922(g)(5)(B)’s prohibition on firearms possession by most aliens who are lawfully present but who hold only nonimmigrant visas reflects a similar concern. Holders of nonimmigrant visas sometimes have no address associated with them, making them equally difficult to track.)

Although showing some teeth for scrutiny, the court rejects the government’s positions that non-citizens are more likely to commit gun-related crimes.

The government also argues that § 922(g)(5) reflects the likelihood that unauthorized immigrants are more likely to commit future gun-related crimes than persons in the gen- eral population. It offers no data to support that assertion, however, and we have our doubts about its accuracy. The government extrapolates from the fact that persons who are here illegally have “show[n] a willingness to defy our law” to the conclusion that they are likely to abuse guns. This may go too far: the link to firearms is unclear, and unlawful pres- ence in the country is not, without more, a crime. See Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (“As a general rule, it is not a crime for a removable alien to remain present in the United States.”). While it is a misdemeanor to enter the country improperly, see 8 U.S.C. § 1325(a), many unau- thorized immigrants—such as Meza-Rodriguez himself— were too young to form the requisite intent to violate this statute when they were originally brought to the United States. Even if this future-oriented rationale lacks support, however, the government has an strong interest in prevent- ing people who already have disrespected the law (includ- ing, in addition to aliens unlawfully in the country, felons, §922(g)(1), fugitives, §922(g)(2), and those convicted of misdemeanor crimes of domestic violence, § 922(g)(9)) from possessing guns.

Will the government seek certiorari here? It’s a close call. They won on the underlying issue, but lost on the question of the applicability of the 2nd Amendment. Such a ruling opens up other possible 2nd Amendment challenges by resident aliens who cannot bear arms. This could be the first time the federal government has petitioned for cert on a 2nd Amendment case since Heller itself!

Judge Easterbrook Dares The Justices On The 2nd Amendment

April 29th, 2015

Judge Easterbrook dropped the ball in his opinion upholding the City of Highland Park’s ban on so-called “assault weapons.” He read Heller and McDonald so narrowly as to disregard them, and at the end dared the Justices to tell him that he is wrong.

Easterbrook’s main argument focuses on the “historical tradition.” The 2nd Amendment was ratified in 1791. Heller was decided in 2008. In the intervening two centuries, for all intents and purposes, there was no judicially enforced 2nd Amendment right in the federal courts. (I am putting aside how state courts interpreted state constitutional amendments). Take for example everyone’s favorite, the machine gun. Easterbrook notes that states did not regulate them until 1927, and the federal government did not tax them until 1934 with the National Firearms Act. (It was the violation of the latter statute that snared the defendant in United States v. Miller). So between 1934 and 2008, there was no meaningful limit on how the government could regulate arms. Consider a counterfactual. If Miller came out the other way, and the National Firearms Act was invalidated, machine guns very well would be in “common use.” (As a practical matter, machine guns are not very practical so this is unlikely).

But Easterbrook takes this in a different direction.

How weapons are sorted between private and military uses has changed over time. From the perspective of 2008, when Heller was decided, laws dating to the 1920s may seem to belong to a “historical tradition” of regulation. But they were enacted more than 130 years after the states ratified the Second Amendment. Why should regulations enacted 130 years after the Second Amendment’s adoption (and nearly 60 years after the Fourteenth’s) have more validity than those enacted another 90 years later?

What is the correct lineage for the history? The century between the ratification of the 2nd Amendment, or the century preceding Heller? Easterbrook asks why a law enacted in the 1930s should be any stronger than a law enacted in 2013 in terms of tradition. Easterbrook suggests that time does not create an “easement” across the Second Amendment.

Nothing in Heller suggests that a constitutional challenge to bans on private possession of machine guns brought during the 1930s, soon after their enactment, should have succeeded—that the passage of time creates an easement across the Second Amendment. See United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). If Highland Park’s ordinance stays on the books for a few years, that shouldn’t make it either more or less open to chal‐ lenge under the Second Amendment.

Easterbrook rejects the argument that you should look to how common a weapon is at the time of the litigation.

And relying on how common a weapon is at the time of litigation would be circular to boot. Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi‐automatic weapons with large‐capacity magazines are owned more commonly because, until recent‐ ly (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.

And what makes a weapon in “common” use?

Yet High‐ land Park concedes uncertainty whether the banned weap‐ ons are commonly owned; if they are (or were before it en‐ acted the ordinance), then they are not unusual. The record shows that perhaps 9% of the nation’s firearms owners have assault weapons, but what line separates “common” from “uncommon” ownership is something the Court did not say.

And what makes a weapon “dangerous”? Not how often it is used for murder, but how dangerous it is to other kinds of weapons.

The large fraction of murders committed by handguns may reflect the fact that they are much more numerous than assault weapons. What should matter to the “danger” question is how deadly a single weapon of one kind is compared with a single weapon of a different kind.

As he did in Skoien, Easterbrook seeks to read Heller as narrowly as possible.

The problems that would be created by treating such empirical issues as for the judiciary rather than the legisla‐ ture—and the possibility that different judges might reach dramatically different conclusions about relative risks and their constitutional significance—illustrate why courts should not read Heller like a statute rather than an explana‐ tion of the Court’s disposition. The language from Heller that we have quoted is precautionary: it warns against readings that go beyond the scope of Heller’s holding that “the Second Amendment creates individual rights, one of which is keep‐ ing operable handguns at home for self‐defense.” Skoien, 614 F.3d at 640.

Since Heller, as Easterbrook notes, the Court has been silent on the scope of the right. In the meantime, the lower courts have continued to read it as narrowly as possible.

Heller does not purport to define the full scope of the Second Amendment. The Court has not told us what other entitlements the Second Amendment creates or what kinds of gun regulations legislatures may enact. Instead the Court has alerted other judges, in Heller and again in McDonald, that the Second Amendment “does not imperil every law regulating firearms.” McDonald, 561 U.S. at 786 (plurality opinion); Heller, 554 U.S. at 626–27 & n.26. Cautionary lan‐ guage about what has been left open should not be read as if it were part of the Constitution or answered all possible questions. It is enough to say, as we did in Skoien, 614 F.3d at 641, that at least some categorical limits on the kinds of weapons that can be possessed are proper, and that they need not mirror restrictions that were on the books in 1791.

What about the standard of review? Here too the Court has been silent:

So far, however, the Jus‐ tices have declined to specify how much substantive review the Second Amendment requires. Two courts of appeals have applied a version of “intermediate scrutiny” and sus‐ tained limits on assault weapons and large‐capacity maga‐ zines. See Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (a law materially identical to Highland Park’s is valid); Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (a ban on magazines holding more than ten rounds is valid).

Rather than scrutiny, Easterbrook would simply look to weapons that were in common use at the time of the ratification (hello muskets) or weapons useful to the militia (Miller).

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law‐abiding citizens retain adequate means of self‐defense.

This is not the holding of Heller. A handgun and an AR-15 would be of equal use for self defense, or for that matter in the militia. But as framed, Easterbrook can effectively limit Heller to its holding about handguns, and nothing else.

Remarkably, Easterbrook ties the “militia” prong not only to what weapons are usable in the militia, but limits it to what the state determines should be allowed.

Some of the weapons prohibited by the ordinance are commonly used for military and police functions; they there‐ fore bear a relation to the preservation and effectiveness of state militias. But states, which are in charge of militias, should be allowed to decide when civilians can possess mili‐ tary‐grade firearms, so as to have them available when the militia is called to duty. (Recall that this is how Heller under‐ stood Miller.)

This circularity makes no sense. Isn’t the question whether the state can regulate the weapon? How could it possibly be that the regulation is justified because the state can regulate it?

What about self defense? As he must, Easterbrook concedes that an AR-15 is “beneficial” for self defense.

True enough, assault weapons can be beneficial for self‐ defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers. Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.

Easterbrook counters, with no evidence that “Assault weapons” are the weapons of choice for “Mass Shootings!!!!!”

But assault weapons with large‐capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate. Why else are they the weapons of choice in mass shootings? A ban on assault weapons and large‐capacity magazines might not prevent shootings in Highland Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs.

This is false. This report compiled by the Connecticut government finds that the overwhelming majority of mass shootings involved handguns, not assualt weapons. (H/T Will Scharf)

In any event, this flips the question. Weren’t we just talking about self defense. Why are now talking about how these guns could be used in mass shootings?

Easterbrook reduces the scrutiny to borderline rational basis–even if the ban doesn’t eliminate a problem, it may make those problems less dangerous, or even may make people feel safer!

A ban on assault weapons won’t eliminate gun violence in Highland Park, but it may reduce the overall dangerousness of crime that does occur. … If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety. Mass shootings are rare, but they are highly salient, and people tend to overestimate the likelihood of salient events. See George F. Loewenstein, Christopher K. Hsee, Elke U. Weber & Ned Welch, Risk as Feelings, 127 Psychological Bulletin 267, 275–76 (2001); Eric J. Johnson, John Hershey, Jacqueline Meszaros & Howard Kunreuther, Framing, Probability Distortions, and Insurance Decisions, 7 J. Risk & Uncertainty 35 (1993). If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.

Over-reaction to mass shootings? If only someone wrote an article about that…

After offering a heap of evidence to support the state, Easterbrook says what pervades his entire opinion–let the democratic process define the counters of this enumerated right.

Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self‐defense is through the political process and scholarly debate, not by parsing ambigu‐ ous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Con‐ stitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legisla‐ tive process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).

Easterbrook repeats a canard advanced in McDonald v. Chicago–that constitutional rights should mean different things in different places. Let federalism serve as the laboratories of democracy!

Another constitutional principle is relevant: the Constitu‐ tion establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local gov‐ ernments, but it does not foreclose all possibility of experi‐ mentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim.

Nonsense. The laboratories of democracy Justice Brandeis wrote of refers to adding constitutional rights, not subtracting them. The Heller majority did reject Justice Breyer’s argument that the “urban” D.C. environment changed the constitutional calculus. Federalism does not work here.

Easterbrook is borderline-contemptuous of Heller, and tries as hard as he can to minimize it to a nullity. And he even dares the Justices to do tell him he’s wrong:

Whether those limits should be extended is in the end a question for the Justices. Given our understanding of existing limits, the judgment is affirmed.

He was reversed before in the case that became McDonald v. Chicago. He should be reversed again.

Beyond constitutional law, Judge Easterbrook made a number of fundamental mistakes about firearms. My friend Will Scharf offers a helpful list:

(1) Page 4: “The AK‐47 and AR‐15 (M16) rifles in military use also are submachine guns, though civilian versions are re‐ stricted to semi‐automatic fire.”

No they’re not; they’re assault rifles.  Submachine guns fire pistol calibre cartridges by definition.  The AK and AR fire 7.62 and 5.56 mm rifle cartridges, respectively.

(2) Passim: Machine guns are not “illegal.”  He keeps referring to them as illegal throughout the opinion.  That’s just a bad misstatement of the law.  They’re illegal if you don’t have a federally-issued NFA license; with an NFA registration, they’re legal.  Calling them “federally-regulated” would have been more accurate.

(3) Page 6: Easterbrook seems blissfully unaware that you can buy large cap magazines for handguns.

(4) Page 6: “We also know that assault weapons gen‐ erally are chambered for small rounds (compared with a large‐caliber handgun or rifle), which emerge from the barrel with less momentum and are lethal only at (relatively) short range.”  Is Easterbrook saying that a 5.56 from an AR emerges from the barrel with less momentum than a cartridge from a large-caliber handgun?  Out of a 5 inch barrel, a .45 ACP bullet is moving at about 1,000 fps.  An AR-15 will typically give you about 3,000 fps with a 5.56.  The much smaller 5.56 is much, much more powerful in terms of kinetic energy and is lethal at a significantly longer range than the handgun bullet.

(5) Page 6: “This suggests that [assault weapons] are less dangerous per bullet—but they can fire more bullets.”  Page 9: “assault weapons can be beneficial for self‐defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers.”

He doesn’t seem to understand that a 5.56mm round from a rifle cannot be compared to, for example, a 9mm round from a pistol—the ballistic characteristics of the two are just wholly different.  The 5.56, while technically smaller, is far more powerful and lethal.
(6) Page 9: “Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.”  The “pistols James Bond preferred” were little Walther PPK/Ss, chambered in .380 ACP at most.  That’s a tiny cartridge.  Easterbrook making them out to be big and scary is absurd.  Just look at ’em!  They’re little and sleek.
(7) Page 9: “Why else are they the weapons of choice in mass shootings?” This isn’t true.  Most mass shootings involve handguns, and few involve assault weapons.  And when they do involve assault weapons, they typically also involve handguns.  I count 33 out of 49 using handguns and not what Easterbrook would call an assault weapon here: http://www.cga.ct.gov/2013/rpt/2013-R-0057.htm
(8) Page 11: “If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.”  WHAT?!?  Now he’s saying/implying that a ban on semi-automatic guns would be valid?  That’s far, far beyond the assault weapon ban at issue.

 

 

West Virginia Files Motion to Dismiss in Obamacare Administrative Fix Case

November 18th, 2014

I previously blogged (here and here) about West Virginia’s suit, challenging the legality of the Obamacare Administrative Fix, whereby the administration unilaterally grandfathered plans that were void under federal law, and shifted to the states the burden of deciding whether or not those plans should be offered.

To recap, West Virginia pre-emptively filed a motion for summary judgment. The government responded by filing a motion to dismiss, arguing that there is no standing. Summary judgment was stayed pending resolution of MTD. Now WV has filed its opposition to the motion to dismiss. If WV survives the MTD, they move onto summary judgment, and the government will have to defend on the merits the legality of the so-called “administrative fix.”

In their motion, they focus on D.C. Circuit precedent concerning standing based on a commandeering argument (p. 20):

While the precise question whether a shift of political accountability from the Federal Government to the States amounts to impermissible commandeering is to be decided on the merits in each case, the D.C. Circuit has held based on these cases that a State always has standing to challenge a federal statute or regulation that the State can colorably claim violates its Tenth Amendment rights. Most relevant is the D.C. Circuit’s 2002 decision in Lomont v. O’Neill. There, a Bureau of Alcohol, Tobacco and Firearms (“ATF”) regulation provided that a person seeking permission to transfer a firearm had to obtain a certificate from “the local chief of police, sheriff of the county, head of the State police, State or local district attorney or prosecutor, or such other person whose certificate may in a particular case be acceptable to the Director” of the ATF. 258 F.3d at 12 (quoting relevant federal regulations). Two local chiefs of police challenged this regulation, arguing that it violated the Tenth Amendment. The D.C. Circuit expressly found first that the police chiefs had standing in light of their claimed Tenth Amendment injury, noting that no Justice of the Supreme Court had even “questioned” standing in Printz. Id. at 13. Then, the court rejected the claim on the merits based on its conclusion that the law merely permitted “state or local governments [to] voluntarily decide to assist in  administering federal laws.” Id. at 14. Put another way, even though the D.C. Circuit did not find a Tenth Amendment violation because the police chiefs only had a voluntary and minor role in the federal program, it easily found that the chiefs were allowed to challenge the program in federal court. Accord Fraternal Order of Police v. United States, 173 F.3d 898, 904-07 (D.C. Cir. 1999); Gillespie v. City of Indianapolis, 185 F.3d 693, 703-04 (7th Cir. 1999) (abrogated on other grounds by United States v. Skoien, 587 F.3d 803, 807 (7th Cir. 2009)).

Here is the key passage from Lomont:

This much may follow from Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), in which the Court reached the merits of a Tenth Amendment challenge to the Brady Act in cases brought by county sheriffs. Neither the majority opinion nor the opinions of the five Justices who wrote separately questioned the sheriffs’ standing to sue. The government believes that “chief law enforcement officers have standing only if they are authorized by state law to act on behalf of the State.” Brief for Appellees at 34 n.9. But as the government recognizes, to impose that prerequisite would be to depart from our decision 14*14 in the FOP case, and perhaps the Supreme Court’s disposition of Printz.

The brief notes that HHS does not event address Lomont:

In its Motion to Dismiss, HHS offers a scattershot of arguments in response to this basis for West Virginia’s standing, see MTD at 13-29, but none has merit. Several of the arguments are foreclosed by Lomont, which HHS does not even attempt to address. Indeed, HHS fails to cite a single case holding that a State alleging a violation of the anti-commandeering doctrine lacks the standing to bring its lawsuit at all. Its remaining arguments are directly contrary to Supreme Court precedent or rely on mischaracterizations of West Virginia’s alleged injury.

Once the plaintiffs have standing on the commandeering claim, it doesn’t even matter if they win on the merits with respect to commandeering. They can then win on the merits concerning the APA claim. This argument has gotten really sophisticated. I look forward to seeing HHS’s reply.