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Wednesday, February 21, 2018

Supreme Court Declines to Hear Second Amendment Challenge to California Gun Restrictions

Various news outlets, including the LA Times, report that the United States Supreme Court recently declined to hear a case challenging California's 10-day waiting period for purchasing firearms. The New York Times reports on the denial of certiorari here. The case, Silvester v. Becerra, joins a long line of Second Amendment cases that the Supreme Court has refused to hear. From the LA Times:

In 2008 and 2010, the high court struck down ordinances in Washington, D.C., and Chicago that prohibited the private possession of handguns as violations of 2nd Amendment. Americans have a right to have guns at home for self-defense, the court said in 5-4 decisions.

But since then, the justices have turned down gun rights advocates who have sued to challenge gun regulations based on the 2nd Amendment.

"There are simply not four justices who are eager to jump back into this fray," said UCLA law professor Adam Winkler, an expert on gun rights. It takes the votes of at least four justices to grant review of a case. "The California case highlights that the gun debate will play out in the legislatures and in Congress."

Most of the reports on this case fail to note who brought the Second Amendment challenge. The case was brought by two California gun owners (and two nonprofits) who argued that the 10-day waiting period was an unconstitutional burden on their right to bear arms. The fact that the petitioners were gun owners served to strengthen their argument that a 10-day period was unnecessary for running a background check (the petitioners had already passed the check on obtaining their other firearms) and for petitioners to "cool down" before purchasing firearms on a violent impulse (the petitioners already owned guns, so if they had violent intentions, they would already be capable of acting on them). Adam Winkler (the law professor quoted in the LA Times article above) raises this point, among others in an informative Twitter thread which begins with the tweet below:


Winkler's main point in the thread is that the Court is unwilling to take on what may be an easy Second Amendment case. Rather than addressing broad questions of carrying firearms in public, the case was limited to a narrow set of circumstances: a 10-day waiting period on people who already owned guns. Winkler recognizes, however, that the case may not be as strong as the petitioners though, as the fact that they currently own guns means that their ability to defend themselves should not be significantly infringed by a delay in purchasing additional guns.

This case has been drawing attention because it was decided very soon after the recent school shooting in Parkland, Florida, and also because Justice Clarence Thomas authored a lengthy dissent to the Court's decision not to hear the case. Thomas attacks the Ninth Circuit for failing to properly apply intermediate scrutiny to the 10-day waiting period, and argues that the Ninth Circuit upheld the constitutionality of the restriction based on speculation as to the law's effects and assumptions that the law would not significantly burden firearm purchasers. Thomas criticizes the Court's decision not to hear the case as the latest in a long line of failures to take up Second Amendment cases, arguing that "If a lower court treated another right so cavalierly, I have little doubt that this court would intervene." Those familiar with the Court's Fourth Amendment jurisprudence got a chuckle out of this proclamation.

I have doubts about the claims Thomas makes in his dissent, largely for Winkler's point that I highlighted above -- that these particular petitioners already own firearms, and therefore can defend themselves with the guns they already have. The Court, in District of Columbia v. Heller, held that the right of self-defense is "central" to the Second Amendment's protections, and the petitioners would face an uphill battle in claiming that this right was significantly burdened. Perhaps this is why no other conservative justices joined in Thomas's dissent.

As a final note, Thomas cites to Footnote 27 of the Heller opinion to support his claim that the appropriate level of scrutiny for laws restricting the Second Amendment must be higher than "rational basis" scrutiny. Footnote 27 of Heller states:
Justice BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 2850-2851. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 602, 128 S.Ct. 2146, 2153-2154, 2008 WL 2329768, *6-7, 170 L.Ed.2d 975 (2008). In those cases, "rational basis" is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) ("There may be narrower scope for operation of the presumption of constitutionality [i.e.,narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments ..."). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.
Because the Court in Heller determined that the District of Columbia's firearm restriction would not prevail under any standard of scrutiny, this footnote is dicta, although Thomas cites it as precedent in support of his claim that a level of review higher than rational-basis is required. I have not previously evaluated this footnote at length, although I did locate this commentary by Josh Blackman expressing confusing over the footnote and whether it is consistent with the Court's jurisprudence.

The footnote does not seem correct to me, as it would wreak havoc on equal protection law if it were the law. The Fourteenth Amendment guarantees equal protection under the law, but many laws apply to certain people or groups, and unless these distinctions are based on "protected classes" of individuals, the distinctions are generally upheld as constitutional as long as there is a rational basis for the different treatment. (See, e.g. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464-465 (1981)). The equal protection guarantee is in a constitutional amendment (albeit not in the "first ten"), but the logic of Footnote 27 would require any law that treated any group differently to be subject to a level of scrutiny beyond rational basis. This could result in a crippling level of challenges against legislation, and would be contrary to extensive precedent.

Silvester joins the ranks of the numerous other Second Amendment challenges the Supreme Court has refused to hear. It remains unclear when the Court will choose to clarify the scope of Second Amendment protections, and despite a great deal of noisy debate on gun control, it is far from certain whether further gun regulations will be implemented on the state or federal level as mass shootings continue to occur.

Tuesday, January 23, 2018

The Second Amendment and Legislative "Protection" of Constitutional Rights

This column in yesterday's Des Moines Register by the Editorial Board caught my eye. It begins:
Is state Rep. Chip Baltimore clairvoyant?
The Boone Republican was arrested last week, charged with operating a motor vehicle while intoxicated and possession of a firearm while under the influence of alcohol. Interestingly, less than 10 months ago, he voted to support legislation reducing penalties for toting a gun while drunk. Lucky for him, that bill was signed into law.
According to a police report, Baltimore was stopped by an Ames officer early Friday morning after authorities received reports of a reckless driver traveling northbound on Interstate Highway 35. With his slurred speech and bloodshot eyes, he told the officer he was on his way home after attending meetings in Des Moines, the report said.
. . .  
Last legislative session, Baltimore was among the lawmakers who supported the Iowa Omnibus Gun Law.

Before this law went into effect, carrying a firearm while intoxicated was an aggravated misdemeanor, punishable by up to two years in prison. An OWI conviction provided clear grounds for revocation of a permit to carry a weapon.

The new law, which went into effect July 1, cuts in half potential jail time and allows drunken drivers the ability to keep their permits to carry handguns.

At the time, one Iowa sheriff questioned the change, baffled that state legislators recognized the danger of operating a vehicle while drunk but not carrying a lethal weapon while intoxicated.


“We know alcohol blurs judgment,” said Black Hawk County Sheriff Tony Thompson. “I’m not sure what the driving force was behind watering that down.”

The Register's earlier article reporting Baltimore's arrest is here. Notably, Baltimore was stopped when an officer observed him driving at 55 mph in a 70 mph zone entering a 65 mph zone. For those interested in DUI-related trivia (who isn't?), the National Highway Traffic Safety Administration states that driving at 10 miles or more below the speed limit is an indicator of possible impaired driving. The same is not true of speeding.
 
This story is my quirky introduction for a much broader discussion of misleading rhetoric regarding the "protection" of constitutional rights through legislation. For those only interested in the adventures and apparent foresight of Chip Baltimore (and accompanying DUI trivia), stop reading now!

Wednesday, January 17, 2018

Don't Operate Drones While Drunk in New Jersey, and Other Crimes

Through this angrily-titled Reason article, "Good Riddance to Chris Christie," I learned about a recent law in New Jersey that creates several new drone-related crimes. The text of S3370, which Governor Christie signed into law on Monday, is available here.

The bill creates several new drone-related crimes. One of the more widely-reported restrictions is a ban on the operation of drones while under the influence of alcohol, narcotics, hallucinogens, "habit-producing" drugs, or with a blood alcohol level of 0.08% or more. This restriction has led to the publication of several articles that whimsically announce the restriction on "drunk droning" or "drinking and droning." I'm not sure if I'm ready to approve of these publications use of "drone" as a verb, as operating drones does not necessarily involve speaking at length in a boring manner, but the restriction is worth noting.

It's also worth mentioning that federal regulations already place even stricter alcohol-related restrictions on the commercial operation of drones. This concise explainer by Jonathan Rupprecht points out that commercial drone operators can't fly drones within eight hours of consuming alcohol or with a blood alcohol concentration of 0.04% or higher. Rupprecht also notes that hobbyist drone users that operate drones while intoxicated may run afoul of federal regulations if their activity is deemed to "threaten the safety of the national airspace system."

New Jersey bans more than the drunken operation of drones. The law also includes provisions prohibiting people from using drones while hunting, and from using drones to prevent people from hunting. The law also bans the operation of drones in "a manner that endangers the life or property of another," and prohibits people from using drones from conducting surveillance on correctional facilities or "endanger[ing] the safety or security" of these facilities by operating drones on their premises.

But wait, there's more!

The law creates an offense for drone users whose drones interfere with "first responders," (which include law enforcement officers, firefighter, ambulance operators, and others). California has attempted to pass similar legislation that would criminalize operating drones near fires, as this activity has reportedly hindered firefighting efforts. But these crimes have yet to become law in California due to Governor Jerry Brown's reluctance to expand California's bloated Penal Code. Governor Christie, however, appears to have no such qualms.

A final provision of note is a revision to the law governing the penalty of "parole supervision for life" that is imposed on certain sex offenders and those convicted of kidnapping pursuant to N.J.S.A. C.2C:43-6.4. The provision states that the parole supervision for life "may include reasonable conditions prohibiting or restricting the person's operation of an unmanned aircraft system in order to reduce the likelihood of a recurrence of criminal or delinquent behavior." While drones can (and occasionally have) been used to hover creepily outside of people's windows, this is a strangely specific provision to add to the various restrictions that sex offenders face.

I'm generally opposed to imposing restrictions on private drone users, as tortious or invasive behavior with drones could probably be prosecuted or litigated under more general existing laws. I do approve of legislative restrictions on government drone use, but New Jersey appears to have yet to impose such restrictions. The last attempt at doing so failed a year ago when Governor Christie failed to sign off on a bill that would have imposed a warrant restriction (with certain exceptions) on drone use by law enforcement agencies. Perhaps Governor Phil Murphy will act differently should a similar bill make its way through the legislature in the future.

Monday, December 25, 2017

Star Wars: The Last Jedi: The Review of the Shapiro Review

I watched Star Wars: The Last Jedi when it first opened. While there is a lot to digest, I enjoyed the movie overall. I've been meaning to watch it again, but in the meantime, I have been taking in the odd phenomenon of self-proclaimed Star Wars enthusiasts who often happen to be political conservatives attacking the film. With every negative review I read, the more I like The Last Jedi.

Which is why after all of the presents were unwrapped on Christmas morning, this tweet from Randy Barnett was a nice bonus gift:

I don't pay attention to Ben Shapiro because why should anyone? But Randy Barnett is a law professor and noted conservative voice who blogs at the excellent Volokh Conspiracy -- making me all the more sad to see him promoting what turns out to be repetitive, ill-conceived complaining about The Last Jedi.

For those of you who enjoy reading negative reviews of the movie like I do, I recommend reading Shapiro's review first, which you can find here. And because it is Christmas day, the presents have all been opened, and I still have a lot of leftover rage from some family ping pong games, my response to Shapiro's review is below the break. There are many spoilers, so don't read ahead if you want to avoid those.

It should be noted that Randy Barnett is a law professor and Ben Shapiro apparently went to Harvard Law, so that should be enough of a legal hook to let me post it on this law blog.

Saturday, December 23, 2017

Gavel News from Iowa

I'm in Iowa for the next several days visiting family for Christmas. This morning, this article in a local paper about an Iowa City gavel maker caught my eye:

It all started in the early 1990s when Iowa City letter carrier Chester Schulte attended one of his union meetings here.

“They can be kind of noisy at times,” he said with a grin, “and the president was trying to get their attention, but he didn’t have a gavel.” 
So Schulte, a lifelong woodworker hobbyist, headed to his shop, turned a proper gavel and gave it to his union leader. “It helped at future meetings,” he told me. 
Word of the gift spread, mostly through union associations in Iowa and beyond. Today, he figures he has made nearly 700 distinctive gavels over the years for groups and individuals nationwide who wanted a finely crafted tool for calling a meeting to order. 
. . .

Now at 70, Schulte has been retired for several years but is still making his exquisite gavels from native Iowa hardwoods. 
He recently stopped by Congressman Dave Loebsack’s office in Iowa City and dropped off a specially crafted oversized gavel with the idea it might be used in Washington, D.C., at some point to call the U.S. House of Representatives to order. 
“It was huge,” Gloria Stutts, the woodworker’s wife, reported. “Formidable.” 
Chester declared his ultimate dream would be to provide a nice gavel for the U.S. Supreme Court.
Just about every courtroom I have appeared in has a gavel, but I have rarely seen any judge use them. I am not aware if any of them are Schulte's creations, and the fact that Schulte chooses not to sign or initial his gavels means I may never know.

Tuesday, November 21, 2017

Thor: Ragnarok Does Not Exemplify Trial By Combat

Over at the ABA Journal, Adam Banner claims that Thor: Ragnarok is the "latest instance of trial by combat in popular culture." He writes (don't worry, no spoilers yet): 
First off, if you haven’t seen the new Thor film, I highly suggest it. It’s one of the best entries in the Marvel Cinematic Universe, and it contains one of the best scenes any fan could ask for: a battle between the God of Thunder and a giant, green rage monster. Without giving too much away, Thor is promised his freedom if he can best his captor’s “champion” in combat—it just so happens that champion is a super-angry Hulk. Trial by combat? Definitely.
I've seen Thor: Ragnarok twice (it's fantastic), and I've written a fair amount about trial by combat (see blog posts here, here, and here and a peer reviewed (!?) article that I coauthored with my former classmate, Raj Shah here). After reflecting on the history, basis, and characteristics of historic (and even Game-of-Thrones-style) trial by combat, the fight between Thor and Hulk in the movie cannot be fairly characterized as an example of trial by combat.

Banner (what a name for a guy writing about a fight that involves the Hulk) decides to write his article without spoilers, which allows him to advance his claim behind a fog of uncertainty that maybe there are other events in the movie that make the fight into a trial by combat scenario. I'll get into the nitty-gritty of the events leading up to the fight in the movie after the break, so I guess there are some minor spoiler alerts for those who didn't watch the trailers and put two and two together.

Wednesday, November 15, 2017

Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

Business Insider reports on a ridiculous exchange between Senator Patrick Leahy (D-VT), and Fifth Circuit Court of Appeals Judicial Nominee, Texas Supreme Court Justice Don Willett, a video of which is below:



Back when Justice Willet was being considered as a potential Supreme Court nominee, I wrote this post highlighting questions that could be asked at Willett's confirmation hearing based on his prior tweets. From that post, here is one of my potential questions (and the accompanying tweet):

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?



In a fascinating display of either: (1) failing to understand simple humor; or (2) extreme partisan interpretation, Leahy lambasted Willet's tweet as an attack on gay marriage and the Supreme Court's decision legalizing gay marriage. From Business Insider:
"I don't think one would see that as praising the Supreme Court decisions," Leahy said of the tweet.
While I am happy that I was able to predict at least one of the tweets that would come up in Willett's confirmation hearing, Leahy taking the tweet in this direction made a farce of his line of questioning. Senators with concerns about Willett taking conservative stances on legal issues certainly have plenty to work with, but this exchange is just (to use some legal terminology) goofy.

All of this aside, I will assume without evidence that Senator Leahy got the idea to ask about that tweet by reading my blog, and I thank the good Senator for his attention to my work.