Cutting-Edge Scholarship on State Laws Against Shooting Fish With Guns

One of several reasons why I have not been writing as much here as I used to is that I have been investing my energy in a few other projects. One of them is my forthcoming article, Shooting Fish, which will be published in Volume 12 of the Kentucky Journal of Equine, Agriculture, & Natural Resources Law. Here is the abstract:

This article sets out to answer the question that’s on everyone’s mind: Is it legal to shoot fish with guns? This burning legal query has never had an exhaustive and obsessively-researched answer. Until now. 

In a fifty-state survey of laws that explicitly or incidentally restrict shooting fish, this article finds that every state has laws or regulations that either explicitly or effectively ban shooting fish — with some narrow exceptions. This article simultaneously serves as an invaluable resource to heavily-armed anglers throughout the country, and illuminates a facet of the complex system of legal rules governing fishing in all states. The regrettable lack of academic discussion of shooting fish and state laws on the subject belies the complex legal, environmental, and constitutional implications of these laws. 

This article explores those implications. States’ statutory and regulatory schemes range from explicitly defining fishing methods, to creating long lists of prohibited fishing techniques (think bans on slurp guns, slingbows, fish pews, tree-topping devices, giant powder, and fishberries, to name just a few). Many states employ location- and species-specific laws and regulations — often targeting invasive fish species by permitting wider ranges of methods for taking them. This article also addresses the environmental implications of fish-shooting laws, and why these laws exist. It also notes historic attempts to loosen shooting restrictions — attempts frequently inspired by the proliferation of high-flying, fast-multiplying Asian carp. 

Not to disappoint mainstream enthusiasts of legal scholarship, the article closes with a discussion of the state and federal constitutional implications of fish-shooting restrictions. While bans on shooting fish do not raise significant Second Amendment concerns, certain states’ prohibitions on firearm possession incidental to shooting fish do. This article also acknowledges state constitutional provisions that set forth the right to hunt and fish, but notes that these provisions are unlikely to give rise to successful legal challenges by fish-shooting enthusiasts.

As always, comments on this draft are welcome. Those who are interested in learning of the extensive and creative variety of methods that people have devised for killing and taking fish will find this article particularly helpful.

Illinois Supreme Court Rejects First Amendment Challenge to "Revenge Porn" Restriction

In Illinois v. Austin, the Illinois Supreme Court addressed a challenge to the State's prohibition on the non-consensual dissemination of private sexual images (also known as "revenge porn"). The law at issue, 720 ILCS 5/11-23.5(b), states:

A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.

The Court's opinion has resulted in criticism from some commentators, and praise from others. While some of the criticism is correct, the Austin Court's recognition that the Illinois law targeted lesser-protected speech and therefore warranted an intermediate level of scrutiny appears to be a correct basis for its conclusion. Critics of the Austin opinion have failed to fully recognize this aspect of the decision by either mischaracterizing it or downplaying its basis in Supreme Court precedent. 

I. Summary of the Opinion

In Austin, the defendant and her fiancé shared an iCloud account, which meant that all text messages that the fiancé sent or received were visible on the defendant's iPad. ¶3. The fiancé and a neighbor exchanged several text messages, some of which included nude photographs of the neighbor. ¶4. The defendant and her fiancé then cancelled their wedding plans and broke up. The fiancé began telling people that the relationship ended because the defendant "was crazy and no longer cooked or did household chores." ¶5. The defendant, in turn, wrote a letter that included several nude photos of the neighbor and sent this letter to the fiancé's cousin. ¶6. The fiancé called the police, who interviewed the neighbor. The neighbor told them that while she was aware that the fiance and the defendant shared an iCloud account, she thought the account had been deactivated when she sent the nude photos and had intended that only the fiancé see the photos. ¶7.

The defendant was charged with one count of non consensual dissemination of private sexual images and moved to dismiss the charge, arguing that the statute was a content-based restriction on speech that violated the First Amendment. The lower court agreed with the defendant and held that the law was unconstitutional on its face. ¶10.

The Illinois Supreme Court disagreed with the lower court and held that the statute did not violate the First Amendment. The Court first stated that it rejected the State's request that it recognize that the dissemination of private sexual images as an unprotected category of speech.  ¶¶33-36. While some categories of speech, such as incitement, obscenity, defamation, and fighting words are recognized as falling outside of the category of protected speech, the Court stated that it would not add the dissemination of private sexual images to this list absent the Supreme Court addressing the issue.

While the Court refused to recognize the speech as entirely unprotected, it ended up reaching the significant conclusion that the dissemination of private sexual images was subject to a lesser amount of protection than other speech. The Court recognized that content-based restrictions on speech typically require court's to apply strict scrutiny to the restriction, which, in First Amendment cases, almost always results in the restriction being overturned. Here, however, the Court held that only an intermediate level of scrutiny was required, which meant that the law needed to serve "an important or substantial government interest unrelated to the suppression of free speech" and that the law "not burden substantially more speech than necessary to further that interest."  ¶59.

The Court advanced two justifications for its use of intermediate scrutiny. First, the Court claimed that the restriction was not a content-based restriction. While acknowledging that the law only applied to the dissemination of sexual images, the Court noted that the dissemination of this content was only unlawful if it was done so in a situation where the person sharing the content obtains the image under circumstances where a reasonable person knows or should know that the image is to remain private and that the person has not consented to the image's dissemination. The Court therefore concluded that the illegality of the dissemination was not premised on the content of the image, but rather on the manner of the dissemination. The law was therefore a time, place, or manner restriction, which warrants only intermediate scrutiny.  ¶49.

Separately, the Court noted that the law only restricted the dissemination of information that is of purely private concern.  The Austin Court noted that the Supreme Court in Snyder v. Phelps and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. has recognized that restrictions on speech involving "purely private" matters does not threaten "free and robuse debate of public issues" and is less likely to "pose the risk of 'a reaction of self-censorship' on matters of public import." ¶54. The Court concluded that the defendant's sharing of sexual images did not involve an issue of public concern as they were privately-sent sexual images that did not "relate to any broad issue of interest to society at large." ¶56. The restriction on the dissemination of these issues therefore warranted intermediate, rather than strict, scrutiny.

The Court concluded that the restriction survived intermediate scrutiny, noting that it served a substantial government interest of protecting individual privacy rights and acknowledging that the dissemination of private sexual images causes "unique and significant harm to victims in several respects." ¶66. The Court then concluded that the restriction was tailored narrowly enough to survive a First Amendment challenge, as it defined what body parts or activities needed to be included in the prohibited images, required that the person in the image be identifiable from the image or information displayed with the image, required that the image be obtained under circumstances where a reasonable person would know or understand that it was to remain private, required that the person disseminating the image know that there was no consent to share the image, and also required that the person disseminating the images do so intentionally. ¶¶79-83. The law also included exemptions to the prohibition that included the dissemination of images for purposes of reporting a crime or for a "lawful public purpose."

II. The Court's First, Mistaken Rationale for Applying Intermediate Scrutiny

The Austin Court's first basis for concluding that the Illinois law was not subject to strict scrutiny was that it was a "time, place, or manner" restriction, rather than a content-based restriction on speech. The Court got to this conclusion by stating that the illegality of the dissemination of the sexual images is premised on the manner of how the images are shared. While sharing sexual images with the consent of the person pictured or in circumstances where the image was not expected to be private is permissible, doing so when there is no consent or where a reasonable person would recognize that the image was intended to remain private is prohibited. 

While this is correct, the fact remains that the illegality of sharing the sexual image is also premised on the content of the image. The law is a time, place, and manner restriction on speech, but it also only applies to certain content. Mark Bennett correctly notes that when restrictions have "both content-based and content-neutral elements," they are content-based restrictions that are subject to strict scrutiny. He cites R.A.V. v. City of St. Paul, where the Court addressed a law that prohibited "fighting words" that "insult[ed] or provok[ed] violence on the basis of race, color, creed, religion or gender." R.A.V., at p. 391. While fighting words are an unprotected category of speech, the Supreme Court held that it was unconstitutional to prohibited a content-based subset of that category. Id. at pp. 392, 396.

The approach used in R.A.V. undermines the Austin Court's reasoning. While some elements of the law involve the manner in which sexual images are shared, the law only applies to the sharing of sexual images or images of sexual content -- which is a content-based limitation. The law therefore is content-based, and the Court's attempt to sidestep this is a mistake.

III. The Second Rationale: Lesser Protection for Speech of Purely Private Matters

While the Austin Court's analysis on time, place, or manner restrictions is incorrect, it gave a second, stronger basis for its use of intermediate scrutiny by concluding that the speech at issue was "purely private" speech that was subject to a lower level of scrutiny.

In Dun & Bradstreet, the U.S. Supreme Court upheld a lower court's ruling affirming a jury's award of punitive damages after the defendant credit reporting agency shared a credit report for the plaintiff construction contractor that included false information. Dun & Bradstreet, at pp. 752-53. The Supreme Court noted that while it had previously recognized strong protections for speech on matters of public concern, speech of "purely private concern" warrants "less stringent" protection under the First Amendment. Id. at p. 760. The Court concluded that the credit report was speech of purely private concern, as it was made "solely in the individual interest of the speaker and its specific business audience." Id. at 762. The Court therefore held that permitting recovery of presumed and punitive damages was permitted, even absent a showing of actual malice.  Id. at 762.

The Austin Court uses Dun & Bradstreet and similar language from Snyder v. Phelps to support its conclusion that laws against disseminating private, sexual content are subject to intermediate scrutiny. Scott Greenfield criticizes this move by referring to "purely private speech" as a "non-category category" and accuses the Austin Court of relying solely on dicta from Snyder.  While this criticism is warranted to the extent that Snyder's invocation of lesser protection for purely private speech is dicta, it overlooks the basis for this doctrine in Dun & Bradstreet, which applied that lesser level of protection in upholding presumptive and punitive damages in a defamation case. Admittedly, the context of Dun & Bradstreet was different--as the Supreme Court was not evaluating the constitutionality of a criminal law restricting speech. But the rule set forth in Dun & Bradstreet was broad, and the Court applied that rule favorably in upholding an award of damages in a defamation case. It is neither surprising nor incorrect for a state court to apply this broadly-stated rule to a different set of circumstances, particularly one involving a law that requires the disseminated content to have been initially shared or kept in private circumstances. 

Bennett's criticism is less substantive, as he claims that the Austin Court identifies "speech on purely private matters" as a category of speech that is not subject to the same protection as other speech and that the Supreme Court has never recognized such a category. This misses the mark, as the Supreme Court in both Snyder and Dun & Bradstreet has recognized that speech on matters of purely private concern warrants a lesser level of First Amendment protection. It may not be a category of unprotected speech like defamation, fighting words, or obscenity, but as the Austin opinion demonstrates, the Supreme Court's First Amendment doctrine recognizes that purely private speech is subject to lesser protection, and this reasoning is certain to appear in future cases that involve similar laws against revenge porn. 

Bennett raised this same criticism back in 2014 when Danielle Citron set out proposed language for revenge porn restrictions. At that time, I argued that Bennett's critique of Citron's proposed law was misguided, as it ignored Supreme Court case law on lesser-protected speech of purely private concerns. Bennett dismissed that argument, claiming that the Supreme Court had not considered the "purely private concern" issues in recent cases involving First Amendment challenges to criminal statutes. In light of Austin, it seems that simply dismissing this aspect of First Amendment law is an unwise approach for those who wish to argue that revenge porn laws are unconstitutional. It is also unsurprising that Courts would look to this area of First Amendment law, as revenge porn prohibitions are often drafted to apply only to sexual images and content taken in a private setting and shared in a context where there is an expectation that the images will remain private. (For much more on how technology facilitates invasions of privacy and proposals to address these issues through legal and market efforts, see Citron's article, Sexual Privacy).

As the Cyber Civil Rights Initiative notes, the Illinois law is one of the strongest laws against non-consensual sharing of sexual imagery to survive a First Amendment challenge. Other states are likely to use the reasoning from this case in addressing challenges to their own laws. As other courts address these challenges, they will hopefully use the correct components of Austin's reasoning on lesser-protected speech rather than perpetuate the incorrect analysis on time, place, or manner restrictions.

UPDATE - 10/23/2019

In a measured response here, Bennett takes me to task for not reading extensive briefing that he filed in a separate case in Texas. His post on the Austin case was, after all, simply a "copy-and-paste" version of a brief he filed in the Texas case. My failure to review the briefing on that separate case--which was neither linked to nor referenced in his post on Austin--apparently "annoyed" him.

Bennett's brief from the Texas case, Ex Parte Jones, is included in his response. A link to the Court of Criminal Appeals page for that case where all the briefs can be downloaded is here. I have looked over the brief in Bennett's response and, to his credit, it addresses the private speech issue in far more detail than his original post. Heck, I might even write a separate post in response to those arguments one of these days now that it has been brought to my attention.

Defendant Victorious After 90-Day Jaywalking Trial

The South China Morning Post reports on the conclusion of a 90-day (!) trial for jaywalking in Hong Kong:

A woman charged with jaywalking has been acquitted at the end of a 21-month-long trial which was slammed by a city judge for bringing Hong Kong’s courts into disrepute.

Kamala Thapa denied one count of negligently endangering her own safety, after she was hit by a taxi while crossing Tai Tam Road outside the American Club in Stanley on April 25, 2016.

Her trial at Eastern Court over a traffic summons, which would have cost her a fine of no more than HK$500 (US$64) if convicted, had sparked three judicial reviews, one civil claim and what appeared to be the city’s first arrest warrant issued to a lawyer by a court.

The reason for the disproportionate length of the trial appears to be the result of "extravagant" proceedings in the jaywalking case before the magistrate, along with multiple instances where these proceedings were reviewed by higher-level judges. Here is an example of one some of those instances:

Her trial was punctuated by a dramatic episode. Presiding deputy special magistrate Ho Lai-ming – in what appeared to be a first for the city’s courts – issued an arrest warrant for Thapa’s lawyer Kelvin Leung after comments he made which she deemed offensive. Leung denied the accusations. 

After subsequently changing her barrister, Thapa’s trial hit another wall when a defence witness she had called decided to withdraw halfway through giving evidence. 

But Ho ordered the defence to fulfil its duty by calling the witness back, a decision that prompted Thapa and her lawyers, including Leung, to lodge a judicial challenge.

The South China Morning Post reports that the arrest warrant for Leung has not yet been executed.

After the protracted trial, Thapa prevailed. Both Thapa and the prosecutor unsurprisingly claim that they have incurred substantial fees, and the South China Morning Post reports that Thapa has filed a civil claim against the magistrate judge "for damages in excess of HK$1.7 million [over US$216,000] for loss of liberty and injured feelings."

New York City Department of Transportation Report Finds "Little Concrete Evidence" That Distracted Walking Contributes to Pedestrian Fatalities and Injuries

Proposals for laws and ordinances that restrict "distracted walking" (walking while texting or using the internet on phones) have been all the rage. Now, however, it appears that governments are finally examining the issue and are (unsurprisingly) finding that the perceived plague of distracted walking is disconnected from reality.

New York City's Department of Transportation has issued this recent report finding "little concrete evidence that device-induced distracted walking contributes significantly to pedestrian fatalities and injuries." Coverage of the report is here, here, and here.

The report surveyed United States cases of pedestrian fatalities between 2010 and 2015 and found that were approximately 38 fatalities "involving pedestrian use of portable electronic devices" out of a total of 28,642 pedestrian fatalities. Additionally, the report surveyed New York City fataility reports from between 2014 and 2017 and found that cell phones were involved in two incidents where pedestrians were killed -- one where a pedestrian was texting, and another where the pedestrian was reaching for a dropped "mobile device." This was out of a total of 856 pedestrian fatality cases with available narratives.

The report included estimates of "cell phone-related injuries" on streets and highways--although most of those injuries involved cases where "a driver, passenger, or cyclist" was using a cell phone rather than the injured pedestrian. Even with this broader categorization, the percentage of injuries involving cell phone use was fairly low, ranging from 2.4 to 5.3 percent of all pedestrian injuries from 2009 to 2015.

While the report acknowledges that cell phones can be distracting, and includes several citations to studies regarding distraction, it notes that drivers remain the most important target for regulation. The report states that "the most significant gains in reducing pedestrian fatalities and severe injuries can be made by continuing to target the most dangerous behaviors -- such as driver speeding and failure-to-yield -- and by implementing street improvement projects that reduce the severity of crashes."

Legislators on the state and local level typically focus on anecdotes or instinct when it comes to passing overly broad restrictions against distracted walking. As I have noted before, these restrictions -- which target commonplace conduct -- will likely result in law enforcement officers having broad discretion in deciding who to cite, a scenario that lends itself to selective enforcement. Hopefully, lawmakers considering these regulations will see the New York City Department of Transportation report and note that their efforts to curtail pedestrian deaths and injuries would be better served by other means.

City of Baguio To Again Consider Distracted Walking Ordinance

By now, it should be clear to readers of this blog that I have a Google alert set up to notify me of proposed laws or ordinances related to bills restricting "distracted walking," a practice typically defined as walking while looking at a cell phone or other electronic device (almost always while walking across streets).

Yesterday's notification brought me news from the City of Baguio in the Philippines. The City Council has calendared for second reading an ordinance that will restrict pedestrians from walking across streets while distracted. The Philippine News Agency reports:

The city council here is hearing a proposed ordinance, authored by the Councilor Scout Official For a Day (SOFAD), that prohibits and regulates the use of mobile devices and other distractive devices while walking and crossing the streets and sidewalks to ensure public safety.

“The said ordinance aims to prohibit pedestrian walkers (from using) any distract(ive) tools that could lead them to an accident," Councilor Peter Fianza, member of the Committee on Public Protection, Safety, Peace and Order, said in an interview Tuesday.
The proposal was calendared for second reading during Monday’s regular council session.

Fianza said once approved, the ordinance requires all pedestrians to be vigilant when they walk on the street and not to use gadgets, such as mobile phones, books and other objects “that distract someone’s line of sight.”

What is this about a Councilor Scout Official For a Day?

The city government has institutionalized the scouting program during October, annually giving boy and girl scouts, from elementary to high school who are enrolled in private or public schools, to sit as officials for a day after a screening process conducted by the Girl and Boy Scouts of the Philippines.

I see. Well, since there is no link to the ordinance, and since the City website's link to the legislative monitoring system appears to be broken, do we know exactly what kind of conduct the ordinance bans, and, in particular, whether the ordinance defines "distractive devices?"

[I'm afraid not. Like nearly all journalists, I refuse to put a link to the text of the ordinance in my story even though this would be very helpful to readers, particularly those who read and apply laws for a living and who may provide more in-depth commentary on the law or case being discussed].

Shoot. Well do we at least know what sort of punishment there would be for a violation of this ordinance? I'd guess that the penalties aren't that high, since comparable laws and proposals in the United States only involve relatively low fines like $20.00 per violation.

Once approved as an ordinance, violators will be meted a penalty of a PHP1,000 fine or render community service for the first offense . . .

Okay, PHP1,000 seems to be about $19.00 in US dollars--

. . . PHP2,000 and community service for the second offense or one to 10 days imprisonment; and PHP2,500 and community service or imprisonment of 11 to 30 days for the third offense.

Ouch! Where would someone get an idea for a law like this in the first place?

Fianza said the concept of the proposed ordinance was based on the anti-distracted walking measure in Honolulu, Hawaii.

As far as I can tell, Honolulu was the first city in the United States to ban "distracted walking" while crossing the street, and it has kicked off a bit of a trend of other cities and at least one state (Connecticut) considering or enacting similar bans. This is the first instance of which I am aware where a city in a different country has proposed a similar ban that is explicitly inspired by Honolulu's ban.

Notably, though, this is not the first time a ban like this has been proposed in Baguio. The Herald Express reported in December 2017 that City Councilor Leandro B. Yangot, Jr. proposed a similar ban, although that report indicated that the measure would prohibit a person from crossing "a street or highway while viewing a mobile electronic device in a manner that averts his or her visual attention to the said device." Again, this is only a quote from the report, as I cannot locate the text of that previous ordinance. The penalties for that 2017 proposed ordinance would have been:

[C]ommunity service of 15 days for the first offense, community service of 30 days for the second offense, and a fine of P5,000 or imprisonment or both, upon the discretion of the court, for the third offense.

Tough, although I presume that this previous ordinance did not pass in light of the recent, similar proposed ordinance. The old proposal was at least a little more narrow, however, as the most recent proposal would ban looking at objects like books in addition to the typical phone or electronic device.

Without the text of the ordinance, there is not much more for me to say other than to repeat my point that such bills are misguided because they ban common practices and will likely lead to selective enforcement. They also will likely not deter people from walking while distracted, because the danger of being struck by a vehicle is apparently not enough of a deterrence. This most recent proposed ordinance is particularly notable as an example of how lawmaking in the United States -- including silly lawmaking -- may have an expansive impact, not only in other American cities and states, but in other parts of the world.

A 59-Line Breyer Question

Following up on my prior monitoring of the length of Breyer questions, yesterday's oral argument in Lamone v. Benisek prompted the following question/hypothetical from Justice Breyer:

This 59-line Breyer "question," or "Breyer Page" appears to be a new record, as the last record I've been able to locate was a 57-line Breyer Page in Gill v. Texas that Josh Blackman flagged back in 2017. Audio of the argument is not yet available, so I do not know yet if this is the longest Breyer Question ever asked in terms of length of time.

Connecticut Legislature to Consider Ban on "Distracted Walking"

The Hartford Courant reports on a "Distracted Walking" law that is making its way through Connecticut's legislature. From the report:

The General Assembly’s transportation committee was voting Wednesday on a bill that would make it a fineable offense to cross the street while looking at your cellphone.

“This is really about trying to protect the person who should be aware when they’re putting themselves in front of a two or three ton vehicle barreling at them … if they’re not paying attention they will lose that battle,” said Sen. Carlo Leone, D-Stamford and co-chair of the committee.

Rep. Roland Lemar, D-New Haven and the committee’s other co-chair, said he started out opposing the bill, reasoning that walkers “present the least danger” in terms of causing traffic accidents.

“As I heard from more and more people, this is a shared responsibility that we have,” he said. “We do have things like distracted driving, so distracted walking is a reasonable standard that we should establish.”

The bill is S.B. No. 825 and can be found here. The bill is of note because it is, to my knowledge, the first state-level legislation that would restrict the use of electronic devices while walking across streets. A few towns have passed restrictions like this, but I am not aware of any states that have done so.

From the text of the bill:

Section 1. (NEW) (Effective October 1, 2019) (a) For the purposes of this section, "mobile electronic device" means any hand-held or other portable electronic equipment capable of providing data communication between two or more persons, including, but not limited to, a mobile telephone, a text messaging device, a paging device, a personal digital assistant, a laptop computer, equipment that is capable of playing a video game or a digital video disk, or equipment on which digital photographs are taken or transmitted, or any combination thereof, and "viewing" means looking in the direction of the screen of a mobile electronic device.

(b) Except as provided in subsection (c) of this section, no pedestrian shall cross a highway while viewing a mobile electronic device.

(c) The provisions of subsection (b) of this section shall not apply to (1) the use of a mobile electronic device for the sole purpose of communicating with any of the following regarding an emergency situation: An emergency response operator, a hospital, physician's office or health clinic, an ambulance company, a fire department or a police department, or (2) any of the following persons while in the performance of their official duties and within the scope of their employment: A peace officer or firefighter, as those terms are defined in section 53a-3 of the general statutes, or any emergency medical responder, emergency medical technician or paramedic, as those terms are defined in section 19a-175 of the general statutes.

(d) Any person who violates the provisions of this section shall, for a first violation, receive a warning and, for any subsequent violation, be fined twenty dollars.

This restriction is narrower than Honolulu's ban (examined in painstaking detail here). Connecticut's proposed restriction applies to a smaller range of devices, as it includes the important qualification that a "mobile electronic device" affected by the bill must be capable of providing data communication between two or more persons. Honolulu's ban, on the other hand, applied to devices that either provided for communications between two or more people OR were capable of "providing amusement." This means that even if someone is fiddling with an iPod while crossing the street, they will not violate this law, provided that their iPod is a model that cannot send messages or texts to other people. Of course, it seems that no one (including me, for the most part) listens to music on anything other than their phones while walking anymore, but now there may be a reason to dust off the old devices.

Unlike Montclair, California's terribly-drafted ban, the Connecticut bill only applies to instances where pedestrians are "viewing" the device, which the bill defines as "looking in the direction of the screen of a mobile electronic device." Honolulu uses a similar definition. This is narrower than Montclair's ban, which also applies to listening to devices with headphones.

As I've noted before, I generally oppose restrictions like this. Bills that prohibit common practices like this are likely to be unequally enforced in light of widespread violations will occur, and enforcement will be left up to the discretion of law enforcement officers. Broad grants of discretion like this are likely to disproportionately impact racial minorities, the poor, and others who officers believe are "suspicious." While this bill isn't as broad as Montclair's ban, it is still more than is necessary. And, as I've also noted before, while proponents of the bill may argue that its twenty-dollar fine is low, this amount is still burdensome to some and it can add up for those who are repeatedly cited -- a likely occurrence for a prohibition on common activity.

And as for Rep. Roland Lemar's change of heart on the bill in light of restrictions on distracted driving, this ignores the fact that pedestrians are not the ones who are likely to cause harm to others if they are walking while distracted. Distracted driving rules make sense, as vehicles can cause significant injury or death if their drivers aren't paying attention. As for people who are walking, they may well end up injured if they are walking while distracted, but they are not going to injure others like distracted drivers. That Lemar cannot recognize this distinction is unsettling.

As for the status of the bill, on March 20, 2019, the Transportation Committee voted in favor of the bill, and as of today, the bill has been submitted to the Legislative Commissioner's Office. From there, it may be voted on by the legislature or it may proceed to a different committee (at least, that's what I've been able to grasp from this cheat sheet on Connecticut legislative procedure). Hopefully the bill will be referred to another committee to die, or the legislature will vote against it, as it is an unnecessary restriction that may prompt other states and towns to follow suit.

The Supreme Court Will Hear the First Major Second Amendment Case in Nearly a Decade

On Tuesday, the Supreme Court granted certiorari in a case challenging the constitutionality of New York City's regulations that restrict the carrying of firearms outside the home. The New York Times and Wall Street Journal have more reporting on the background of the case. From the New York Times:

The Supreme Court said on Tuesday that it would review a New York City gun law that limits residents from transporting their guns outside their homes, its first Second Amendment case in nearly a decade and a test of the court’s approach to gun rights after the arrival of Justice Brett M. Kavanaugh in October. 

Justice Kavanaugh, who replaced the more moderate Justice Anthony M. Kennedy and created a reliable five-member conservative majority, has an expansive view of gun rights. His presence most likely means that the Supreme Court will start exploring and perhaps expanding the scope of the Second Amendment.

The case is New York State Rifle & Pistol Association, Inc. v. City of New York, and the petitioners challenging New York's rule are an organization and several individual gun owners. The Second Circuit opinion that is being appealed is here.

New York Penal Law section 400.00(2)(a) and (f) provide for "premises" licenses and "carry" licenses for handguns. New York City's Rule regarding premises licenses states:

(a) Premises License – Residence or Business. This is a restricted handgun license, issued for a specific business or residence location. The handgun shall be safeguarded at the specific address indicated on the license. This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately. (38 RCNY § 5-01(a)

This rule contains a number of restrictions, including that handguns be transported unloaded in a locked container, that ammunition be carried separately, and that handguns may be transported to "authorized" shooting ranges. The City acknowledges that there are seven authorized ranges in New York City. Holders of premises licenses are restricted from transporting firearms to shooting ranges outside of the city or to second homes, even if they are within the city (as this destination is not "an authorized small arms range/shooting club."

The Court has refused to take up Second Amendment cases since its 2010 ruling in McDonald v. City of Chicago in which it held that the Second Amendment's protections apply to the states. The Court had previously held in its 2008 ruling in District of Columbia v. Heller that the Second Amendment creates an individual right and that its core protection was of the possession of firearms for self-defense in the home. Since then, lower courts have applied a variety of approaches to the Second Amendment, as many of the cases they have confronted have involved rules or restrictions affecting the possession or carrying of firearms outside of the home. Noting Heller's statement limiting the core possession to self-defense in the home, and also noting language stating that the case should not cast doubt on other, "longstanding" restrictions on firearms, lower courts have typically restricted the scope of the Second Amendment. The Supreme Court has consistently refused to review these decisions -- including cases involving the carrying of firearms.

This is now likely to change, as there are now four conservative justices with expansive views of Second Amendment protections. These four justices create a block of four votes required to grant review of lower courts' decisions.

Justice Thomas, in particular, has consistently dissented from the Court's prior refusals to take up Second Amendment cases. He has been joined in these prior dissents by Justice Gorsuch (in this case involving California's restrictions on the carrying of firearms). Justice Alito likely shares Thomas's views, as reflected in his concurring-in-the-judgment opinion in Caetano v. Massachusetts, in which Alito (joined by Thomas) criticized the reasoning of the lower court opinion and argued that the Second Amendment's protection encompasses the possession of weapons commonly used today for self-defense. (As an aside, commentators will likely point to Alito's 1996 dissent from a case upholding a ban on machine guns, but that dissent is not particularly useful, as his analysis focuses on the Commerce Clause of the Constitution, and not on the Second Amendment). Justice Kavanaugh is likely to join Thomas, Gorsuch, and Alito in seeking a broad ruling on Second Amendment protections, as he has previously ruled that prohibitions on semi-automatic firearms are unconstitutional. (See page 46 of this opinion for the start of Kavanaugh's dissenting opinion while he was still on the DC Circuit).

Some commentators argue that the Supreme Court will likely overturn the Second Circuit's opinion and broaden the scope of Second Amendment protections. Mark Joseph Stern argues this in this Slate article and Garrett Epps makes a similar point over at The Atlantic. Both articles have exaggerated titles (Stern's claims that the Court will make all states' laws like Texas' laws and Epps' title raises the notion of "Supersizing" the Second Amendment). But the tone of each article suggests that these goofy titles are likely the choice of editors rather than the authors.

Stern writes:

The case thus marks an effort to inch the Supreme Court toward establishing a right to public carry without forcing the justices to tear down hundreds of laws in a single, sweeping ruling. For a decade, gun advocates have been stymied by the language in Heller and McDonald expressly limiting the Second Amendment to firearms “in the home.” The conservative justices, however, will probably use New York State Rifle to blur that line.

 And Epps notes:

The Rifle & Pistol case begins, then, with four virtually certain votes against the New York law—the two newcomers, Thomas, and Alito. Chief Justice John Roberts voted for the gun owners in Heller and McDonald. He may have been trying to keep the Court out of the Second Amendment area for institutional reasons since then, but that’s not likely to make him go back on his earlier votes when the time comes to throw down. 

“The impact of this case could be huge,” [Law Professor Adam] Winkler told me, because the Court may decide that the right to gun possession extends outside the home. The Court could undermine long-standing restrictions on concealed carry in America’s major cities, leading to hundreds of thousands more guns on the streets of Los Angeles, New York, and Washington, D.C.

Like Stern and Epps, I think that it's likely that the Court will overturn the Second Circuit opinion and strike down the New York City rule. The question then becomes how broad the Court's opinion will be. The New York City rule has several levels on which the justices may rule. A narrow ruling would overturn the rule based on its destination restriction, which prohibits premises license holders from taking their handguns anywhere other than an authorized shooting range. A broader ruling could strike down the law because it prohibits these license holders from carrying the handguns in a locked container separate from the ammunition. Such a broad ruling may be complicated by New York's alternate permit schemes -- which include concealed carry permits -- but there may be ways around this, such as a ruling striking down the locked container portion of the requirement only, while leaving the separate ammunition component intact.

There is also the question of how a broad determination of the Second Amendment's protection can make its way into the opinion. My first instinct, from looking at the layout of the Court and -- in particular -- Chief Justice Roberts's likely goal to avoid large changes in the law, is that there will likely be a majority opinion of Roberts, Alito, Gorsuch, Thomas, and Kavanaugh that overturns the law for its destination restriction, and a concurring opinion of the latter four justices that argues that the locked-case / no ammunition restriction is also impermissible.

A less-likely alternative is that Roberts will author an opinion that includes dicta that lays the foundation for a broader Second Amendment protection scheme. This would be similar to the paragraph in the Heller opinion that stated that "longstanding" restrictions on firearms (such as restrictions of criminals' possession of guns and prohibiting firearms in government buildings) were not cast into doubt by the opinion -- a paragraph that was reportedly added to gain Justice Kennedy's vote -- and which formed the basis of many restrictive lower court opinions in subsequent years. I think that an approach with language that leans in the opposite direction and calls for more Second Amendment protections is unlikely, as the most conservative justices will still join in the narrower majority opinion even if they write their own concurrence.

However the outcome may look in the end, it is likely that the Court will overrule the lower decision and, in doing so, hold that the Second Amendment provides at least some level of protection to the carrying of firearms beyond the home. However narrow the opinion is framed, this opinion would significantly broaden the scope of Second Amendment protections, and would likely lead to much more successful litigation against states and localities with strict restrictions on the carrying of firearms.