Second Amendment

Supreme Court Dooms Chicago Gun Ban; Obama Judicial Nominees Oppose Gun Rights; Religious Clubs Lose First Amendment Case; Removal of High-Ranking Bureaucrats Made Easier

by Hans Bader on June 30, 2010

in Intellectual Property, International, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

The Supreme Court doomed Chicago’s handgun ban Monday by ruling 5-to-4 that the Second Amendment applies to state and local governments like Chicago, not merely the federal government.  (Most guarantees in the Bill of Rights are deemed so fundamental that they apply to both state and federal governments, but a few rights deemed trivial, like the right to a jury trial in lawsuits seeking over $20, only are applied by the Courts to the federal government, not the states.)  In 2008, the Supreme Court ruled that the Second Amendment protects the individual right to possess a handgun in a federal enclave, in striking down a handgun ban in Washington, D.C., in District of Columbia v. Heller.  Chicago’s ban is quite similar to the one found unconstitutional in Washington, D.C., so the Supreme Court’s ruling Monday in McDonald v. City of Chicago dooms Chicago’s gun ban.

In 2009, President Obama’s first Supreme Court nominee, Sonia Sotomayor, claimed before her confirmation to accept the Supreme Court’s ruling in Heller as binding precedent.  But on Monday, she joined a dissent by the Supreme Court’s four liberal justices calling for the Heller decision to be overruled.  Second Amendment scholar David Kopel says that Sotomayor was not candid, noting that her opinion “contradicted” what she told the Senate before the Senate confirmed her to the Supreme Court.  It is likely that future liberal Supreme Court nominees will pretend to support gun rights until they are confirmed, then vote against such rights once on the Court.

Obama’s current Supreme Court nominee, Elena Kagan, lumped the NRA together with the KKK as “bad guy orgs” while serving in the Clinton administration, suggesting that she will consistently rule against gun owners if her nomination is approved by the Senate.  Kagan failed to defend federal laws protecting crime victims while serving as Solicitor General.

As a Harvard dean, Kagan blocked the military from recruiting, in defiance of a federal law requiring access for military recruiters.  Kagan claimed her opposition was based on the military’s exclusion of openly-gay soldiers, not hostility to the military in general, but this is hard to square with the fact that she had no problem letting the Saudis sponsor an Islamic studies program at Harvard Law School, even though the Saudis flog and execute gay people, and she had no problem serving in the Clinton administration, even though Clinton signed into law both the restrictions on gays in the military she claimed to object to (the Don’t Ask, Don’t Tell policy), and the ban on federal recognition of gay marriages contained in DOMA.

The Supreme Court Monday also ruled that religious clubs can be forced by colleges to admit atheists and others who disagree with the club’s religious perspective as members, as long as the college requires this as part of a general policy of banning clubs from discriminating based on any characteristic.  The Supreme Court’s four “conservative” justices dissented against this ruling limiting the First Amendment’s freedom of association, while moderate Anthony Kennedy joined the Supreme Court’s liberal bloc in ruling against the religious clubs in Christian Legal Society v. Martinez.

In Free Enterprise Fund v. PCAOB, the Supreme Court, in a 5-to-4 ruling, cut back on restrictions on the ability to remove high-ranking bureaucrats, ruling that provisions of the Sarbanes-Oxley law that kept anyone from removing members of the Public Company Accounting Oversight Board except for willful misconduct unconstitutionally infringed on the constitutional separation of powers, which requires that important government employees be subject to some degree of accountability to higher-ups in the executive branch.  However, the Supreme Court left intact the bulk of the Sarbanes-Oxley law.  The red tape adopted by bureaucrats under Sarbanes-Oxley has driven many IPOs and American jobs overseas.  The red tape costs the economy $35 billion a year, according to the American Electronics Association, and it did nothing to prevent the mortgage meltdown, Bernard Madoff’s $50 billion fraud, or the faulty valuation of sub-prime mortgage-backed securities that helped spawn the financial crisis.

The Supreme Court overturned a ruling that allowed business methods to be treated as exclusive property under the patent laws, but did not definitively rule out the patenting of business methods, in Bilski v. Kappos.

LibertyWeek 96: Donut Day Disobedience

by Richard Morrison on June 8, 2010

in CEI Projects, Features, Podcast, Zeitgeist

Richard Morrison and Marc Scribner welcome Chris Horner, Sam Kazman, and Ryan Radia to Episode 96 of the LibertyWeek podcast. We cover Chicago’s dishonorable gun restrictions, a special interview with bestselling author Christopher C. Horner, civil disobedience on National Donut Day, a shout out to CEI’s annual dinner gala and the FTC’s proposed “Drudge Report Tax”.

Senate Committee Rubberstamps Left-Wing Ideologue to Head Powerful OSHA Agency Despite His Anti-Gun and Pro-Junk-Science Views

by Hans Bader on November 18, 2009 · 2 comments

in Employment, Health and Illness, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony

David Michaels, a left-wing ideologue who supports junk science and seeks to restrict gun possession, has been approved by the Senate Health Committee to head the federal Occupational Safety and Health Administration (OSHA). Only two committee members, both Republicans, voted against Michaels.

The vote occurred with no discussion, and no hearing was even held on his nomination, although hearings have consistently been held on OSHA nominees in the past, even for far less controversial picks.

Lawyer and Second Amendment expert, David Kopel explains how Michaels wants to ban guns in and near workplaces, and could use his position at OSHA to do so, if the political climate shifts in favor of gun control. (Some businessmen in high-crime areas possess guns to protect themselves against armed robbers, and even strict local gun-control laws have generally contained exceptions to allow such businesses to defend themselves.)

The fact that such bans might undermine, rather than enhance, workplace safety would not deter Michaels, who would be happy to rely on junk science.   Michaels wants to reverse the Supreme Court’s Daubert decision limiting the use of junk science.

As the Washington Times noted, “Mr. Michaels also is an anti-gun zealot who has described ‘gun violence’ as an issue of ‘public health’ that ‘invariably demands more and stronger regulation, not less.’ As Walter Olson of the Manhattan Institute explained, by way of warning, on Aug. 15: ‘That’s by no means irrelevant to the agenda of an agency like OSHA, because once you start viewing private gun ownership as a public health menace, it begins to seem logical to use the powers of government to urge or even require employers to forbid workers from possessing guns on company premises, up to and including parking lots, ostensibly for the protection of co-workers. In addition, OSHA has authority to regulate the working conditions of various job categories associated with firearms use (security guards, hunting guides, etc.) and could in that capacity do much to bring grief to Second Amendment values.’”

As I noted in a New York Times story, Michaels’ appointment could “dramatically alter OSHA’s approach to ensuring workplace safety.” Michaels has been called “one the nation’s foremost proponents of allowing junk science to be used in jackpot-justice lawsuits.”

Many business groups raised concerns about his nomination and extreme views.

Iain Murray notes that Michaels seeks to ban useful products from the workplace based on imaginary risks. One newspaper calls Michaels “virulently anti-business.”

The lopsided committee vote in favor of Michaels is probably explained by log-rolling.  As The Wall Street Journal has noted, some Republican committee members likely voted along with their Democratic colleagues to approve Michaels, in exchange for Obama’s recent nomination of an aide to the ranking Republican committee member, to sit on the board of an independent agency that is supposed to be bipartisan (the NLRB), but which Obama could conceivably have made even more partisan and liberal than it is by nominating a liberal RINO rather than a GOP aide to that post (that might have invited a filibuster, but there are only 40 Republican Senators, and it takes 41 votes to successfully filibuster a nomination).

Supreme Court Confronts Free Speech, Animal Cruelty, Gun Rights, Violent Crime, and National Sovereignty Issues

by Hans Bader on October 6, 2009 · 2 comments

in International, Legal, Nanny State, Personal Liberty, Precaution & Risk

The Supreme Court is back in session. Today, it is hearing a challenge to a federal law banning depictions of cruelty to animals brought by a defendant convicted of selling pit-bull dogfight videos. A federal appeals court struck down the 1999 law as a violation of the First Amendment. The government is asking the Supreme Court to reinstate the law, and rule that animal cruelty depictions are not protected speech, the way some other kinds of speech, like obscenity, are considered unprotected by the Supreme Court.  (While the Supreme Court has ruled that obscenity is not protected speech, it has required that obscenity be defined narrowly so as not to reach sexually-oriented speech that either has artistic, literary, or political value, or is not patently offensive.)  At oral argument today, the Justices suggested that the law is overbroad and vague.

The Supreme Court also recently agreed to hear a challenge to Chicago laws banning handguns, in a case called McDonald v. City of Chicago. I explained earlier why the lower court ruling upholding the ban was based on flawed reasoning about how Second Amendment rights apply to state and local governments.

The court will also hear a challenge to the imposition of life sentences without parole on teenage offenders who have repeatedly committed violent crimes (like rape and sexual battery) against victim after victim, but not yet succeeded in killing someone. If the challenge is successful, it may be harder for states to deter violent crimes by minors against children and adults alike. (The death penalty and life sentences are significant deterrents to those who commit violent crimes, reducing the murder rate.  For example, a recent Emory University study says that each execution deters approximately 18 murders.)

The Heritage Foundation explains why life sentences without parole are appropriate, and why it would be a bad idea for judges to make up limits on such sentences.

A gaggle of left-wing lawyers and religious groups are asking the Supreme Court to rule that the Eighth Amendment’s ban on cruel and unusual punishment restricts the imposition of life without parole on juveniles, even when they have repeatedly committed violent crimes. Their long-run goal is to make it as difficult to impose life sentences as it currently is to impose the death penalty, which cannot be carried out without years of endless and expensive appeals, most of which focus on aggravating or mitigating factors, rather than the defendant’s guilt or innocence (even admittedly-guilty death row inmates often succeed in delaying for years, or even overturning, their death sentences).  (Most murderers never even get the death penalty, even when they outrageously torture the dying victim.)

The left-wing lawyers and religious groups are also unjustifiably seeking to use fuzzy notions of “customary international law” to override U.S. law, as the Cato Institute and others have pointed out in their court brief.

“Customary international law” threatens America’s security and civil liberties.  Piracy flourished in the crucial shipping lanes off the coast of Somalia partly due to a treaty that the U.S. has not ratified yet — but which is often described as “customary international law” binding on all nations. Partly as a result of the LOST Treaty, billions of dollars worth of cargo, and human lives, have been lost due to piracy. Harold Koh, appointed by Obama to be the State Department’s chief lawyer, argues that “customary international law” like LOST is binding on the U.S., even when it is reflected in treaties that the U.S. has refused to sign.  (European human-rights conventions and an indecisive White House also have delayed action against the pirates.)  That’s just one reason U.S. policymakers should think twice before following vague “international norms.”

Since customary international law is vague, liberal lawyers invariably use that ambiguity to claim that it dictates a host of controversial requirements that few countries would voluntarily adopt on their own, like banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”

One of the arguments in the animal-cruelty video case — that the government can prohibit an entire category of speech to promote a “compelling interest” — is quite dangerous, because courts now routinely find even trivial government goals to be “compelling interests.” It is almost considered bad manners for a judge to candidly say that a law passed by a legislature is not supported by a compelling interest, which is why judges usually strain to find that the other Supreme Court requirement for upholding a ban on speech (“narrow tailoring”) is missing instead. (In my 2007 law review article, I listed some of the not-very-crucial interests widely recognized by the courts as “compelling,” like “preventing splintered political parties and establishing professional standards.”  Courts sometimes find interests to be “compelling” even when they logically contradict each other — for example, courts have found “compelling” interests justifying both governmental discrimination against gay people, and governmental bans on discrimination against them (even purely private discrimination by religious groups or clubs).  Some court rulings finding “compelling interests” are just wrong.)

The Supreme Court cases challenging life without parole are Graham v. Florida and Sullivan v. Florida. The animal cruelty video case is U.S. v. Stevens.

Supreme Court to Decide Whether Second Amendment Forbids State and Local Gun Bans

by Hans Bader on October 1, 2009

in Legal, Personal Liberty

The Supreme Court has agreed to review a lower court ruling upholding Chicago’s handgun ban.   In 2008, the Supreme Court, in a 5-to-4 vote, struck down Washington, D.C.’s handgun ban.  But the Seventh Circuit Court of Appeals refused to apply that ruling to Chicago’s handgun ban, saying that the Second Amendment only applies against the federal government, not state and local governments like Chicago.  A decision in McDonald v. Chicago is expected some time next year.

The idea that the Second Amendment only applies against the federal government, not state and local governments, is a relic of the Cruikshank and Presser cases in the 19th Century, in which the Supreme Court stated that both the Bill of Rights in general, and the First and Second Amendments in particular, only apply against the federal government, not the states.  But by the 1930s, the Supreme Court had firmly rejected this rule under what is known as “incorporation,” under which the Due Process Clause of the 14th Amendment was read by the courts to incorporate against state governments almost all of the rights contained in the Bill of Rights, such as First Amendment rights, the right to private property, and the right to be free of cruel and unusual punishment.

The Seventh Circuit held that it was bound by the 19th Century decisions refusing to apply the Second Amendment against the states — never mind that that their reasoning, and related ruling that the First Amendment applies only against the federal government, have been rejected by many subsequent decisions specifically ruling that free speech, as a right guaranteed by the Bill of Rights, applies to state and local governments, too, through incorporation under the Due Process Clause.

Moreover, the Supreme Court’s 19th Century gun decisions weren’t even controlling, since they rejected a different argument than the one that the Chicago gun ban challengers recently made, as UCLA law professor Eugene Volokh notes.

The Supreme Court in those cases only addressed the argument that the Privileges and Immunities clause of the Fourteenth Amendment protects against state restrictions, not the argument that the Due Process Clause protects against states.  By contrast, the challengers to Chicago’s gun ban relied on the Due Process Clause, based on Supreme Court decisions after Presser holding that it incorporates against the states the guarantees of the Bill of Rights.

The Seventh Circuit’s using a Supreme Court case involving one argument to reject a different argument violated basic principles laid down by the Supreme Court itself.  The Supreme Court has warned that “cases cannot be read as foreclosing an argument that they never dealt with.”See Waters v. Churchill, 511 U.S. 661, 678 (1994).

The Supreme Court has emphasized this many times. See, e.g., Texas v. Cobb, 532 U.S. 162, 169 (2001) (“constitutional rights are not defined by inferences from opinions which did not address the question at issue”); Plaut v. Spendthrift Farm, 511 U.S. 211, 232 n.6 (1994) (“the unexplained silences of our decisions are not entitled to precedential weight”).

Thus, the Supreme Court should reverse the Seventh Circuit’s ruling in National Rifle Association v. City of Chicago, 567 F.3d 856 (7th Cir. 2009).