A Talk About Heller at 'Bama

This Thursday I'll be in recently rain-swept Tuscaloosa, giving a talk at the University of Alabama School of Law on "The Future of the Right to Arms After D.C. v. Heller." at the kind invitation of 'Bama's chapter of the Federalist Society. I hope to discuss Heller's revision of U.S. v. Miller, the role of nineteenth-century state court decisions in Heller, and future Second Amendment battlegrounds such as incorporation, concealed carry, and the possible renewal of the expired federal "assault weapons" ban. Time permitting, I'll also discuss what Heller illustrates about the distinctive character of American conservatism.

The talk will be held at 12:00 p.m. Thursday, August 28, in the Moot Courtroom in the UA Law School building. It would be a treat to encounter some CoOp readers there.

Travel bleg:

I've never been to Alabama. Any suggestions for things to do/see during a brief visit to Tuscaloosa or Birmingham (where I'm staying)? I do plan to visit the Birmingham Civil Rights Institute.

Posted by Mike O'Shea at 07:56 PM | Comments (8) | TrackBack

Hamdan, Human Rights, and John Edwards

Last week Salim Ahmed Hamdan was sentenced to 66 months in prison pursuant to his conviction for providing “material support for terrorism” before a military tribunal. His material support was comprised of driving Osama bin Laden around and serving as one of his body guards. Hamdan’s relatively short sentence, which will include time already served in detention at Guantanamo, will advance the issue of whether detainees who have served their punishment after conviction in the Administration’s military tribunals will be released, or will continue to be held as enemy combatants. Hamdan will likely complete his five and a half year sentence before a new administration is inaugurated. If President Bush does not release him immediately on completion of his sentence, that will leave the next administration with one more complicated problem to resolve. The NY Times reports that a Pentagon spokesperson “would not speculate’ on whether Hamdan would be released after completing his sentence.

Would it not violate Due Process to hold Hamdan indefinitely after completing his sentence for a criminal conviction? Under the reasoning provided by the Supreme Court in Hamdi, perhaps not.

Finding authority for detentions for the duration of the conflict against Taliban forces in Afghanistan under the Authorization to Use Military Force, the Hamdi Court concluded: “The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who ‘engaged in an armed conflict against the United States.’ If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the AUMF.” Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).

I would assume that a conviction for material support of terrorism, in addition to the Combatant Status Review Tribunal determinations, would support the claim that Hamdan has been “legitimately determined to be [a] Taliban combatant[].” Thus, there will be an argument that Hamdan’s status has not changed as someone properly designated an enemy combatant, even if he has completed a sentence for a criminal conviction. With hostilities continuing, if not worsening, in Afghanistan, the scene is set for the ugly possibility that having failed to obtain a sought-after life sentence, the government might resume its practice of merely holding individuals for the duration of conflict under the AUMF. With both Presidential candidates vowing increased military activity in Afghanistan, in the near term, such detention would be indefinite.

There has been no shortage of criticism for this flawed system from human rights groups as well as governments abroad. This weekend President Bush gave a speech in Bangkok in which he spoke of his “deep concerns over religious freedom and human rights” in China. Putting pressure on other nations over their human rights abuses has been an important part of our foreign policy for over half a century, which has required the U.S. to present itself as that beacon of freedom and liberty. As many others have said many times, U.S. practices that have included torture and cruel, inhumane and degrading treatment, indefinite detentions, the attempt to evade constitutional checks by courts or Congress, and military tribunals have all undermined our international standing to speak about the human rights abuses of others. Becuase of these policies and practices, the President has undermined some of the moral authority that would ground his remarks about China’s human rights record.

For the reader who has made it to the end of this post, here is where John Edwards’ recent revelation of marital infidelity is relevant. Maureen Dowd comments on Edwards in the NY Times: “He has an affair with Hunter, while he’s honing his speech on the imperative to ‘live in a moral, honest, just America.’” Edwards receives particular condemnation not simply for his infidelity (and not simply for having placed the whole Democratic Party at risk), but for what the apparent hypocrisy might reveal about his character. If we translate at the national level “constitutional culture” for personal character, the worry is that our own apparent hypocrisy reveals something very troubling about our own constitutional culture. Tabloid T.V. apologies won’t do at the national level, but a new administration’s commitment to releasing Hamdan after serving his sentence, and shutting down further military tribunals in favor of civilian or military courts just might.

Posted by Thomas Crocker at 04:23 PM | Comments (2) | TrackBack

What's the worst still-current Supreme Court decision?

When John McCain made the extremely ill-advised comment that Boumediene v. Bush was "one of the worst decisions in the history of this country," bloggers showed up in force to illustrate the statement's ridiculousness. Writers at a number of blog (and other) sites began to list other decisions that are clearly worse than Boumediene, no matter one's political views. (I personally don't think Boumediene is a bad decision; but even if it were, it wouldn't pass these.) The lowest-hanging fruit here are Dred Scott v Sanford, Plessy v. Ferguson, and Korematsu v. United States. There are several other easy fish in this barrel, like Buck v. Bell and Chae Chan Ping. This isn't difficult. Also, these decisions have since been repudiated or abandoned by the court.

(Sort of. Korematsu has never been formally overruled. However, the decision's results have been sufficiently undermined -- through Fred Korematsu's coram nobis action; legislative apology and reparations; Fred Korematsu's Presidential Medal of Freedom; and overwhelming criticism from all quarters -- that it is essentially a dead letter today.)

(Chae Chan Ping has also never been overruled in some regards, but the most obviously invidious portions of it -- upholding the Chinese Exclusion Act -- have been rendered obsolete by the legislature. Today, Chae Chan Ping does not stand for the same things it stood for in 1889. But, see below.)

Paul Gowder recently asked an interesting follow-up question: "What’s the most destructive Supreme Court case that’s still good law?"

Obviously, for a significant set of the population, the answer would be Roe v. Wade (or Casey; or Griswold). For a mostly different set, the answer would be Bush v. Gore.

Beyond those, which cases might qualify?

Paul suggests Buckley v. Valeo and Wisconsin v. Yoder, both of which seem reasonably open to criticism. Other possibilities include, I think, the whole gamut of affirmative action cases: Bakke, Adarand, the Michigan cases, Seattle/Louisville -- it's easy to find something to hate, no matter what your views on affirmative action. There's Kelo, for takings fans. (Or any number of other takings cases: Nolan/Dollan, Lucas, even Mahon. Takings law is sufficiently messy that you're bound to hate at least one of them, maybe more.) There's Lemon v. Kurtzmann, if you're Justice Scalia (or otherwise not a fan of late-night horror movies).

(Is that really in the same league as affirmative action, takings, and so on? The harm of a bad Establishment Clause case is that someone does or doesn't get to show their crèche at Christmas. That just doesn't seem to rise to the same level as racial discrimination in employment, or eviction from one's property, or other harms. The same applies in areas like the punitive damages cases. Even if you think Amchem or Ortiz v. Fibreboard is really bad, it ultimately boils down to whether plaintiffs and plaintiffs attorneys get a big check. It's hard to call that the most-horrible-ever, I think.)

So yes, there are a number of potential worthy candidates (much of the list depending on one's particular substantive views).

However, I'd probably go with . . . Chae Chan Ping. Yes, the most obviously invidious portions of it have been effectively rendered obsolete -- the Chinese Exclusion Act no longer exists. But Chae Chan Ping (and other follow ups like Fong Yue Ting) established the plenary power doctrine in immigration. That doctrine has operated to give Congress the ability to limit immigrants' rights almost entirely free from judicial oversight -- it's been carte blanche to deprive immigrants of rights for over a century. And on that point, it's still good law. (Though, post-Zadvydas and St Cyr, plenary power may not be quite what it used to be.)

Posted by Kaimipono D. Wenger at 08:48 PM | Comments (8) | TrackBack

"Machine Guns" That Aren't: Did the D.C. Code Mislead Justice Breyer?

An emergent theme of October Term 2007 seems to be avoidable mistakes in high-profile Supreme Court opinions. We've been surprised by the failure of Court and litigants in Kennedy v. Louisiana to notice the federal military death penalty for child rape, and by Justices Stevens and Scalia's mischaracterization, in D.C. v. Heller, of the Court's 1939 Second Amendment precedent, U.S. v. Miller, as "upholding a conviction" for violating a federal firearms law. See 2008 WL 2520816, *26 (opinion of the Court), * 34 (Stevens, J., dissenting). Actually, Miller won in the lower court and was never convicted.

I think I've found another mistake, this time in Justice Breyer's Heller dissent. This one is subtler than the Kennedy error, but it significantly damages the persuasiveness of the Breyer dissent.

Justice Breyer joined Justice Stevens's dissenting opinion in Heller, which concluded flatly that the Second Amendment "protects only a right to possess and use firearms in connection with service in a state-organized militia," 2008 WL 2520816, *37 (Stevens, J., dissenting). However, Breyer also authored a separate dissenting opinion that mounts an alternative argument for the constitutionality of the D.C. handgun ban.

Justice Breyer argues that, even assuming the Second Amendment does protect, to some extent, an individual right to possess firearms for self-defense, this is still only one of several interests served by the right: the others are (1) furthering a well regulated militia, and (2) sporting uses such as hunting and target shooting. Furthering the militia, Justice Breyer asserts, is the Second Amendment's "first and primary objective." Id. at * 68 (Breyer, J., dissenting). He admits that this objective entails an interest in enabling citizens to possess weapons for military training and practice. Id. at *68 (acknowledging amicus briefs to this effect by former military officers). However, he argues, the handgun ban does not unreasonably burden these two interests, and especially not the "primary," militia-furthering interest. Therefore, it does not violate the Second Amendment, even though it does "burde[n] to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further." Id. at *70.

I want to focus on Justice Breyer's argument that the handgun ban does not unreasonably burden the military training interest. His argument appears to turn on the alleged availability of a wide range of appropriate alternative training arms. Thus, Justice Breyer claims that although D.C. residents cannot possess handguns, the training interest is "not seriously affect[ed]" because "they may register (and thus possess in their homes) weapons other than handguns, such as rifles and shotguns." Id. at *68 (citing a retired generals' brief that lists "rifles, pistols, and shotguns" as useful military weapons). Indeed, Justice Breyer cites D.C. Code 7-2502.02(a) for the proposition that the “only weapons that cannot be registered are sawed-off shotguns, machine guns, short barreled rifles, and pistols....” Id. (emphasis added). The implication is that the military training interest is still effectively preserved, because D.C. residents remain free to own “rifles and shotguns.”

But in truth, D.C. residents are also barred from possessing a wide swath of common rifles, including many of the rifles most valuable for military familiarization and training. I believe Justice Breyer and his clerks were misled by the plain language of the D.C. Code, and assumed that when D.C. law prohibits the possession of "machine guns," it means by that term ... well, machine guns.

Not so. D.C.'s bizarre definition of "machine gun" includes, inter alia, any semi-automatic (i.e., self-loading, one shot at a time, incapable of automatic fire) rifle or shotgun that contains, or can accept, a magazine holding 12 rounds or more. See D.C. Code 7-2501.01(10)(B) ("any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot ... [s]emiautomatically, more than 12 shots without manual reloading"). As I have suggested before, defining a semi-automatic as a “machine gun” is comparable to defining a married man as a "bachelor."

For perspective, this definition classifies as "machine guns" many of the basic, decades-old .22 rimfire rifles made in the millions by Marlin and Ruger, and sold today for less than $250 at sporting goods stores. Indeed, Marlin's Model 60 was sold for years, under various brand names, at department stores like Montgomery Ward. These affordable, quiet, soft-recoiling rifles are excellent for training new shooters. But you can fit fourteen little .22 cartridges into the Marlin's tube, so it is a banned “machine gun” under D.C. law.

It goes without saying, too, that virtually every magazine-fed, semiautomatic rifle of military pattern is prohibited under D.C. law, even the 1940s-vintage M1 Carbine, since they will accept magazines larger than 11 rounds. Also completely prohibited are all of the semi-auto, civilian AR-15 versions of the select-fire M4/M16 rifles that have been standard issue to American troops since the 1960s.

Where does that leave the Breyer dissent? The "primary" objective of the right to arms, he argues, is furthering the militia, and he concedes that this includes training with weapons by individual citizens. Yet of the three categories of military small arms -- "rifles, pistols, and shotguns" -- D.C. not only bans pistols entirely, but also, through its definition of "machine gun," bans a huge number of rifles, including many common .22s, and including precisely the category of detachable magazine-fed, centerfire rifles that would be most relevant and useful for military familiarization in the latter half of the 20th century -- let alone the century we live in.

Surely the "proportionality" of the total ban on handguns, from the standpoint of military training and readiness, must be gauged in the shadow of the profound restrictions that D.C. also imposes on possession of modern rifles. Furthermore, Justice Breyer has already conceded that the D.C. handgun ban also burdens the separate interest in using firearms for self-defense. That is a lot of burdening. I think we must conclude that the argument attempted in the Breyer dissent fails even by its own terms. If D.C.'s actual pre-Heller gun laws are to be defended against Second Amendment attack, the defense cannot rest on Justice Breyer's "interest-balancing" argument.

So should this count as another Supreme Court mistake? I suggest so. There is no acknowledgment in Justice Breyer's opinion of the effect that D.C.'s deceptive definition of "machine gun" has on his argument. If Justice Breyer did know what "machine gun" meant under D.C. law, then he ought to have acknowledged this in his dissent, to avoid confusing the tens of thousands of readers that could be expected for the Heller opinions -- especially since his argument stressed that, unlike "machine guns," "rifles and shotguns" could be owned in D.C. But I see no reason to think this was the case. It is much more likely that Justice Breyer and his clerks simply missed this point; they took the D.C. Code at face value, assumed that "machine gun" had the very different meaning that it has in ordinary language (and in federal law), and did not look up the definition.

Posted by Mike O'Shea at 05:20 PM | Comments (5) | TrackBack

Legal Times Panel on ’07-’08 Term

I am in DC visiting family, and so I decided to attend the Legal Times’ panel “Sizing Up the 2007-2008 Supreme Court Term,” which was held this afternoon at Georgetown Law Center. It was an interesting panel. Tony Mauro moderated, and the speakers included Ted Cruz (who until recently was the solicitor general of Texas and now is at Morgan, Lewis & Bockius), Walter Dellinger (O’Melveny & Duke Law School), Pattie Millett (who recently left the US Solicitor General’s Office to join Tom Goldstein at Akin Gump’s Supreme Court practice), and Malcolm Stewart (a veteran assistant in the US Solicitor General’s Office whose oral argument recordings I’ve used to teach my students about appellate advocacy).

There were several great moments at the panel, including Stewart’s description of “the Two Courts.” The better-known Supreme Court issues 3 or 4 controversial decisions every term, often by a 5-4 margin, and its actions are reported closely by the NY Times and the Washington Post. The other Supreme Court decides more technical questions, such as the interpretation of statutes and federal rules, and its opinions remain largely unknown to the general public though they are in many ways the more important cases for the legal profession. Columnist James J. Kilpatrick once expressed this same concept in the following way ---“For every Roe vs. Wade, there are dozens of cases like Unitherm Food Systems Inc. vs. Swift-Eckrich Inc.”

Another highlight of the panel involved an interaction between Dellinger and Cruz. Cruz, who represented several amici in Kennedy v. Louisiana, was discussing the recent news that the majority opinion and the parties’ briefs failed to mention that US military law provides for the death penalty in child rape cases. (A story I blogged about last week.) Dellinger interrupted to observe that the media shouldn’t focus on a failing by the Court or the parties, but rather that Congress passed a bill, which the President signed, and yet no one in the legislature or in the White House seemed to realize that this provision existed. (Dellinger pointed out that the provision was introduced as a floor amendment to a 400+ page appropriations bill.) While the two panelists may have disagreed about whether the Court reached the correct result in Kennedy, they agreed that this obscure military law illustrated the absurdity in the Court’s death penalty consensus jurisprudence. Counting states and laws says little about public consensus when no one seems to know what laws are in place.

Posted by Carissa Hessick at 12:48 AM | Comments (5) | TrackBack

More Coverage on Factual Error in Child Rape Decision

There has been some interesting fall-out from the NY Times article I blogged about yesterday. DOJ has admitted that it erred in failing to file a brief in support of the Kentucky statute that proscribed the death penalty for child rape, and it has indicated that it may support a petition from the state of Louisiana to rehear the case. More coverage and commentary can be found in the New York Times, as well as at the Volokh Conspiracy and at Doug Berman’s Sentencing Law & Policy.

Posted by Carissa Hessick at 05:19 PM | Comments (0) | TrackBack

The NYT on the UCMJ

In today’s New York Times, Linda Greenhouse points out what appears to be a factual error in the Kennedy v. Louisiana majority opinion. Justice Kennedy’s majority said that 30 of the 36 states with the death penalty and the federal government do not proscribe the death penalty for child rape. But the Uniform Code of Military Justice was revised by Congress in 2006 to add child rape to the military death penalty. Greenhouse notes that this provision of military law escaped the attention not only of the members of the Court, but also the attention of the ten parties who filed briefs in the case.

In addition to questioning why no one in the federal government brought the UCMJ provision to the attention of the Court, Greenhouse explores how the parties’ research failed to uncover the provision. Jeff Fisher’s explanation of how his appellate team found an older provision but not this more modern one reads like an ad for Shepards. And lawyers for the state of Louisiana, the party that would have been helped by the information, are obviously ducking the Times’ calls.

I have long suspected that non-military lawyers and legal commenters essentially ignore U.S. military law. In the wake of the 2004 decision in Blakely v. Washington, for example, there were several articles discussing the feasibility of jury sentencing, but I didn’t see any mention of the fact that sentences at courts-martial are voted on by the military equivalent of a jury. More recently, I have been working on a project about the historical development of the crime of burglary in the United States. None of the law review articles I’ve read for the project mention that, unlike all other U.S. jurisdictions, the UCMJ retains the old common law definitions of burglary and nighttime.

One explanation for the scant attention paid to U.S. military law may be the difficulty associated with research. Title 10 of the U.S. Code is devoted to military law, but many relevant provisions are codified in the Manual for Courts-Martial rather than in the code. And while the Manual is available on Westlaw, I had better success performing my searches using a complete copy of the Manual I found online --- in fact, the relevant provision I was looking for didn’t appear in my WL search. So for those of you who are conducting a 50 state survey --- whether for the Court or for a law review article --- here is a copy of the Manual for Courts-Martial. Of course, some might say that non-military briefs and law review articles need not address military law because it is sui generis. But so are the laws of the various states, to some extent.

Posted by Carissa Hessick at 12:08 PM | Comments (1) | TrackBack

Meet Your Second Amendment: D.C. v. Heller Decided (Updated)

It's a momentous day. With the Supreme Court's landmark Second Amendment decision this morning in District of Columbia v. Heller, American constitutional law has just gained a newly enforceable, individual liberty. The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table. Such laws are a violation of the U.S. Constitution.

In this post, I want to look back at the issues I discussed in my earlier CoOp post, "What to Watch for in D.C. v. Heller," and offer some brief thoughts about how they featured in Justice Scalia's opinion for the Court. Before I begin, let me recommend Larry Solum's typically thoughtful analysis of many of the interpretive techniques employed in the Heller opinion.

ISSUES

1. Recognition of an Individual Right to Arms: You bet. The right is recognized as squarely individual; the "militia" referred to in the preface was and is a popular militia. The Court rejects any requirement of participation in the National Guard or another organized militia.

2. What Purposes Does the Right Protect? Primarily private purposes. Although the Court acknowledges in passing that an armed populace is "better able to resist tyranny," Maj. Op. at 25, the great weight of its discussion of the right to arms focuses on "the core lawful purpose of self-defense." Id. at 58. See also id. at 63 (Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.")

3. Whither Miller? This is an extremely interesting discussion. Maj. Op. 49-53, 55-56. The Court does not reject its opaque 1939 precedent in U.S. v. Miller, but dismisses the contention that Miller limited the right to arms solely to "military purposes." It describes Miller as "stand[ing] only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." Id. at 50. There is a measured, but distinct rebuke of the decades of lower federal court opinions that "overread Miller," a "virtually unreasoned case," to toss aside claims to an enforceable Second Amendment right to arms. But the Court does some interpretive recasting of Miller, as I predicted: Miller's "in common use" criterion becomes " 'in common use at the time' for lawful purposes like self-defense." Id. at 52. Thus machineguns can be excluded from constitutional protection, even though they were obviously "useful in warfare in 1939." Id.

In the same vein, the Court recognizes a historical exception to the right to arms that applies to "dangerous and unusual weapons," Id. at 55. (That conjunctive form may prove important -- dangerous and unusual.) On the other hand, the Court stresses that defensive weapons that did not exist in 1791 may nevertheless be protected today. The basic category of "Arms" appears to be very broad: "[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Id. at 8. The Court approvingly cites broad founding-era definitions of "Arms" such as Timothy Cunningham's (1771): "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another."

Notice how powerfully this language suggests a Second Amendment right to possess, not only firearms, but also other common personal defensive weapons such as knives and pepper spray.

4. What Level of Scrutiny Applies? Intermediate or strict scrutiny. They're not saying which yet. The key passage is Maj. Op. at 56 & n.27. The Court says the D.C. handgun ban violates "any of the standards of scrutiny that we have applied to enumerated constitutional rights." A footnote cites the classic discussion of heightened scrutiny in U.S. v. Carolene Products Co. (1938). Id. at 56 n.27. This discussion leaves lower courts free to conclude, by analogy to First Amendment case law, that strict scrutiny applies to Second Amendment claims, but they also would not violate the import of the Heller opinion by adopting intermediate scrutiny instead.

5. Will the Court Actually Strike Down the Challenged Provisions of D.C. Law? Yes. The Court struck down the handgun ban; and also the requirement that firearms in the home be kept locked and unloaded/disassembled -- to the extent the latter requirement prohibits citizens from "rendering ... firearm[s] in the home operable for the purpose of immediate self-defense." Id. at 64. I predict litigation about the limits of that "immediate self-defense" proviso. I could wish that the Court had simply said, look, Heller can't realistically expect to defend himself against criminal violence in the home unless he is allowed to have one firearm that is loaded and ready to be used in self-defense, so the Second Amendment protects his right, not merely to regularly carry a handgun in his home, but to regularly carry a loaded handgun in his home. The Court did not squarely say that, so the lower courts may have to piece out what level of readiness and access is realistically required for "immediate self-defense." In making that judgment, they will need to keep in mind the Supreme Court's vigorous affirmations of the right to home self-defense throughout the Heller opinion.

6. Are "Keep" and "Bear" Separate Rights? The two verbs receive separate weight in the Court's analysis. One of the big points of contention between the majority and the dissenters is whether "keep and bear arms" describes "a unitary right to possess arms if needed for military activities and ... use them in conjunction with military activities," Stevens Diss. at 11 (punctuation omitted), or instead a right to "have weapons," as well as a right to "carry" them for defensive purposes. Justice Scalia (the author of Crawford v. Washington) rather intriguingly phrases this as a right to use arms for "confrontation." Maj. Op. at 8, 10.

So what is the scope of the right to "bear" arms, above and beyond the right to "keep" them? It clearly includes the right to "use [arms] for the core lawful purpose of self-defense" in the home. Id. at 58. What about carrying them outside of the home? Justice Scalia notes that 19th-century state courts regularly upheld prohibitions on "carrying concealed weapons." Id. at 54. The opinion does not mention that many state courts hold that the right to bear arms obligates governments to allow some form of weapons carry -- if concealed carry is banned, then "open carry" (holstered on the hip) must be allowed, and vice versa.. After Heller, It is open for gun rights proponents to argue that the right to carry either open or concealed (depending on local law) is entitled to constitutional protection - particularly if the Second Amendment gets incorporated against the states.

7. Blocs of Justices. Several surprises here. I expected one or more separate concurrences to the majority opinion, but there were none. It seems the five majority Justices put great store on speaking through a single, clear opinion of the Court. There was also no rank-breaking or diversity of approach among the liberal Justices. All four joined Justice Stevens's dissent arguing that the Second Amendment does not protect arms possession for private purposes, and Justice Breyer's dissent arguing that, even if self-defense is a protected interest, the D.C. handgun ban is reasonable and constitutional.

8. Hints About Other Federal Gun Laws? As predicted, the Court expressly distinguished the federal ban on post-1986 machine guns, 18 U.S.C. 922(o), and the federal felon-in-possession ban, 18 U.S.C. 922(g)(1), indicating that both are safe from constitutional challenge. Maj. Op. at 52-55. The Court extended similar reassurances about laws prohibiting "the carrying of firearms in sensitive places such as schools and governments buildings," id. at 54, and regulations of commercial purchases such as background checks. Id. at 54-55.

9. Hints About Incorporation: Another punt to the lower courts, though the Supreme Court included somewhat more pro-incorporation discussion than I expected. In its historical analysis of evidence of the public understanding of the Second Amendment, the Court discussed at length the legislative treatment of the right to arms in the aftermath of the Civil War. See Maj. Op. at 41-44 (discussing, inter alia, the history of black disarmament in the Reconstruction South, and the references to the right to arms in the Freedmen's Bureau Act of 1866). This is precisely the sort of historical evidence relied upon by scholars and researchers who argue that the Fourteenth Amendment was intended to incorporate the right to arms against the states. The Court's one express mention of the incorporation issue comes in an exquisitely ambiguous footnote:

With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.

Id. at 48 n.23 (emphasis added) (citations omitted). So on the one hand the Court says that the Fourteenth Amendment inquiry is "required" by its later (20th century) incorporation decisions, yet it also noted that post-Cruikshank, 19th-century cases reaffirmed that the Second was not incorporated -- but those cases did not perform the "required" inquiry either! I read this as a very comprehensive punt to the lower courts; they can either take up anew the question of Second Amendment incorporation in coming cases -- "the Court instructed us that this inquiry is 'required'!" -- or they can defer to Presser et al. and refuse to apply the "selective incorporation" framework to the Second Amendment until the Supremes officially overrule those cases -- "the Court noted that later decisions 'reaffirmed' Cruikshank!" A district court judge or circuit court panel could choose either path, and still plausibly claim to be following Heller.

10. The companion petition on the issue of standing, Parker v. D.C. Today the Court relisted and distributed for conference the petition in Parker, which relates to the potential standing of the five other plaintiffs (besides Dick Heller) who were originally included in the litigation. I predict some action on Parker tomorrow in the Court's final round of orders before its summer recess -- probably a "GVR" order that will kick the issue of the other plaintiffs' standing back down to the D.C. federal courts to reconsider in light of the Heller opinion.

MEDIA NOTE: I've been interviewed by National Public Radio about the Heller decision; the segment should appear on NPR's All Things Considered this afternoon or Morning Edition tomorrow a.m. Audio will be available here. I'll be interviewed tonight on NRA News's "Cam and Company" at 10:40 p.m. EST. I'll be discussing how to choose a good car wax.

Posted by Mike O'Shea at 03:03 PM | Comments (14) | TrackBack

So Let's Say Justice Scalia Writes D.C. v. Heller ...

Tomorrow may be the big day. (Or we might have to wait again. At least I'm improving my calcium intake.) Court-watchers have noticed that, with the issuance of yesterday's opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court's March sitting is D.C. v. Heller, and the only Justice who hasn't written any majority opinions from that sitting is ... Justice Antonin Scalia. Tom Goldstein thinks it's "exceptionally likely" that Scalia was assigned to write the Court's lead opinion in the most important Second Amendment case in American history.

What could that mean for the decision in Heller? As I'll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news -- at least in the short term -- for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.

In the Heller oral argument, Justice Scalia was the clearest voice in favor of the broad individual rights view of the Second Amendment -- what pro-rights scholars often call the "Standard Model." He emphatically rejected the various "collective rights" theories of the Second Amendment, under which it protects only a prerogative of state governments rather than a right of individuals. Justice Scalia also brought up Blackstone's emphasis on the right to arms as a necessary adjunct of the right of self-defense, and suggested that D.C.'s high crime rates, far from supporting gun prohibition, were instead "[a]ll the more reason to allow a homeowner to have a handgun." Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in "common use" at this time -- though not arms that are "uncommon" for private citizens, such as machine guns.

(ASIDE: Note that under this view, while full-auto M-4s and M-16s may be unprotected by the Second Amendment, there would be powerful arguments that popular, modern semi-automatic rifles like the AR-15 -- a vastly more common firearm in private hands today than machine guns -- are indeed protected arms "in common use," so that an attempt by Congress to renew the expired federal semi-auto "assault weapons" ban could be held unconstitutional.)

Justice Scalia was also the strongest voice in oral argument for applying strict scrutiny to laws that threaten Second Amendment interests, as the Court does with many types of laws that impinge on First Amendment freedoms.

At one point in the argument Scalia, a hunter, displayed his personal familiarity with America's legitimate gun culture. Pressing counsel for D.C. on a hypothetical involving the constitutionality of a limit on the number of guns individuals could own, Justice Scalia suggested that Americans are entitled to own a wide range of guns for different needs -- even name-checking a couple of popular rifle cartridges: "You mean you can't have ... you know, a turkey gun and a duck gun and a .30-06 and a .270 and ... different hunting guns for different [purposes]?"

Thus, as a limitation on the federal government -- not just D.C., but also Congress, the President, and the BATFE -- a Scalia-penned majority opinion in Heller is likely to give Second Amendment advocates all that they can realistically expect from this Court.

The question of incorporation is thornier. Justice Scalia wrote about the Second Amendment in his stimulating book A Matter of Interpretation: Federal Courts and the Law (1997). (I was reminded of this passage by a recent discussion thread on a popular firearms forum.) There, Scalia seemed to embrace a broad individual-rights view of the Amendment, consistent with his remarks a decade later in the Heller argument. But he also seemed skeptical about incorporating the Amendment:

[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense. ... Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. ... [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.

Id. at 136-37 n.13 (emphasis added).

Hmm. That's literally true as far as it goes; just Barron v. Baltimore. But far more to the point: Is the Second Amendment plus the Fourteenth Amendment a "limitation upon arms control by the states"? Perhaps Scalia was just being fastidious with his language in the quoted passage -- expressing the point that, strictly speaking, it is not the provisions of the Bill of Rights that are applicable to the states, but rather the Fourteenth Amendment, which has been interpreted as incorporating the content of (most of) those amendments. Or perhaps he really meant to signal skepticism about Second Amendment incorporation.

If an individual right prevails in Heller, it's not going to be easy to avoid the incorporation of the right to arms, no matter how the Court chooses to approach it. We already have about a century's worth of precedents that gradually incorporated most of the individual amendments in the Bill of Rights against the states via the Fourteenth Amendment's Due Process Clause. The test for whether an amendment qualifies for "selective incorporation" under this approach stresses several factors, such as whether the right has an English antecedent; is widely protected in state constitutions; and continues to enjoy strong support today. Suffice to say that the right to arms satisfies these factors -- more so than many of the rights the Court has already incorporated.

Alternately, one could take Justice Thomas's (and Justice Hugo Black's) more originalist approach to incorporation, and ask whether the right to arms is a "privilege or immunity" that was understood to be protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Here again, there are substantial historical arguments for incorporating some form of the right to arms, as scholars such as Akhil Amar and Stephen Halbrook have recognized -- again, as strong or stronger than the arguments for other rights the Court has previously incorporated.

Justice Scalia has not previously sought to undo the 20th-century consensus on incorporation. Some of his most famous opinions, such as Crawford v. Washington (2004), which refurbished the Sixth Amendment's Confrontation Clause, are premised upon the incorporation of the Bill of Rights against the states. (Justice Thomas has suggested de-incorporating some Bill of Rights guarantees, such as the Establishment Clause, but still appears to support a substantial amount of incorporation of individual rights against the states.)

In the long term, some form of Second Amendment incorporation is probably inevitable. That issue is not on the table in Heller, which deals with the District of Columbia rather than a state, but as I've suggested before, the Court can choose to drop hints about the incorporation question in its opinion. The opinion may be circumspect about this if Justice Scalia writes it. We'll see.

A last thought: Many are surprised at the prospect of Justice Scalia drafting the majority opinion in Heller. Scalia holds strong views and is sometimes reluctant to temper his expression of them. This can cause him to lose votes when he drafts a would-be majority opinion. If there is a pro-rights majority, one might have expected Chief Justice Roberts to assign the opinion to himself or Justice Kennedy in order to hold five votes in this landmark case.

It's true: there is a risk of a Scalia-written plurality accompanied by a separate (and controlling) Kennedy concurrence in the judgment. Yet Scalia sometimes holds his Court -- even in important and controversial cases. Against the familiar examples like Harmelin and Michael H., where, on a key point, Scalia's uncompromising opinions merely announced the judgment of a fractured Court, we must balance the cases like Kyllo -- a calm, measured opinion that held five firm votes in an important Fourth Amendment case. Nor are all of Scalia's successful majority opinions so modestly written. Printz v. U.S. and Crawford v. Washington were far-reaching.

I look forward to the Justices rendering most of my prognostications about Heller moot by deciding the case -- hopefully tomorrow.

Posted by Mike O'Shea at 05:53 PM | Comments (59) | TrackBack

What to Watch For in D.C. v. Heller

The Supreme Court’s next scheduled opinion day, Monday, June 16, could yield a decision in the landmark Second Amendment case of D.C. v. Heller. My guess is that we’ll see Heller on or after June 23, at the very end of the Term. I guess that simply because Heller is the biggest case of the year, it raises wide-open constitutional issues, and it was argued late in the Term, in mid-March.

Either way, here are key points to look for when the opinions arrive. As you’ll see, many of them only come into play if a majority of the Court interprets the Second Amendment as securing an individual constitutional right to arms. Since I think this is the more likely (but by no means guaranteed!) outcome, I’ll run with that assumption in much of what follows.

1. Recognition of an Individual Right to Arms? The threshold issue. Will the Court recognize a genuinely individual right to arms, i.e., one that is not contingent upon participation in a state-regulated military organization? Like most observers, I interpreted the oral argument as revealing that there were between five and seven votes among the Justices for a genuine individual right.

2. What Purposes Does the Right Protect? Privately owned firearms can potentially serve a variety of legitimate purposes. Some of these are civic purposes: deterring tyranny; protecting against invasion or internal disorder; promoting military readiness through individual practice with firearms. Others are private, personal purposes: self-defense against criminal violence; hunting; participating in the shooting sports. Assuming that the Court recognizes an individual Second Amendment right to arms, will it interpret that right in a way that stresses protection for the private purposes of citizen arms — as urged by the provocative amicus brief of Professor Nelson Lund? Or will it emphasize the civic purposes of citizen arms — as it seemed to do in the 1939 Miller decision? Or will it (correctly, in my view) embrace both kinds of purposes, as do many state constitutional decisions? The answer to this question will greatly influence the success of future Second Amendment challenges to restrictive gun legislation. ...

Some kinds of restrictions (such as D.C.’s draconian “safe storage” requirements that do not allow a resident to keep any firearm in a usable defensive condition in her home) impinge most strongly on the private purposes of gun ownership. Others, such as bans on modern semiautomatic rifles, seem more likely to come into tension with the civic purposes of gun ownership, to the extent those are recognized as part of the Second Amendment.

3. Whither Miller? In the same vein, it will be fascinating to see how the Heller Court handles the 69-year-old opinion in U.S. v. Miller. Miller is compatible with an individual right to arms that stresses the civic purposes of arms ownership, and the concept of the citizen militia and the “ordinary military equipment” pertaining to it. Many members of the Court are clearly uneasy at the prospect of a strong interpretation of Miller, which one might boil down crudely into the formula: “machine guns for the people!”. In oral argument in Heller, Justice Kennedy openly questioned whether Miller should continue to provide the guiding framework for Second Amendment adjudication. I predict that the Court will put some distance between itself and a strict reading of Miller, perhaps through some agile recasting of the earlier opinion.

4. What Level of Scrutiny Applies? The Heller briefing featured an intense debate about whether Second Amendment challenges implicate strict scrutiny, or some more deferential standard of review. Again, the answer to this question will directly affect Heller's future value as a litigating tool to challenge restrictive gun legislation. One possibility (suggested by Chief Justice Roberts during the oral argument) is that the Court will not squarely resolve this issue, but will instead give us an opinion that suggests a heightened, but unspecified, form of scrutiny, leaving it to lower courts and later cases to flesh out many of the details of the right. This approach might recall the famously open-textured opinion in Lawrence v. Texas, which recognized an unenumerated substantive due process right to adult noncommercial consensual sex.

5. Will the Court Actually Strike Down the Challenged Provisions of D.C. Law? Whatever doctrinal moves a pro-rights Heller opinion might make, the bottom-line result will be vital in determining the decision’s effect in the lower courts. Lower federal courts did not begin to take the limits of the Commerce Clause even semi-seriously until the Supreme Court actually started striking down laws that exceeded them, in U.S. v. Lopez and U.S. v. Morrison. Similarly, as Brannon Denning has discussed, most lower federal courts have traditionally been hostile to Second Amendment claims — hostile well beyond the limits suggested by the Supreme Court’s ambiguous 1939 Miller decision. The practical force of the Second Amendment right announced in Heller (if that is what happens) may depend heavily on whether the Court is willing to reject the Solicitor General’s call for a remand, and actually hold unconstitutional the D.C. handgun ban, the ban on functional firearms in the home, or all the challenged provisions. Presenting the lower courts with a square holding of unconstitutionality would make clear that the Second Amendment is now a real part of American constitutional law.

6. Are “Keep” and “Bear” Separate Rights? State constitutional right-to-arms opinions often distinguish the right to “keep” arms from the right to “bear” them, concluding that bearing arms for use outside the home permits a greater level of regulation than keeping them on one’s own property. For example, in a 2004 decision, the Rhode Island Supreme Court described “the keeping of arms” at an individual’s “home or business” as “the sine qua non of the individual right” to arms.

The D.C. Circuit’s opinion below suggested that the challenged D.C. provisions violated Mr. Heller’s Second Amendment right to “keep” arms. There was an interesting exchange on this point during the Heller oral argument, when Solicitor General Clement refused to accept Justice Stevens’s insistence that “keep and bear” should be interpreted as a unitary provision.

7. Blocs of Justices. While I believe that the Court will be able to generate a majority opinion in Heller, I suspect that the Justices will use concurring and/or dissenting opinions to express different views on how to interpret the right to arms.

I expect Justices Scalia and Thomas to take a strong pro-rights stance, endorsing a version of Miller than gives broad protection to those militia-useful firearms that are commonly owned by Americans today, and protects both civic and private purposes.

I think Justice Kennedy (possibly joined by Chief Justice Roberts and Justice Alito) is likely to endorse a conception of the right to arms that distances itself from Miller, and focuses more narrowly on private purposes. This might allow legislatures somewhat more latitude to regulate the types of firearms owned than the than the view I’m (tentiatively) ascribing to Scalia, Thomas, and Miller. But it would still require government to respect a range of traditional uses for private arms, definitely including self-defense, and possibly hunting and recreation as well. I predict either Justice Kennedy or Chief Justice Roberts will write the Court’s opinion, and this bloc’s view of the Second Amendment is likely to govern the case.

In oral argument, Justice Breyer seemed interested in a conception of the right to arms that would protect individual arms ownership to some degree, but would focus tightly on civic purposes, and therefore allow potential militiamen to keep ordinary rifles and shotguns in order to practice with them. However, it seemed that Breyer’s conception would not give much weight to private purposes for arms ownership, such as self-defense. Justice Ginsburg’s views were hard to ascertain in the oral argument, but if forced to guess, I think she may embrace Justice Breyer’s view.

Finally, Justice Stevens seemed to support the formerly received, 1970s-vintage view of the Second Amendment, under which it protects no sort of individual right to possess arms that is enforceable apart from the say-so of a state government and an organized state military force. Justice Souter’s unrelentingly negative questioning in oral argument leads me to think he will join Justice Stevens’s view.

8. Hints About Other Federal Gun Laws? If the Court recognizes an individual right to arms, it may use dicta in Heller to stave off future challenges to certain federal gun laws by stressing that these laws are not called into question by the holding. It’s very likely that any pro-rights opinion will say something to distinguish the federal machinegun ban, 18 U.S.C. § 922(o), the federal ban on possession of firearms by convicted felons, 18 U.S.C. § 922(g)(1), and perhaps the federal restrictions on armor-piercing handgun ammunition, 18 U.S.C. §§ 921(a)(17)(B), 922(a)(7)-(8), which were brought up at oral argument.

Other, less likely candidates for distinguishing dicta include so-called “assault weapon” bans on modern semiautomatic firearms; the controversial federal “Lautenberg Amendment,” 18 U.S.C. § 922(g)(9), which strips individuals convicted of certain misdemeanors of the right to arms; and the very broad federal Gun-Free School Zones Act, 18 U.S.C. § 922(q) (re-enacted in 1996 after an earlier version was invalidated in U.S. v. Lopez). Since I do think that at least some of the federal statutes in the latter list are violative of the Second Amendment, I hope that the Court will not pre-judge their constitutionality in its Heller opinion.

9. Hints About Incorporation? If D.C.’s handgun ban is held unconstitutional in Heller (as it should be), the city of Chicago’s essentially identical ban on handguns will offer a prime target for a test case designed to present the issue of Second Amendment incorporation. A lower court that considers the issue in light of the Supreme Court’s post-1960 “selective incorporation” precedents will have a very difficult time avoiding the incorporation of the Second Amendment, at least in some form, against state and local governments. The only way lower courts might be able to avoid that conclusion is by cleaving to nineteenth century Supreme Court opinions like Presser v. Illinois and U.S. v. Cruikshank that declined to incorporate the Second Amendment, just as the Court at that time declined to incorporate the other provisions of the Bill of Rights. The Court repeatedly rejected this approach during the twentieth century.

So it will be interesting to see whether Heller nods to incorporation — perhaps in a passage that acknowledges the issue, reserves decision on it, and notes that the governing law of incorporation has changed dramatically since Presser and Cruikshank were decided. Such an observation would help encourage the lower courts to consider the issue afresh.

10. A GVR in the companion case? The Supreme Court litigation in D.C. v. Heller has been so rich and important that one forgets about the accompanying cross-petition for certiorari, Parker v. D.C. The Heller litigation originally involved six different plaintiffs, each raising slightly different challenges to D.C.'s gun laws. However, the D.C. Circuit panel dismissed five of the six plaintiffs (all but Dick Heller) under an unusual standing doctrine that the circuit had adopted in an earlier Second Amendment case. This is why the case was recaptioned from Parker to Heller when it reached the Supreme Court.

When the District of Columbia petitioned the Supreme Court for review of the D.C. Circuit's opinion granting judgment in Mr. Heller's favor, plaintiffs' counsel cross-petitioned for review of the denial of standing to the other five plaintiffs. The cert petition on the standing issue, still captioned Parker, has been waiting in limbo on the Justices' desks for seven months, while the Court has granted cert in Heller and held briefing and argument on the Second Amendment merits issue.

I predict that if the Court holds for Mr. Heller on the Second Amendment issue, it will consider this to be quite enough work for one day without also wading into the tangled complexities of standing doctrine. It will "GVR" (summarily Grant, Vacate, and Remand) the Parker part of the litigation back to the D.C. Circuit, which will have to reconsider the question of Second Amendment standing for the other plaintiffs, in light of what the Court says about the nature of the Second Amendment right in Heller.

Posted by Mike O'Shea at 12:02 AM | Comments (70) | TrackBack

Confusion in United States v. Santos

The Supreme Court this past Monday handed down its decision in United States v. Santos, a case that turns on whether the phrase “proceeds of some form of unlawful activity” in the federal money-laundering statute, 18 U.S.C. §1956(a)(1), means “profits” (net income) from the unlawful activity or simply any “receipts” (payments) from the unlawful activity. (The unlawful activity at issue in the case was illegal gambling). In a closely divided ruling, the Court opted for the “profits” construction. But discerning the precedential effect of the Court’s ruling is a little like trying to make sense of Alice in Wonderland. The Justice’s opinions in the case are of the by-now-familiar fractured variety: Justice Scalia authored the plurality opinion, joined by Justices Souter, Ginsburg, and Thomas — except for Part IV, in which Justice Thomas did not join; Justice Stevens concurred in the outcome reached by the plurality, but not in its reasoning; Justice Alito authored a dissenting opinion joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer; and Justice Breyer issued a separate dissent joined by no one else.

Significantly, Part IV of the plurality opinion, which Justice Thomas refused to join, focuses entirely on the plurality’s differences with Justice Stevens and ends by seeking to characterize “the stare decisis effect of Justice Stevens’ opinion” — given that his vote is necessary to the outcome of the case. Justice Stevens’ opinion parts company with the plurality because Stevens refuses to construe the word “proceeds” in the federal money laundering statute always to mean “profits” from the underlying predicate crime. Rather, he argues that “proceeds” can mean either “profits” or “receipts,” depending on the unlawful activity at issue. Characteristically for Justice Stevens, the determinative factor is Congress’ intent regarding the particular unlawful activity at issue. In the case of illegal gambling, however, Justice Stevens is unable to discover any specific legislative intent about whether “proceeds” was meant to cover merely “profits” or also “receipts.” So, faced with (1) “a lack of legislative history speaking to the definition of ‘proceeds’ when operating a gambling business is the ‘specified unlawful activity’” and (2) his “conviction” that “Congress could not have intended” the four-fold sentence enhancement (from 5 to 20 years) that would result from treating the use of gambling receipts to pay the expenses of operating an illegal gambling business as a separate offense (money laundering) from the operation of the gambling business itself (underlying offense), Justice Stevens agrees with the plurality that the Rule of Lenity should tip the scales in favor of interpreting “proceeds” to mean “profits” in this case. Got that?

Given that Justice Stevens’ vote was necessary to the outcome in the case, his in-between opinion leaves considerable doubt as to the precise holding of the case. Justice Scalia, joined by Justices Souter and Ginsburg, argues that Justice Stevens’ construction narrows the Court’s holding down to: “Proceeds” means “profits” when there is no legislative history to the contrary. But only three Justices accept this characterization of the case’s precedential holding! Justice Thomas pointedly, though silently, refuses to join it. Justice Stevens, in a footnote, disavows this characterization, emphasizing his belief that Congress could not have intended the perverse result (four-fold enhancement) that would follow if “proceeds” were read to include “receipts” from the operation of an unlicensed gambling business. Justice Alito’s dissent, joined by Justices Kennedy, Breyer, and Chief Justice Roberts, likewise takes issue with the plurality’s characterization — arguing that five Justices (presumably counting Justice Stevens) actually agree that the term “proceeds” includes gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.

So which is it? Does “proceeds” mean “profits” when there is no legislative history to the contrary – and possibly (to be decided another day) even if there is? Or does “proceeds” mean “profits” only when a perverse sentencing disparity exists between the underlying offense and the money laundering penalty? Or is the upshot of the ruling that “proceeds” always includes gross revenues from the sale of contraband? I frankly have no idea, though I suspect that the only reliable characterization of the Court’s holding is that when the underlying predicate offense is illegal gambling, “proceeds,” for money-laundering purposes, means “profits.” That, unfortunately, does not give much guidance to lower courts, defense counsel, or prosecutors seeking to determine whether 18 U.S.C. §1956 is triggered in the context of other predicate offenses. Which conundrum almost leaves me wondering whether we shouldn’t require the Court, in cases where it issues fractured plurality opinions, to provide a separate statement joined by at least five Justices setting forth the case’s holding for future reference?

Posted by Anita S. Krishnakumar at 09:36 AM | Comments (3) | TrackBack

Cross-Examining Film

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: "Where the evidence 'captures only part of the incident and would provide a distorted view of the events at issue,' as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion." Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.

Posted by Jessica Silbey at 10:57 AM | Comments (1) | TrackBack

The “Mischief Rule” Rule and the VRA in Riley v. Kennedy

Election law experts have been quick to speculate about what the Supreme Court’s decision in Riley v. Kennedy, handed down this past Tuesday, means for the future of Section 5 (the preclearance provision) of the Voting Rights Act (VRA). Rick Pildes argues that the decision reflects a trend, which began in the 1990s, of “greater skepticism from the Court” “regarding the boundaries of the special coverage regime under Section 5 of the Act.” Rick Hasen worries that the decision bodes ill for the Court’s upcoming review of the constitutionality of the recently-renewed Section 5 in the NAMUDNO case. But what is most interesting to me, as a matter both of statutory interpretation and of election law, is Part IV of Justice Stevens’ dissenting opinion, which employs a classic Hart & Sacks Legal Process approach —the “Mischief Rule”— to argue that Section 5 preclearance should be required in a case such as this.

Before delving into this most interesting argument by Justice Stevens, a little background: VRA §5, of course, subjects certain “covered jurisdictions” (which earned that designation through a history of suppressing minority voting rights) to a presumption of bad faith behavior in election administration. It operates by freezing in place the election administration procedures in such covered jurisdictions, and requiring that such jurisdictions obtain “preclearance” from either the Justice Department (DOJ) or the District Court for the District of Columbia before they may make any changes to voting/election procedure. The typical preclearance lawsuit thus tends to involve a proposal by a state entity to implement some new change to election procedure in a covered jurisdiction, and a challenge by a minority group arguing that the proposed change will have the effect of disenfranchising minority voters. Riley turns that classic procedural posture on its head: In 1985, Alabama passed a law adopting a new election practice (changing the procedure for filling midterm vacancies on the Mobile County Commission from gubernatorial appointment to special election), obtained the preclearance required by Section 5, and held an election (in 1987). Soon thereafter, the Alabama Supreme Court invalidated the law under which the election took place on the ground that it violated the Alabama Constitution. When the next midterm vacancy arose (in 2005), the governor sought to fill it by appointment, prompting litigation. The question presented before the Supreme Court = Whether Alabama must obtain fresh preclearance in order to reinstate the election practice —i.e., gubernatorial appointment— that was in place before the special election procedure, ultimately struck down by the Alabama Supreme Court, was enacted? Does reinstatement of the gubernatorial appointment procedure constitute a change/abandonment of the special election procedure used in 1987, and thus require Section 5 preclearance?

The Supreme Court, in an opinion written by Justice Ginsburg, and joined by every Justice except Justices Stevens and Souter, answers both of these questions in the negative. The invalidated 1985 law, the Court holds, never gained “force or effect” for Section 5 purposes, and so the State’s reversion to its prior practice of gubernatorial appointment did not rank as a “change” requiring preclearance. Underlying the Court’s opinion is an overwhelming respect for the judgment by “Alabama’s highest court” declaring the 1985 Act and its special election procedure invalid under the Alabama State Constitution, and a conscious effort to limit the ruling to the peculiar facts of this case.

So, at first blush, the Court’s opinion does not seem so terribly ominous. After all, the way the Court paints the picture, the facts of Riley seem to fall at the outer-boundaries of Section 5's reach. Until, that is, one reads Justice Stevens’ dissent. The dissent makes clear that the way the Court paints the picture is itself worrisome. Leaving aside arguments over the proper application of relevant precedents, the Court ignores two powerful canons of statutory construction that point decidedly in favor of requiring preclearance in this case. First, it neglects the substantive canon (background norm) favoring liberal construction of Section 5 of the VRA (See Allen v. State Board of Elections, noting Congress’ intent to give Section 5 the “broadest possible scope,” reaching “any state enactment which altered the election law of a covered State in even a minor way”).

Second, the Court ignores the fact that election law changes worked by state courts fall squarely within the “Mischief” that the VRA was designed to correct. Although Justice Stevens does not explicitly reference the Hart and Sacks “Mischief Rule” in his dissent, it is very much a mischief argument that he is making when he insists that deference to state courts is improper in construing the VRA, because discrimination against minority voters by state courts was part of the “history of voting practices” that the VRA originally was designed to remedy. In fact, Justice Stevens’ dissent provides a classic mischief-style history lesson in the state of affairs that led to enactment of the VRA — recounting how the Alabama Supreme Court not only (1) imposed procedural obstacles in the way of minority litigants seeking to challenge local election officials’ discriminatory registration procedures, but (2) drafted and promulgated a complex registration questionnaire designed to block the registration of African-American voters. Justice Stevens’ history lesson shows that “prior to the VRA, the Alabama Supreme Court worked hand-in-hand with the Alabama Legislature to erect obstacles to African-American voting,” and makes clear that deference to state courts in covered jurisdictions thus is as out of step with Section 5 as is deference to state election boards or legislatures. In other words, the scenario at issue in Riley falls much closer to the core of Section 5 than the majority would have us think.

Why, then, this collective amnesia on the part of seven members of the Roberts Court? Well, the fear behind election law experts’ lamentations is that it is not so much amnesia that is at work, but rather a deliberate conclusion by a majority of the Justices that the original mischief the VRA was designed to remedy no longer is relevant in construing the scope of Section 5. Justice Stevens’ dissent tellingly notes that he “do[es] not mean to cast aspersions on the current members of the Alabama Supreme Court”—i.e., he does not mean to suggest that their invalidation of the 1985 law was motivated by a desire to disfranchise minority voters. Under traditional principles of statutory construction (and VRA construction in particular), he does not need to suggest anything of the kind; the Alabama Supreme Court’s history of discriminating against minority voters is enough to relieve it of any entitelement to deference from federal courts and to bring election law changes worked by its decisions within Section 5’s preclearance regime. The fact that seven members of the Court completely ignore this principle suggests that they believe the original impetus behind Section 5 (the mischief Congress sought to correct) does not matter going forward — it is almost as if the majority is engaging in a “dynamic updating” of the VRA, taking current conditions, rather than time-of-enactment conditions, into account. And if that is the case, then election law experts are correct to worry about the future of Section 5 and its preclearance mechanism (particularly given that the findings upon which Congress based its 2006 renewal of the VRA harken back to data from 1964).

Posted by Anita S. Krishnakumar at 01:01 AM | Comments (5) | TrackBack

A Reverse Clear Statement Rule?

Last week the Supreme Court issued an opinion in a seemingly straightforward statutory interpretation case, Gonzalez v. United States. At issue was whether the Federal Magistrates Act (FMA) permits magistrate judges (rather than Article III district court judges) to preside over voir dire and jury selection in a felony criminal trial if defense counsel consents to the arrangement, but absent express consent from the defendant himself. Section 636(b)(3) of the FMA states that: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The Court concluded that the statutory language and relevant precedents (Gomez v. United States and Peretz v. United States) did not bar delegation of felony jury selection and voir dire to a magistrate. But more interesting, in my view, than the outcome reached by the Court is the argument it brushed aside with little fanfare in getting there: constitutional avoidance.

It is a well-worn if not-exactly-well-loved canon of statutory construction that when a statute is susceptible of two interpretations, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court’s duty is to adopt the interpretation that steers clear of constitutional difficulties. The petitioner in this case argued that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, involving a defendant’s fundamental rights, and that interpreting the FMA to authorize waiver of this choice without the express consent of the defendant raised a question of constitutional significance. Given the canon of constitutional avoidance, he pressed the Court to require an explicit personal statement of consent before a magistrate judge may be permitted to preside over felony jury selection. The Court, however, quickly waived away this argument, insisting that no serious constitutional is raised by such a delegation of authority to a magistrate, absent a defendant's express consent, because: (1) as petitioner conceded, a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection; (2) the Article III district judge, insulated by life tenure and irreducible salary, is waiting in the wings, fully able to correct errors; (3) requiring the defendant to consent to a magistrate judge by way of an on-the-record personal statement is not dictated by precedent; and (4) such a requirement would burden the trial process. In other words, the Court relied on policy arguments to trump petitioner’s claim that felony defendants have a constitutional right to have an Article III judge preside over their trials, waivable only by the defendant personally.

This move stands in marked contrast, in my opinion, to the Roberts Court’s opinions in Rapanos v. United States and Gonzalez v. Carhart, both of which relied, at least in part, on the avoidance canon. In Rapanos, for example, the Court rejected the Army Corps of Engineers’ interpretation of the term “navigable waters” in the Clean Water Act, in part because the Corps’ expansive definition “press[ed] the envelope of constitutional validity” by eliminating “virtually all” state and local water r