Category: Supreme Court


Where’s Lexington and Concord in D.C. v. Heller?

Minute_Man_tn.JPGMike O’Shea has thoughts on tomorrow’s argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it’s often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there’s nothing else to go on.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature — people such as Samuel Adams and John Hancock — and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops’ progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I’ve described as the “paradigmatic case” of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of “the shot heard round the world.”

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Thoughts on the Eve of Argument in D.C. v. Heller

Dawn.JPG1. Cruz v. Clement. If you believe Robert Novak, the Solicitor General’s split-personality amicus brief in Heller resulted from wrangling between the Office of Legal Counsel (which favored a robust individual right) and career attorneys in DOJ (who didn’t).

What made the brief disappointing to gun rights supporters was not the DOJ’s defense of the constitutionality of current federal gun control statutes — what else to expect? — but that the brief didn’t even concede the unconstitutionality of D.C.’s flat ban on handguns and draconian restrictions on the use of long guns for self-defense. Instead, it asked the Supreme Court to reverse and remand the D.C. Circuit’s judgment to the lower courts for more analysis and/or factfinding.

You can imagine the effect of that request on those who have waited decades for a moment when the Supreme Court finally seems poised to render a square decision applying the Second Amendment right to arms. If DOJ simply wanted to defend existing federal laws, it could have filed a brief that asked the Court to adopt a deferential standard of review (to protect existing federal statutes from attack), but also to affirm the D.C. Circuit’s judgment, on the ground that D.C.’s challenged gun laws fail any level of heightened constitutional scrutiny. Most gun rights proponents would still disagree with the call for deferential scrutiny, but the reaction would have been a lot more muted absent the call for remand.

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The Supreme Court is Open for Business

Doug Kendall argues that a lot of recent big Supreme Court cases share only an ideological, and not a legal, consistency:

It is extremely hard to reconcile what the court has done in cause-of-action cases like Stoneridge with its approach to pre-emption cases like Rowe, Riegel, and Preston. In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn’t crystal-clear, potential plaintiffs are out of luck. But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress’ part, ruling that federal law pushes aside state actions or remedies when it’s not at all certain that’s what Congress so intended. There’s one thing these approaches do have in common: They both favor business interests.

Is the Supreme Court using law as a means to an end? As always, comments are open for a less skeptical interpretation. The politics of Supreme Court nominations over the past few years remind me of David Kuo’s book Tempting Faith, which argued that while cultural issues may be on the surface, the biggest political initiatives in the executive branch have been economic. Perhaps the same could be said of the judicial branch.


The Department of Justice’s Override of the Alabama Supreme Court

Can officials in the Department of Justice charged with enforcing the Voting Rights Act require a state to comply with a local ordinance that the state’s highest court has held violates the state constitution? There is an interesting case rife with federalism issues scheduled for argument before the Supreme Court later this month that raises this question. The case, Riley v. Kennedy, is somewhat complicated, so at the risk of oversimplifying somewhat, I am going to give a very pared-down version of the facts. Also, in the interest of full disclosure, I participated in a moot argument for the appellant.

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Opening the Floodgates of Litigation and Civil Rights Litigation

Floodgate_clamshell.JPGFor employee benefits law geeks like myself, the decision in LaRue v. DeWolff, Boberg, and Assocs. was a watershed moment for a Supreme Court that had been reluctant to grant private rights of action to employee participants under ERISA. Although advocates for employees have celebrated the arrival of 401(k) breach of fiduciary claims, there have been many more commentaries around the internet about how LaRue will likely “open the floodgates of litigation” and overwhelm federal courts with frivolous ERISA class actions. Some examples:

Employers with defined contribution plans will likely face increased fiduciary liability exposures after the U.S. Supreme Court ruled last week that plan participants can sue to recover individual account losses as a result of a fiduciary breach, attorneys say. – Business Insurance Magazine, Feb. 25, 2008

“It will open the door to a lot more litigation. I don’t think it will be an avalanche, but plan sponsors are definitely looking at death by a thousand cuts,” said Stephen Rosenberg, an attorney with The McCormack Firm in Boston, who blogs on ERISA issues. – Lawyers USA, March 10, 2008

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Missouri v. Holland, in Missouri

I spent the end of last week at the University if Missouri-Columbia, attending a great conference organized by Peggy McGuinness, on the (in)famous case of Missouri v. Holland. There, of course, Justice Holmes wrote for the Supreme Court, holding that Congress could enact legislation otherwise beyond its constitutional authority, in furtherance of a duly-enacted treaty obligation.

With a great line-up of panelists and a fascinating set of underlying issues to explore, we had what I thought was a fantastic day-and-a-half of discussion. In particular, and perhaps appropriately, we spent a substantial amount of time assessing the continuing significance of the decision, given the dramatic expansion of Commerce Clause authority since it was handed down in 1920. There is, of course, the “loaded-gun” notion that the very availability of the expansive authority invited by the decision constitutes a substantial threat. Likewise, one might question whether the Court’s decisions in Lopez and Morrison augur a potential revival of Missouri v. Holland as constitutional doctrine.

From my perspective, though, the most fascinating element of our discussions concerned the ways in which Missouri v. Holland might be significant, regardless of its jurisprudential force. I was struck, for example, by one participant’s recollection of an occasion on which U.S. treaty negotiators’ attempts to assert constitutionally grounded federalism constraints as a basis to resist a proposal by their foreign interlocutors were parried with invocations of Missouri v. Holland.

More broadly, I was interested to think about what continuing significance the decision has, for how we conceptualize the relationship of international, national, and state law. In the scheme of jurisdictional interaction exemplified by Missouri v. Holland, international law functions as a kind of trump card – an Ace available to the federal government to coerce state authorities. If Missouri no longer captures the political economy of U.S. federal-state relations, however, as I argue in my submission to the symposium, we might do well to reconsider that traditional conception of international law as a threat to state authority, and federalism more broadly.


Maps of the State Amici in D.C. v. Heller (plus: The State Amici and the 2004 Election)

Today thirty-one states, led by Texas, filed an amicus curiae brief in support of the respondent in the historic Second Amendment case of D.C. v. Heller. I’m pleased to say that my own state’s attorney general, Oklahoma AG Drew Edmondson, a Democrat, is among the signatories.

The Thirty-One States’ brief suggests that D.C.’s full-blown bans on constitutionally protected arms should receive strict scrutiny. 31 States Br. at 31-32. Rejecting the U.S. Solicitor General’s call for a remand, the 31 States say that the D.C. Circuit’s judgment should be affirmed in full. Id. at 36. In another passage of great interest, these States also expressly support the incorporation of the Second Amendment against the States. Id. at 23 n.6 (“the right to keep and bear arms is fundamental and so is properly subject to incorporation”).

For its part, the District of Columbia attracted a group of five states as amici (three of which have no state constitutional right to arms), as well as Puerto Rico.

That leaves fourteen states that have chosen not to participate in Heller as amici on either side.

I’ll say more in another post about the 31 States’ brief, as well as the pro-Heller amicus brief filed on Friday by an absolute majority of each House of Congress and Vice President Cheney in his capacity as President of the Senate. For now, I just wanted to post these maps of the geographical distribution of the three groups of states in Heller. I hope those intrigued with American federalism and regionalism, as I am, will enjoy the food for thought.

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The Three Steps in D.C. v. Heller

It’s a pleasure to be back at Concurring Opinions. I much enjoyed guest blogging here last summer, and the management has been kind enough to invite me back for a few months to cover firearms law issues during the pendency of District of Columbia v. Heller, the landmark Supreme Court case on the Second Amendment right to arms. I’ll cover the briefing, the oral argument on March 18, and the decision, which will probably be issued at the end of the term in June. I also hope to discuss some other firearms law topics such as ConocoPhillips v. Henry, a legal challenge to an Oklahoma law giving employees the right to store their self-defense guns in their locked cars while at work.

On to Heller. I commented on the certiorari briefing during my stint last fall with the fine folks at PrawfsBlawg. This post discusses the merits brief filed by D.C. as petitioner. We’re waiting for Mr. Heller’s merits brief next week, and then his crowd of amici in the week to follow.

The general character of the District’s merits brief is what you’d expect of a lead brief in a Supreme Court case of this magnitude — polished, efficiently written, and in many respects reflective of skilled and thoughtful advocacy. What I want to do here is consider the litigating stance of the District in light of the “pressure points” in Heller — the key moves that each side is asking the Supreme Court to make.

Here’s the question presented in Heller, which the Justices themselves drafted as part of the certiorari grant [bracketed text mine]:

Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The question suggests that the Court has its eye on the right issues. It breaks down naturally into three interpretive steps:

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The Future of Sensory Jurisprudence

eye.jpg[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we’ve made clear, our ultimate claim is not (cf. Kerr) that “Justice Scalia was privileging a conservative white male view” of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It’s a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I’m going to make a bigger claim, one which isn’t so much based on the paper or my co-authors’ views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it’s my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove’s well-known post – and subsequent highly downloaded article – about the “I’ve nothing to hide” problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence [“SE”] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: “look, it’s obvious!”

The connection between SE and surveillance is (ironically) made stark in a video … but to see it, you’ll need to read past the jump.

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The Future of Federal Courts

In an earlier post, I offered some modest praise of the AALS annual meeting, as a potential venue for legal scholars to explore topics of interest beyond their core research areas. In between my efforts to actualize that theory at the recent annual meeting, though, I also attended several sessions of quite direct interest.

Among the latter, one of my favorites was a panel organized by the Section on Federal Courts, on The Federal Courts and the International System. Besides Ernie Young, who served as moderator, the panel included A.J. Bellia, Curt Bradley, Henry Monaghan, and Trevor Morrison, as well as Sarah Cleveland, who was invited to speak for the “international law” crowd. (As Sarah pointed out, Curt is also an international law scholar, if not the designated internationalist that day.)

Much of the discussion focused on the many intersections of international law and federal jurisdiction in recent years, including the succession of enemy combatant/military commission cases, the Supreme Court’s OT 2005 decision in Sanchez-Llamas v. Oregon, and its impending decision in the fascinating case of Medellin v. Texas – a complex intertwining of international and federal courts law that only a law professor could dream up, and even then, only as an exam question. Naturally, the nature of customary international law as federal or state law was discussed as well, if only for a bit.

At Ernie’s prompting, though, the panelists also took up – in sometimes heated discussion – the necessary and appropriate content of the standard Federal Courts course, given the self-evident “internationalization” of the federal courts. To what extent, the panel explored, do international law, international courts, and international questions belong in the Federal Courts canon? Naturally, the Hart and Wechsler casebook – arguably the keeper of that canon – was a focal point for much of this discussion.

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