The Volokh Conspiracy

In Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters lack standing to defend the ballot initiative in federal court and that the federal government lacks the power to define marriage.

the court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question.

By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage—a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer—and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation’s culture wars.

I’m skeptical either judgment could command a unanimous court, and am not yet convinced Prop. 8′s supporters lack standing, but certainly agree this would be a welcome approach for the Court to take (and certainly agree that the “leading argument” against DOMA is that it exceeds the scope of federal power).

As noted below, Justice Scalia was the lone dissenter in Decker v. Northwest Environmental Defense Center.  The reason was not that Justice Scalia has decided to become the Justice Douglas of the 21st century.  Rather, it was due to his relatively newfound opposition to Auer deference (aka Seminole Rock deference), under which courts are to defer to an agency’s interpretation of its own regulation.  Justice Scalia previously expressed concerns about Auer deference in his Talk America concurrence.  In Decker, however, Justice Scalia made clear he’s gone beyond questioning Auer, and now wants to see it overturned.  As Justice Scalia summarized:

For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.”

Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency’s interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court’s deference to the agency makes the difference . . . . And respondent has asked us, if necessary, to “‘reconsider Auer.’” I believe that it is time to do so.

Justice Scalia explained his reasons for rejecting Auer deference

 The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” . . . But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. . . . The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains.

Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever—just the ipse dixit that “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” . . .

While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands. “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T.Nugent transl. 1949). . . .

Auer deference encourages agencies to be “vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures.” Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1, 11–12 (1996). Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. . . .

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

So as Justice Scalia concluded (albeit in the introduction of his opinion:

The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed.

Enough is enough.

Lest anyone assume Justice Scalia’s lone dissent indicated that the rest of the Court is content to leave Auer be, Chief Justice Roberts authored a concurring opinion, joined by Justice Alito, explaining that it would have been inappropriate to reconsider Auer deference in Decker, but that the Court should be prepared to do so in a subsequent case.

The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be appropriate to reconsider that principle in an appropriate case. But this is not that case.

Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. . . . Petitioners said don’t do it, again in a footnote. . . .

The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue.

I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.

Does this mean the Court will rush to find a case in which to reconsider Auer?  Perhaps, but the Court passed up a prior opportunity to do that just last term.  Nonetheless, it is clear that at least one justice would like to see Auer put to rest.

 

Today the Supreme Court decided Decker v. Northwest Environmental Defense Center.  By a vote of 7-1 (with Justice Breyer not participating) the Court held that the Clean Water Act and its implementing regulations do not require timber companies to obtain NPDES permits for stormwater runoff from logging roads.  The sole dissenter was Justice Scalia, who would have affirmed the decision of the U.S. Court of Appeals for the Ninth Circuit holding that NPDES permits were required.  In Justice Scalia’s view, the plain meaning of the EPA’s implementing regulations required this result, even though the EPA argued for an alternative interpretation.  So not only was Justice Scalia the only justice to support the position advocated by environmentalist groups (and the Ninth Circuit), he also rejected the interpretation advanced by the executive branch.

UPDATE: For more on the substance of Scalia’s dissent, see this post.

In addition to Jon’s observation, another noteworthy thing about Kirtsaeng is that the case was decided 6-3. But wait–the whole reason the Court took Kirtsaeng was to resolve the question the Court couldn’t reach in Costco Wholesale Corp. v. Omega, S.A., because Justice Kagan was recused and the remaining Justices were divided 4-4.

So who switched his (or her) vote? I have my guess, but obviously it is only that.

H/T: Eric White, who beat me to it.

Among the opinions the Supreme Court handed down this morning was Kirtsaeng v. John Wiley & Sons, concerning the application of the first-sale doctrine to copyrighted works sold abroad.  I’ll leave the substance of the opinion to others.  What interests me is the line-up: Justice Breyer delivered the opinion of the Court joined by the Chief Justice, and Justice Thomas, Alito, Sotomayor and Kagan.  Justice Kagan also authored a concurring opinion, joined by Justice Alito.  Justice Ginsburg dissented, joined by Justice Kennedy and in part by Justice Scalia.  This is certainly a line-up one does not see very often.

UPDATE: See also this post from John Elwood.

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional.  Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers.  If DOMA Section 3 does not serve any legitimate interest — indeed, if a sweeping federal determination of marital status is constitutionally prohibited — then Section 3 cannot be justified under any level of scrutiny that might apply under equal-protection principles.  As we express it in the summary of the argument:

Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power. This question is prior not only because DOMA cannot stand if it falls outside Congress’s authority but also because DOMA can only survive an equal-protection challenge if it serves federal interests within Congress’s legislative jurisdiction. As Chief Justice Marshall recognized in McCulloch v. Maryland, only ends “within the scope of the constitution” are “legitimate.” 17 U.S. (4 Wheat.) 316, 421 (1819). That is true regardless of the level of scrutiny that this Court applies to Ms. Windsor’s equal-protection claim.

DOMA falls outside Congress’s powers. Marriage is not commercial activity, and DOMA is not limited to federal-benefit programs that might rest on the Spending Clause. Any action by Congress that falls outside its specifically enumerated powers must be justified under the Necessary and Proper Clause, and DOMA cannot pass that test. DOMA’s definition of marriage is not “incidental” to an enumerated power, see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2591 (2012), because—as the Bipartisan Legal Advisory Group has said—its purpose is to make social policy regarding domestic relations rather than “carry into execution” some federal enumerated power. DOMA’s definition is also not “plainly adapted” to an enumerated end, see McCulloch, 17 U.S. (4 Wheat.) at 421, because it applies to more than 1100 federal statutes at once. Congress has never even considered how defining marriage to exclude same-sex couples will affect most of these statutory regimes, and BLAG does not defend DOMA in those terms. Finally, DOMA’s definition is not “proper,” see Printz v. United States, 521 U.S. 898, 923-24 (1997), because it violates the States’ equal sovereignty and lacks a limiting principle to cabin its usurpation of state control over domestic relations.

“[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.” Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). DOMA represents an unprecedented intrusion into this domain. That is true even though Congress has enacted statutes, such as for cross-border enforcement of child-custody and support orders, within the sphere of domestic relations. Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.

Congress’s establishment of a competing federal definition of family undermines the States’ sovereign authority to define, regulate, and support family relationships. Federal law is massively intertwined with state law, and state officials implement many federal programs, like Medicaid, in parallel with their own legal regimes. DOMA thus wreaks confusion and imposes substantial administrative costs that undermine States’ attempts to define marriage for themselves. These contradictory legal regimes impose costs on individuals as well, who cannot rely on a single body of law to settle their domestic status or hold a single set of officials politically accountable.

DOMA’s appropriation of the power to define marriage cannot be justified as simply defining a term relevant to administering federal programs. The statute is not called the “Defense of Marriage Act” for nothing: Congress did not act, say, to make ERISA function more smoothly, but rather because it wished to establish and promote a national definition of marriage to compete with States’ changing definitions. BLAG’s argument in defense of DOMA could not be clearer on this point. It asserts that “the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes.” Br. 19.

BLAG is wrong. The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers. And it is sufficient to decide this case.

While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA.

The argument is largely the brainchild of Ernie Young, who led the drafting effort, along with the superb attorneys Roy Englert, Carina Cuellar, and Erin Blondel at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.  You can read the entire brief here.

 

Today, in Clapper v. Amnesty International USA, the U.S. Supreme Court held that petitioners Amnesty International, et al., lacked standing to challenge surveillance of international communications under the Foreign Intelligence Surveillance Act.  The Court split 5-4 along traditional right-left lines.  Justice Alito wrote for the majority opinion.  Justice Breyer dissented.  Here is the introduction from Justice Alito’s opinion:

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General  and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.

For background on the case from the VC, here are some posts by Orin on the Second Circuit’s opinion below, the court’s 6-6 split en banc, and the oral argument, and posts by me on the Sixth Circuit’s opinion addressing this issue and the cert grant.  Several posts from the Lawfare Blog providing additional background are linked here.

Among the decisions handed down today by the Supreme Court is Bailey v. United States in which the Court held that it was not reasonable for police to seize an individual incident to the search of the individual’s residence when the individual was stopped and detained some distance from the dwelling in question, and there was no justification for the seizure beyond an alleged need to ensure the safety and efficacy of the search.  I’ll leave to others the substance of today’s ruling.  What’s interested to me is the lineup.  Justice Kennedy wrote for the majority, joined by the Chief Justice and Justices Scalia, Ginsburg, Sotomayor and Kagan.  Justice Scalia also issued a concurring opinion, joined by Justices Ginsburg and Kagan.  Justice Breyer dissented, joined by Justices Thomas and Alito.

On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters from the public. My letter is below.

—–

Feb. 8, 2013

Dear Senator Cruz:

I am submitting this letter for the Feb. 12, 2013, Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.”

To begin with, the Subcommittee should acknowledge that crime reduction policy has been a great success in the United States in recent decades. For example, in the early 1980s, the U.S. homicide rate was more than 10 per 100,000 population. Today, that rate has fallen by over half, to under 5. This is comparable to the early 1960s. Overall rates of violent crime have also fallen sharply since their peak of several decades ago.[1]

There are many causes for this progress. Perhaps one of them is that today, 41 of the 50 states respect the constitutional right to bear arms, so that a law-abiding adult can obtain a permit to carry a concealed firearm for lawful protection, or even carry without a permit in a few states. In contrast, in the early 1980s, only about half a dozen medium or small states provided a fair system for licensing the carrying of firearms.

Second, the exploitation of the Newtown murders as an occasion to impose a plethora of new anti-gun laws is unwise. Professor Gary Kleck, of Florida State University, is by far the most eminent worldwide scholar on quantitative data about firearms, and the effect of firearms laws. His book Point Blank: Guns and Violence in America was the winner of the Michael J. Hindelang Award of the American Society of Criminology, for “the most outstanding contribution to criminology” in a three-year period.

Kleck’s 2009 article “The worst possible case for gun control: mass shootings in schools” [American Behavioral Scientist 52(10):1447-1464] explains why gun control laws enacted as part of an inchoate desire to “do something” after an atrocious crime such as a mass murder in a school are particularly unlikely to prevent future such crimes. Rather, the “do something” anti-gun laws typically amount to an expression of rage against guns or gun owners, and fail to make children safer.

Regarding some particular proposals that have been raised, as alleged responses to Newtown:

The “assault weapons” issue is one of the most long-standing hoaxes in American politics. The guns suggested for prohibition do not fire faster, nor do they fire more powerful ammunition, than guns which are not singled out for prohibition. External features such as telescoping stocks, or forward grips, make it easier for a user to control the firearm, to shoot it accurately, and to hold it properly. Features which make a firearm more accurate are not a rational basis for prohibition.[2]

Magazines holding more than 10 rounds are not “high capacity.” Semi-automatic handguns constitute over 82% of new handguns manufactured in the United States.[3] A large percentage of them have standard, factory capacity magazines of 11 to 19 rounds. The AR-15 type rifle has for years been the best-selling rifle in the United States. The factory standard magazine for an AR-15 rifle is 30 rounds.

Assertions by some prohibitionists that the aforesaid common guns and common magazines are only made for mass murder are a malicious libel against the millions of peaceable Americans who own these self-defense and sporting tools.

Pursuant to District of Columbia v. Heller, such firearms and magazines may not be prohibited, because they are “typically possessed by law-abiding citizens for lawful purposes.” 554 U.S. 570, 625 (2008). As Heller explained, the Second Amendment prohibits prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of self-defense. Id. at 628.

Senator Feinstein’s prohibition bill targets an enormous class of arms. Taking into account the at least 4 million AR-15 rifles, plus everything else, the Feinstein ban would likely apply to at least 10 million firearms.

As for the magazines, the Feinstein ban does not focus solely on genuinely “high capacity,” non-standard magazines (e.g. 75 or 100 rounds) but instead bans common magazines holding 11 or more rounds; the gigantic class of what she would ban probably numbers at least several tens of millions, and perhaps much more.

That in itself is sufficient, according to Heller, to make prohibition unconstitutional.

The conclusion is reinforced by Heller’s observation that handgun prohibition was unconstitutional “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628. For substantive rights (as opposed to procedural ones), the two main standards are Strict Scrutiny and Intermediate Scrutiny. The former is for most situations of racial discrimination by government, and for most types of content-based restrictions on speech. The latter is used for government discrimination based on sex, as well as for most “time, place, and manner” regulations of speech in public places.

So we know that handgun prohibition fails Strict Scrutiny and also fails Intermediate Scrutiny. Although formulations of Intermediate Scrutiny vary from case to case, the general approach is that to pass Intermediate Scrutiny, a law must involve “an important government interest” and must “substantially” further that interest.

Now consider Intermediate Scrutiny as applied to handguns. Handguns constitute approximately one-third of the U.S. gun supply. They are used in about half of all homicides.[4]

And yet, a handgun ban fails Intermediate Scrutiny. If a handgun ban fails, then the bans on magazines and on so-called “assault weapons” must also fail.

The large majority of firearms banned by Sen. Feinstein’s bill are rifles. Rifles constitute about a third of the American gun supply. But rifles account for fewer than 3% of U.S. homicides—fewer than blunt objects such as clubs or hammers. The rifles covered by the Feinstein bill would account for even less.

Because handguns (very frequently used in crime) cannot be banned under Intermediate Scrutiny, rifles, or a subset of rifles (rarely used in crime) cannot be banned either.

There are no solid national statistics about the current use of 11+ magazines in crime. Given that 11-19 round magazines are standard for a large fraction of modern handguns, one might guess that 11+ round magazines would be used in some crimes. Even so, such magazines would be used less often in crime than handguns in general. Thus, a magazine ban also fails Intermediate Scrutiny.

It is important to remember that when applying Intermediate Scrutiny to a Second Amendment question, Heller’s methodology (by announcing that a handgun ban fails Intermediate Scrutiny) is that one must not consider solely the criminal uses of an arm. One must also consider the frequency of an arm’s use by “law-abiding citizens for lawful purposes.” The sheer quantity of what Senator Feinstein would ban is itself evidence that the banned firearms and magazines are “typically possessed by law-abiding citizens for lawful purposes.”

Heller makes it clear that some non-prohibitory controls are permissible. Because the Heller case was about a gun ban, the Court did not deeply explore the contours of legitimate non-prohibitory controls. However, the Court has said enough to at least raise questions about the constitutionality of “universal background checks.”

It is often said, by anti-gun lobbyists, that 40% of firearms sales take place today without checks. Notably, the study on which this claim is based was conducted before the National Instant Criminal Background Check System became operational.

Besides that, a great many private transfers of firearms take place between family members, or other persons who have known each other for many years.

More fundamentally, private transfers are not with the proper scope of Congress’s power to regulate “Commerce . . .  among the several States.” Pursuant to federal law since 1968, private sales may only take place intra-state. 18 U.S.C. §922(a). They are not interstate commerce. Nor, indeed, are they necessarily commerce of any sort, no matter how broadly defined, since many such transfers are gifts.

In Printz v. United States (1997), Justice Thomas’s concurring opinion suggested that a mandatory federal check on “purely intrastate sale or possession of firearms” might violate the Second Amendment. 521 U.S. 898, 938 (2007).

This view is supported by the Supreme Court’s opinion in District of Columbia v. Heller. There the Court provided a list of “longstanding” laws which were permissible gun controls. Heller at 626-27. The inclusion of each item on the list, as an exception to the right to keep and bear arms, provides guidance about the scope of the right itself.

Thus, the Court affirmed “prohibitions on the possession of firearms by felons and the mentally ill.” Felons and the mentally are exceptions to the general rule that individual Americans have a right to possess arms. The exception only makes sense if the general rule is valid. After all, if no-one has a right to possess arms, then there is no need for a special rule that felons and the mentally ill may be barred from possessing arms.

The second exception to the right to keep and bear arms is in favor of “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” This exception proves another rule: Americans have a general right to carry firearms. If the Second Amendment only applied to the keeping of arms at home, and not to the bearing of arms in public places, then there would be no need to specify the exception for carrying arms in “sensitive places.”

The third Heller exception is “laws imposing conditions and qualifications on the commercial sale of arms.” The word “commercial” does not appear because the Supreme Court was trying to use extra ink. Once again, the exception proves the rule. The Second Amendment allows “conditions and qualifications” on the commercial sale of arms. The Second Amendment does not allow Congress to impose “conditions and qualifications” on non-commercial transactions.

Federal law has long defined what constitutes “commercial sale” of arms. A person is required to obtain a Federal Firearms License (and become subject to many conditions and qualifications when selling arms) if the person is “engaged in the business” of selling firearms. This means:

a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;

18 U.S.C. §921(a)(21)(D). Of course a person who is “engaged in the business,” but who does not have a FFL, is guilty of a federal felony every time he sells a firearm. 18 U.S.C. §§922(a), 924.

Currently, the federal NICS law matches the constitutional standard set forth in Heller. NICS applies to all sales by persons who are “engaged in the business” (FFLs) and does not apply to transfers by persons who are not “engaged in the business.”

President Obama has already ordered the Bureau of Alcohol, Tobacco, Firearms and Explosives to inform FFLs about how they can perform a NICS check for private persons who would like such a check. On a voluntary basis, this is legitimate, but it would be constitutionally dubious to mandate it.

Finally, there has been talk of new federal laws against gun trafficking and against straw purchases. Fortunately, gun trafficking and straw purchases are already illegal, and there are many people who have the federal felony convictions to prove it.

Allegedly, federal prosecutors will be more willing to enforce the already-existing bans on trafficking and straw purchases if the laws are restated by enacting new legislation. A simpler approach would be for the President or the Attorney General to order U.S. Attorneys to give greater attention to the enforcement of the existing laws. Moreover, new statutes, especially when drafted in a “do something” crisis atmosphere may turn out to be highly overbroad, and to impose harsh new penalties on persons who were not the intended targets of the new statutes. The poorly-named “USA PATRIOT Act” should provide a cautionary example.

Below are some articles which might be interest to the Subcommittee.

“Guns, Mental Illness and Newtown.” Why random mass shootings have increased and what to do about it. Wall Street Journal. Dec. 17, 2012. http://online.wsj.com/article/SB10001424127887323723104578185271857424036.html.

“Arming the right people can save lives.” Good guys with guns have managed to thwart many mass attacks. Los Angeles Times. Jan. 15, 2013. http://www.latimes.com/news/opinion/commentary/la-oe-kopel-guns-resistance-nra-20130115,0,955405.story.

My U.S. Senate Judiciary Committee testimony on gun violence. Jan. 30, 2013. http://davekopel.org/Testimony-Senate-Judiciary-Kopel-1-30-13.pdf.

“Ronald Reagan’s AR-15.” Volokh.com. Jan. 15, 2013. http://www.volokh.com/2013/01/15/ronald-reagans-ar-15/.

“A Principal and his Gun.” How Vice Principal Joel Myrick used his handgun to stop the school shooter in Pearl, Mississippi. By Wayne Laugesen. Boulder Weekly. Oct. 15, 1999. http://davekopel.org/2A/OthWr/principal&gun.htm.

Pretend “Gun-free” School Zones: A Deadly Legal Fiction. 42 Connecticut Law Review 515 (2009). http://ssrn.com/abstract=1369783.

“Gun-Free Zones.” Wall Street Journal, April 18, 2007. The murders at Virginia Tech University. http://davekopel.org/2A/OpEds/Gun-Free-Zones.htm.

 

Sincerely,

David B. Kopel

Research Director, Independence Institute

Associate Policy Analyst, Cato Institute

Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.

The significant role of law school Supreme Court clinics has been an important development in the dynamics of the Supreme Court bar in the last decade. In the January 2013 issue of the Stanford Law Review, Jeffrey Fisher has a fascinating article on the clinics and their roles. The final version is available on Westlaw but not yet on the SLR’s website; in the meantime you can read a draft on SSRN here. The abstract:

The past several years have witnessed the emergence of a new phenomenon: clinics in law schools that litigate cases in the Supreme Court. Although some commentators have written about the pedagogical goals and benefits of such clinics, no-one yet has written about their public interest mission. This article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by local counsel instead of Supreme Court specialists are generally at a distinct disadvantage. Finding that assumption to be accurate, the article identifies and discusses opportunities that Supreme Court clinics have to serve the public interest. Most importantly, such clinics can level the representational playing field to the benefit of traditionally underserved litigants and bring balance to certain areas of the law that otherwise tend to be skewed by inequalities in lawyering. At the same time, operating a Supreme Court clinic presents special challenges and responsibilities. Unlike most other kinds of clinical work, Supreme Court cases generate reverberations far beyond the specific parties involved — indeed, sometimes beyond the courts themselves. Consequently, insofar as clinics have control over which cases they bring to the Court and can cause the Court to hear cases that it might not otherwise have heard, the clinics’ work can implicate sometimes-latent tensions between client-centered representation and cause-based advocacy. The article is forthright that when it comes to selecting (and, to lesser extent, handling) cases in the Court, there are not always easy ways to navigate these competing approaches to public interest lawyering. But it explores the ethical, practical, and normative issues that operating a Supreme Court pro bono practice raises.

The Supreme Court has denied certiori in a pair of Fourth Circuit piracy cases, which raised questions about the Define and Punish power and how federal courts determine international law when incorporated into a federal statute. I had previously argued that the decisions below were clearly correct.

I was recently asked to participate in a Zocalo Public Square forum on the Supreme Court and partisanship, which asked participants whether “the Supreme Court[is] any less partisan than the two other branches of government?” The other participants were former congressman Mickey Edwards, political scientists Tom Clark (Emory) and Timothy Johnson (Minnesota), and Talking Points Memo political reporter Sahil Kapur. Here is an excerpt from my piece:

Both liberals and conservatives routinely accuse the Supreme Court of political bias—especially when its decisions go against them. Many important Supreme Court decisions do indeed divide the justices along ideological lines. But the Court is much less partisan than the political branches of government and still functions as an important check on their powers....

Although judges are influenced by ideology, they rarely make decisions based on short-term partisan advantage, as politicians often do. Justices often vote against the interests of their political party. During the Bush administration, conservative justices Antonin Scalia, Anthony Kennedy, and Sandra Day O’Connor voted against the administration in key national security and federalism cases, including with regard to the rights of War on Terror prisoners held at Guantanamo Bay. Obama appointees Sonia Sotomayor and Elena Kagan recently voted against the administration’s position in key property rights and religious liberties cases. They and other justices may be influenced by ideology. But they do not kowtow to the political interests of any particular party or administration. By contrast, politicians routinely support policies adopted by their own party’s administrations that they would never support when pursued by the opposition....

Some ideological bias from judges is an unavoidable cost of judicial review. But the judiciary is still a valuable check on the power of government. Without it, our constitutional rights would be at the mercy of majority opinion and politicians’ short-term calculations of partisan advantage.

UPDATE: Due to tight space constraints, I wasn’t able to cover Bush v. Gore in the Zocalo article – a decision that is often cited as a prime example of the Supreme Court acting in a partisan way. In my view, Bush v. Gore was indeed a bad decision, and all nine justices voted in a way consistent with their likely partisan preferences, and arguably inconsistent with their prior jurisprudential commitments. The conservatives adopted an expansive interpretation of the Fourteenth Amendment and refused to defer to a state court’s interpretation of state law. The liberals, by contrast, deferred to the state court more than they usually would, and two of them adopted a relatively narrow interpretation of the Fourteenth Amendment. Partisan preferences may well have played a role in that outcome.

However, Bush v. Gore was a highly atypical case and isn’t really representative of the Court’s overall record. Unlike most Supreme Court cases, especially important ones, it was a case where the jurisprudential stakes were very low. The case was unlikely to become a major precedent for future litigation, and in fact isn’t much cited by lower courts. By contrast, the perceived immediate partisan stakes were extremely high: the election of a president. The combination of unusually low jurisprudential stakes and unusually high partisan stakes made partisan bias more likely. In addition, the case was decided on an extremely short time-frame, which gave the justices little opportunity to carefully consider the legal issues. As a result, knee-jerk reactions probably played a greater-than-usual role in their decision-making, which likely magnified the impact of biases of all kinds.

As a result, none of the justices really covered themselves in glory. Yet it’s worth noting that not all of them were completely inconsistent with their jurisprudential commitments. The Article II rationale for overturning the Florida Supreme Court embraced by the three most conservative justices strikes me as much stronger than the Equal Protection Clause argument endorsed by the majority as a whole. and two of the four liberals (Breyer and Souter) agreed with the majority that there was an Equal Protection Clause violation, even though they differed on the issue of whether the right remedy was to end the recount process, as opposed to giving the Florida Supreme Court the opportunity to design a new recount.

Tomorrow the Supreme Court will hear oral argument in a potentially important takings case, Koontz v. St. Johns River Water Management District. In this case, a landowner is challenging the state’s refusal to grant a permit to develop wetlands unless the landowner agreed to various conditions, including the performance of off-site mitigation. When the landowner refused, the agency refused to grant the permit and the landowner sued, claiming that the conditions the government sought to impose violated the rough proportionality requirement of Nollan and Dolan. Although he prevailed in the lower courts, the Florida Supreme Court reversed, concluding that (among other things) that the rough proportionality requirement did not apply to off-site mitigation requirements or to situations where a permit is never issued. Given the issues involved, Koontz could have a major effect on environmental mitigation requirements and land-use regulation at all levels of government.

Ilya previewed Koontz and Greenwire covered the case when the Court granted cert. For more on the case, here are comments by Richard Epstein and — from a quite different perspective — Richard Frank. One thing all would agree on, however, is that this could be a very important case — easily the most important property rights case heard by the Roberts Court to date.

UPDATE: The Pacific Legal Foundation represents the landowner in this case, and there are quiet a few posts on Koontz on the PLF blog. (PLF also represented the Sacketts in Sackett v. EPA from last term.)

On the other side of the case, Doug Kendall of the Constitutional Accountability Center comments here. CAC was formerly know as Community rights Counsel, an organization that reliably opposed regulatory takings claims in federal courts.

I blogged yesterday about whether liberal or conservative Americans are more likely to support protections for various kinds of speech, including speech arguing that blacks are genetically inferior — the General Social Survey question that’s most relevant to the debate about protection for supposed “hate speech.” It turns out that liberals are somewhat more likely than conservatives to support protection for such speech, though the gulf isn’t wide, and there’s a substantial split of opinion on both sides.

What about Supreme Court Justices? Since 1970, there have been several cases in which the Court has considered restrictions on what might be said to be “hate speech,” usually racist speech but in one instance misogynistic pornography. As I’ll note below, there are limits to how much this dataset tells us, but I pass it along for whatever it’s worth. So here is the data, with the caveats later. Each vote is classified as “+” if it supported protection for racist or misogynistic speech (or hinted substantially in that direction), “-” if it opposed such protection (or hinted substantially in that direction, and blank if the Justice didn’t express an opinion on the subject.

Justice	Ideology	Collin	Hudnut	Dawson	R.A.V.	Avis	Black A	Black B	%
Brennan	L		+						100
Marshall	L		+						100
Stevens	L		+	+	-		+	-	60
Souter	L			+	+		+	+	100
Ginsburg	L						+	+	100
Breyer	L						+	-	50
White	M	-	+	+	-				50
Powell	M		+						100
Blackmun	M	-	+	+	-				50
Burger	C		-						0
Rehnquist	C	-	-	+	+		+	-	50
O’Connor	C		-	+	-		+	-	40
Scalia	C			+	+		+	-	75
Kennedy	C			+	+		+	+	100
Thomas	C			-	+	+	-	-	40

The bottom line result seems to be much the same as what I described for the public at large — liberals are somewhat more likely than conservatives to support protection for what is sometimes labeled “hate speech,” though the gulf isn’t vast, and there’s a substantial split of opinion on both sides. The same also remains even if we exclude Hudnut (which had to do with sex, and which might be hard to categorize for reasons I mention below) and even if we exclude both Hudnut and Collin (perhaps in trying to limit ourselves to post-1990 cases, to reflect the possibility that both conservative and liberal views on free speech have shifted in recent decades). Indeed, even excluding Hudnut and Collin, the result in terms of total votes shows 75% pro-hate-speech-protection for the liberals, 50% for the moderates, and 67% for the conservatives. If you rearrange some of the categories, the results might change slightly; but on balance, I think this probably captures the situation pretty well.

Now on to the details. First, a few general caveats that might limit the relevance of these cases to “hate speech” debates more broadly: The cases don’t generally deal with any solid attempts to outlaw bigoted advocacy generally, and often focus on very narrow restrictions, such as bans on racist “fighting words” (a subcategory of “fighting words,” which is already a recognized First Amendment exception). The cases may have had other factors in play that influence the Justices, such as broader debates about the death penalty (Dawson v. Delaware) or pornography (Hudnut v. American Booksellers Ass’n). Some of the decisions involved denials of discretionary review, so most of the Justices expressed no opinion on the merits (since the refusal to hear a case is often based on factors other than agreement or disagreement with the decision below). Some of the decisions, especially the denials of discretionary review, are somewhat ambiguous in their positions. No Justice was on the Court for all these cases.

Second, an explanation of my ideological labels for the Justices: As with my earlier posts, I combine liberals and moderate liberals into one group, and conservatives and moderate conservatives into one group. I label White and Powell as moderate because that’s how they have generally been understood as Court-watchers, and I think correctly so, if one looks at their views across a wide range of issues. I label Blackmun a moderate because he was generally seen as a conservative in the 1970s but then a liberal in the late 1980s and 1990s; given the makeup of the cases, that averages out to moderate. I label Stevens a liberal because he was generally seen as a moderate in the late 1970s and early 1980s but then a liberal in the 1990s and 2000s; given the makeup of the cases, that averages out to liberal. (I think Stevens genuinely changed his views on some topics, though not necessarily on free speech; I don’t think his labeling as liberal later in his career can be explained solely by the Court’s becoming more conservative.) I label Souter a liberal because I think he was a moderate liberal throughout his tenure on the Court; though he was seen as a conservative when he was first appointed by President Bush, I don’t think he really changed in any appreciable way, and he was quickly recognized to be a liberal. I label O’Connor and Kennedy as conservative because I think that they are on balance moderate conservatives, even though they’ve at times disappointed conservatives with their votes.

Third, a brief summary of the cases:

1. Smith v. Collin (1978), denying discretionary review, and also the earlier decision in the case denying a stay. These came from the famous litigation over the Nazi parade in Skokie, Illinois, in which the lower court upheld the Nazis’ right to march. Justices White and Rehnquist voted to deny the stay, and Justices White and Blackmun voted to rehear the case; both opinions seemed to express some openness to the continued survival of Beauharnais v. Illinois (1952), a decision that upheld bans on defamation of racial and religious groups (an early form of “hate speech” ban). Beauharnais is widely considered to no longer be good law, given New York Times Co. v. Sullivan and later cases, but I read Justices White’s, Rehnquist’s, and Blackmun’s votes and accompanying opinions as at least suggesting the view that Beauharnais should be still seen as valid.

2. Hudnut v. American Booksellers Ass’n (1986), affirming without opinion the Seventh Circuit decision striking down the Indianapolis anti-pornography ordinance (drafted in large part by Catharine MacKinnon), which banned even pornography that fell outside the existing “obscenity” exception, so long as that pornography presented women “as sexual objects who enjoy pain or humiliation,” “as sexual objects for domination,” “in scenarios of degradation,” “as sexual objects who experience sexual pleasure in being raped,” and so on. The Court’s affirmance was a decision on the merits, but one that set a very narrow precedent. (Such “summary affirmances” were not uncommon until the Court’s jurisdictional statute was changed in the late 1980s.) Chief Justice Burger and Justices Rehnquist and O’Connor voted to hear oral argument in the case, which I read as suggesting that the ordinance might well be constitutional.

3. Dawson v. Delaware (1992) reversed a death penalty determination that was based partly on the defendant’s membership in the Aryan Brotherhood prison gang; the Court held that the membership by itself only showed the “abstract beliefs” of the gang, and wasn’t sufficiently linked at trial to the culpability or future dangerousness of the defendant. Justice Thomas dissented, arguing that such a link was present.

4. R.A.V. v. City of St. Paul (1992) struck down an ordinance that specially punished certain kinds of insulting words that were based on race, religion, and similar categories. Chief Justice Rehnquist and Justices Scalia, Kennedy, Thomas, and Souter held that the ordinance was unconstitutional even if it was limited to so-called “fighting words,” which could generally be banned; selectively banning bigoted fighting words, the majority held, violated the First Amendment. The concurring Justices, White, Blackmun, Stevens, and O’Connor, concluded that selectively banning bigoted fighting words would be constitutional, though it voted to strike down the ordinance because the concurring Justices didn’t think it was limited to fighting words. Probably the best way of viewing the split was five Justices being more open to protecting racist speech, and four Justices being more open to some quite modest restrictions on such speech.

5. Avis Rent a Car System, Inc. v. Aguilar (2000) declined to review a lower court case that upheld an injunction against racist epithets in the workplace. As with Smith v. Collin, this decision didn’t express an opinion on the merits. Still, Justice Thomas did dissent from the denial of review, and strongly suggested that the lower court decision was wrong.

6. In Virginia v. Black (2003), the Supreme Court considered three convictions under a Virginia statute banning cross-burning; it struck down one (which I label “Black A”) by an 8-1 vote, on the grounds that that cross-burning was just a statement of racist political ideas, and upheld two others (which I label “Black B”) by a 6-3 vote, on the grounds that the single cross-burning involved in those two cases was an individually targeted threat that therefore fell within the “true threats” exception. The exact details are complicated, but I think it’s fair to say that Justice Thomas was the sole dissenter (on the more speech-restrictive side) in Black A, and Justices Kennedy, Souter, and Ginsberg were the dissenters (on the more speech-protective side) in Black B.

I do not include in this list Forsyth County v. Nationalist Movement (1992), in which the speakers happened to be racist, but in which the law did not target racist speakers as such, but rather imposed extra fees on speakers that were likely to draw a hostile audience.