Reason Magazine - Topics > Constitutional Law

The Paleo Case for Judicial Activism

info@reason.com (Damon W. Root) — Wed, 07 May 2008 11:06:00 EDT

Following up on Nick Gillespie's Supreme Court post earlier this morning, I see that our friends over at LewRockwell.com have run a very interesting piece arguing that "judicial activism is only lamentable when the judges actively ignore the Constitution." From historian Kevin R.C. Gutzman's article:

"Judicial restraint," in and of itself, is not a virtue. The idea of judicial restraint first gained currency in legal academia in the first third of the twentieth century. Then, it was the slogan of such as Felix Frankfurter, an Ivy League law professor and high ACLU mucky-muck who wanted conservative activists to cease imposing their laissez-faire vision on America.

The laissez-faire Supreme Court, in particular, was partly in the right and partly in the wrong. In a series of cases, the Court of the late nineteenth and early twentieth century disallowed wage and labor legislation passed by both state and federal legislatures. The Court was right to do this in regard to the congressional statutes, because, as the justices said, the Tenth Amendment represented the constitutional principle of federalism—that control of those matters had been reserved to the states.

Whole thing here.

I'd argue that it's Gutzman who is partly right and partly wrong. As I describe in my libertarian case for judicial activism, Supreme Court justices such as Stephen J. Field correctly read the Fourteenth Amendment as applying the Bill of Rights (including the Ninth Amendment's guarantee of unenumerated rights) to the states. So the laissez-faire Court was right in Lochner v. New York (1905), for example, when it struck down the state's maximum working hours law for bakeshop employees as a violation of liberty of contract, just as it was right to strike down federal New Deal laws three decades later. In other words, we'd all be better off with an activist Supreme Court that consistently upheld individual rights while strictly limiting state and federal power.

D.C.'s Homicide Rate May Be Through the Roof, but Montanans Kill Themselves a Lot

jsullum@reason.com (Jacob Sullum) — Mon, 05 May 2008 15:21:00 EDT

Citing a connection between gun ownership and "firearm death rates," the Violence Policy Center concludes that the U.S. Supreme Court should uphold the District of Columbia's gun ban:

The five states with the highest per capita gun death rates were Louisiana, Alaska, Montana, Tennessee and Alabama. Each of these states had a per capita gun death rate far exceeding the national per capita gun death rate of 10.32 per 100,000.
By contrast, states with strong gun laws and low rates of gun ownership had far lower rates of firearm-related death. Ranking last in the nation for gun death was Hawaii, followed by Massachusetts, Rhode Island, New Jersey and New York.
VPC Legislative Director Kristen Rand states, "Blind allegiance to the Second Amendment comes at a deadly price. Many residents in pro-gun states cheer the possibility of a June Supreme Court ruling that could place gun controls across the nation at risk, never realizing that those states stand as proof of the need for such laws."

Using state-level data for this comparison is problematic, since it ignores intrastate differences in gun control and gun ownership—between New York City and upstate New York, for instance, or between Chicago and downstate Illinois. In any case, the VPC's full table suggests that the relationship between gun ownership and gun-related deaths is not quite as neat as the group's press release implies. North Dakota, Kansas, Utah, Wisconsin, Maine, Vermont, Minnesota, and Iowa all have relatively high gun ownership rates (above 40 percent), but all have firearm death rates below the national average.

Nor is it clear that the firearm death rate—which includes suicides and accidents as well as homicides but excludes deaths caused by other means—is the correct way to measure the success of a policy (gun control) that presumably aims to achieve a net reduction in deaths, not merely a change in the mixture of methods. Nine out of the 10 states with the lowest overall murder rates—Vermont, Iowa, Utah, Montana, Maine, Wyoming, Hawaii, North Dakota, South Dakota, and New Hampshire—have relatively loose gun rules. States with relatively strict gun control do look better in the overall suicide rankings. Presumably suicide is the reason why a state like Montana, which ranks near the top in gun ownership, 44th for murder, and first for suicide, comes in third on the VPC's list of states with the highest gun death rates.

It's not clear, of course, whether Montanans' propensity to kill themselves is caused by all those guns. With any comparison like this one, we need to keep in mind that correlation does not prove causation—especially when the correlation is based on a cherry-picked outcome measure and a simplistic top five, bottom five comparison. Even given those parameters, the VPC's presentation of the data is skewed by its decision to leave out a jurisdiction that has both the country's strictest gun control and by far its highest murder rate—more than twice the rate of its nearest competititor. The omission is especially puzzling because it was the controversy over this jurisdiction's gun laws that evidently prompted the VPC to assemble its table.

Speaking of which, shouldn't the constitutionality of D.C.'s gun ban hinge on the Constitution, as opposed to the suicide rate in Montana? By cautioning against "blind allegiance to the Second Amendment," the VPC essentially concedes that D.C.-style gun control is unconstitutional, while arguing that it should be upheld anyway.

The VPC press release prompted a credulous, one-sided UPI story and a Honolulu Star-Bulletin editorial crowing about the superiority of Hawaii's gun laws.

[Thanks to Dan Gifford for the tip.]

Liberty for All

info@reason.com (Damon W. Root) — Mon, 05 May 2008 15:00:00 EDT

Last week, South Dakota election supervisor Kea Warne announced that state voters will have the opportunity this November to accept or reject one of the nation's strictest anti-abortion statutes, a proposed law that would completely ban the practice except for narrowly defined cases of rape, incest, or the health of the mother. Sponsored by the group VoteYesForLife.com, which gathered well above the 16,776 signatures necessary for inclusion on the fall ballot, Initiated Measure 11, as the proposal is known, puts the question of abortion rights directly in the hands of state voters. If they vote yes, doctors who perform illegal abortions will face up to 10 years in prison and up to $10,000 in fines. But should it matter what the voters think?

Look at it like this. The United States Constitution guarantees a number of specific individual rights, including free speech and the right to keep and bear arms. But what about those rights that aren't listed? Do we have the right to drink apple juice? How about the right to grow a mustache? More crucially, what about the right to be left alone? The Constitution mentions none of them. So if a majority of voters agree that we don't possess these (or countless other) rights, what's to stop the government from restricting our liberty?

The answer for many conservatives, and some libertarians, is nothing. Take Rep. Ron Paul (R-Texas). An outspoken foe of abortion, Paul favors turning the issue over to the states, where local preferences would trump a one-size-fits-all federal policy. Even pro-choice libertarians might like the sound of that. But consider the full ramifications of Paul's majoritarian position. Responding to the Court's disastrous decision in Kelo v. City of New London (2005), which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan, Paul argued that the Supreme Court should have simply refused to hear the case. "The issue," he maintained, "is the legality of the eminent domain action under Connecticut law, not federal law....The fight against local eminent domain actions must take place at the local level."

While Paul is certainly right that eminent domain abuse must be aggressively fought on the local level, he's wrong that we should skip the federal fight. As the Fourteenth Amendment declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." Yet in Paul's mistaken opinion, this potentially libertarian amendment has no impact on the actions of state or local governments. Legal historians, however, have long agreed that the Fourteenth Amendment was originally meant to apply the Bill of Rights (and other natural rights) to the states.

Similarly, conservative former federal appeals court judge Robert H. Bork has attacked the Supreme Court for "inventing" rights and "usurp[ing] the powers of the people and their elected representatives." Bork is referring to two cases here. First, in Griswold v. Connecticut (1965), the Court struck down that state's ban on contraceptives, holding that the law violated the "zones of privacy" created by the Constitution's "various guarantees." Second, in Roe v. Wade (1973), the Court recognized the right to an abortion within the privacy rights guaranteed by Griswold.

For Bork, the absence of the word privacy in the Constitution means that the document does not protect it. But what about the Ninth Amendment, which states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, the Constitution itself recognizes that we possess far more rights than any document could ever list, a situation that the legal scholar Stephen Macedo has likened to islands of government power "surrounded by a sea of individual rights." If Bork had his way, we'd all be drowning in a sea of government power.

Which brings us back to the voters of South Dakota. There's nothing inherently noble about a majority of people agreeing on a particular issue. Indeed, bad ideas often prove more popular than good ones. It's only when popular majorities are anchored to the idea of inalienable rights that they're most entitled to our respect. Without that underlying commitment to individualism, majority rule can and frequently will degenerate into the loss of liberty for unpopular minorities. The racist policies of the Jim Crow South, after all, were often extremely popular among white voters.

So before we get too misty over the will of the people of South Dakota, let's remember that James Madison warned us about the tyranny of the majority, not the tyranny of unfettered individual liberty.

Damon W. Root is a reason associate editor.

John Yoo's Right to Give Bad Advice

jsullum@reason.com (Jacob Sullum) — Thu, 24 Apr 2008 15:41:00 EDT

At a Manhattan Institute website devoted to higher education, civil libertarian (and reason contributor) Harvey Silverglate takes a skeptical look at calls to discipline, disbar, fire, or prosecute former Justice Department attorney John Yoo, now a Berkeley law professor, for his advice regarding the president's authority to torture prisoners and otherwise flout the will of Congress and/or the Constitution. Although severely critical of Yoo's views on executive power, some of which he calls "laughable" and "ludicrous," Silverglate approaches the issue as "both a criminal defense lawyer, with a vested interest in ensuring that a fellow member of the bar is dealt with fairly, and as a frequent critic of higher education's often evident contempt for academic freedom." He argues that proving Yoo gave his legal advice in bad faith, as required for prosecution and probably for disbarment as well, would be very difficult. Silverglate also warns that an investigation by his employer could have a chilling effect on academic freedom and set a bad precedent for partisan attacks disguised as ethical policing. Such inquiries would in any case be fundamentally misguided, I think, given the impressive ability that human beings have to convince themselves that what's convenient for them (or their bosses) is also what's right.

John Yoo's vision of presidential power scares me, but so do partisan attacks on freedom of speech.

Think of It As a Lifectomy

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 07:00:00 EDT

In his recent Supreme Court opinion upholding Kentucky's execution method, Chief Justice John Roberts says the state's lethal injection procedure passes constitutional muster because it does not pose "a substantial risk of serious harm." You might think serious harm would be hard to avoid with a procedure that's designed to take someone's life.

Roberts, of course, is not talking about the harm that inevitably occurs when someone dies; he is talking about the possibility of pain on the way to that final destination. This strange fastidiousness about making murderers as comfortable as possible when we kill them suggests that capital punishment in this country is ultimately doomed.

It's not doomed because it violates the Eighth Amendment's prohibition of "cruel and unusual punishments," contrary to what Justice John Paul Stevens now seems to think. As Justices Antonin Scalia and Clarence Thomas point out in their concurring opinions, a penalty explicitly envisioned by the Constitution (which refers to capital cases and says the government may not take someone's life without due process) can hardly violate the Constitution.

No, capital punishment is doomed because most Americans, including many who ostensibly support it, are not truly at ease with the idea of killing a man in cold blood. On balance, that is probably a good thing.

This discomfort with executions is reflected in what initially seems to be a needlessly complicated lethal injection process. In Kentucky, as in the vast majority of the 36 states with death penalties, condemned prisoners receive three different drugs: sodium thiopental, a barbiturate that would be fatal on its own in a large enough dose, to knock them out; pancuronium bromide to paralyze their muscles; and potassium chloride to stop their hearts.

The Eighth Amendment challenge to this procedure was based on the possibility that a prisoner might not get enough of the barbiturate to be fully unconscious. In that case, he would experience suffocation from the pancuronium bromide and severe pain from the potassium chloride without being able to communicate his suffering.

One solution to this potential problem, recommended by the two Kentucky murderers who brought the case, is to eliminate the pancuronium bromide so that the illusion of unconsciousness won't be mistaken for the real thing. In his opinion, Roberts cites two reasons why a state might nonetheless decide to continue using the paralytic agent.

"First," he writes, "it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death."

It's clear from these justifications that the state is trying to prevent discomfort not in the condemned prisoner (who, after all, is supposed to be unconscious) but in the people who witness the execution and, by extension, the general public. "Preserving the dignity of the procedure" is code for maintaining the illusion that a man the government executes is really just undergoing a medical procedure with a very high risk of fatal complications.

In the ebb and flow of American death penalty fashions, from hanging and firing squad through electrocution and the gas chamber to lethal injection, Roberts sees "an earnest desire to provide for a progressively more humane manner of death." I see an earnest desire to soothe an increasingly squeamish public.

As Fordham University law professor Deborah Denno has noted, the execution methods that are less unpleasant to watch are not necessarily less painful. "To me," she told The New York Times a few months ago, "the firing squad is the most humane and perceived to be the most brutal."

Around the same time, the Chinese government said it planned to switch from executions by gunshot to executions by lethal injection, which "is considered more humane," according to an official of the Supreme People's Court. Should that count as progress?

Supreme Court Upholds Lethal Injection

jsullum@reason.com (Jacob Sullum) — Wed, 16 Apr 2008 15:26:00 EDT

Today the U.S. Supreme Court upheld lethal injection, the execution method used by nearly every state with capital punishment, against a challenge by two Kentucky murderers who argued that it violates the Eighth Amendment. Seven justices agreed that the three-chemical lethal injection method, which involves a barbiturate for anesthesia, pancuronium bromide to paralyze the muscles, and ~~sodium~~ potassium chloride to stop the heart, is not "cruel and unusual punishment." But they disagreed about the proper standard to apply in reaching that conclusion.

The plurality opinion by Chief Justice John Roberts, which was joined by Justices Anthony Kennedy and Samuel Alito, says Kentucky's execution method passes muster because it does not pose a "substantial risk of serious harm": Although it's true that a condemned man will experience suffocation and pain if he is not given an adequate dose of the anesthetic, the odds of such a mistake seem to be pretty low. In a concurring opinion, Justice Stephen Breyer says there is not enough evidence to conclude that the three-drug method poses even "a significant risk of unnecessary suffering," a more easily satisfied test for cruel and unusual punishment. While expressing reservations about the use of pancuronium bromide (which, among other things, prevents the prisoner from signaling his discomfort if he does not get enough of the barbiturate) and about the death penalty generally, Justice John Paul Stevens agrees that there isn't enough evidence on the record to overturn the procedure. Justices Antonin Scalia and Clarence Thomas say an execution method violates the Eighth Amendment "only if it is deliberately designed to inflict pain." The two dissenters were Justices Ruth Bader Ginsburg and David Souter, who favored remanding the case for consideration of whether Kentucky's failure to adopt safeguards used by other states to make sure the prisoner is unconscious "poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Here is my last comment on the subject, which includes links to earlier reason coverage.

I Don't Want Yoo to Show Them the Way

jsullum@reason.com (Jacob Sullum) — Wed, 16 Apr 2008 07:00:00 EDT

According to John Yoo, the president's powers under the Constitution are so broad that the Constitution itself cannot restrain them. In a recently declassified 2003 memo, the former Justice Department official asserted that Congress, despite its Article I powers to "make rules concerning captures on land and water" and "for the government and regulation of the land and naval forces," has no business regulating the treatment of military prisoners. Yoo also cited a 2001 memo in which he had concluded that "the Fourth Amendment had no application to domestic military operations."

Compared to Yoo, all three of the remaining major-party candidates for president sound moderate when they talk about executive power. But Barack Obama is the one who seems to care most about restoring the rule of law and the separation of powers after eight years of an administration that has sorely abused both.

Even the Justice Department has backed away from Yoo's maximalist position, although exactly how far isn't clear. In Senate testimony last week, Attorney General Michael Mukasey repeatedly dodged the question of whether he thinks the Pentagon is free to conduct unreasonable searches and seizures.

Such immunity from the Fourth Amendment would allow not just warrantless surveillance of international communications involving people in the U.S. but monitoring of purely domestic phone calls and email as well. Indeed, it would allow warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.

Yet the strongest reassurance Mukasey could offer was to say that "the Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime." Asked specifically whether that means it applies to "domestic military operations," he said, "I'm unaware of any domestic military operations being carried out today."

Mukasey's evasiveness is especially troubling in light of his refusal during his confirmation hearings to acknowledge that Congress has the constitutional authority to restrict National Security Agency wiretaps. Unlike Yoo, he did at least concede that the president is bound to obey a congressional ban on torture.

That is the area where John McCain has most clearly distinguished himself from the Bush administration. Last December, in response to a Boston Globe candidate survey focusing on executive power, the Arizona senator also said the president is not free to violate statutory restrictions on wiretaps, and he rejected the use of signing statements as a way of reserving the right to flout laws. But he took a broader view than the other candidates of the president's authority to detain "enemy combatants," and he declined to identify areas where the Bush administration has overstepped its constitutional authority.

Obama, by contrast, gave half a dozen detailed examples. In general, the Illinois senator's answers to the Globe's questions were direct, thoughtful, and complete, apparently reflecting a sincere determination to limit his own power if elected.

After the election, of course, such promises may not be worth much. But on that score I worry more about Hillary Clinton. The New York senator's answers to the Globe survey, though less detailed than Obama's, were similar in substance. I just find it hard to believe them.

Clinton agreed, for example, that the president has to seek congressional authorization before attacking another country, except in response to an "imminent threat." Yet she has bragged about urging her husband to bomb Serbia as part of an unauthorized war that had nothing to do with national defense.

Although Clinton now claims to have a modest view of presidential power, she was singing a different tune a few years ago. "I'm a strong believer in executive authority," she told George Stephanopoulos of ABC News in 2003. "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority." With the War on Terror as a rationale, her wish could be her command.

Acquittal First, Then Punishment

jsullum@reason.com (Jacob Sullum) — Fri, 11 Apr 2008 15:54:00 EDT

In a recent series of cases that led it to declare federal sentencing guidelines advisory rather than mandatory, the U.S. Supreme Court emphasized that it's the jury's responsibility, not the judge's, to determine the facts on which a defendant's punishment hinges. Allowing judges to make factual findings that trigger automatic sentence enhancements, it ruled, violates the Sixth Amendment right to trial by jury. At the same time, the Court has held that judges may rely on "the entire range of conduct" alleged by prosecutors, including counts rejected by the jury, when they impose sentences. The Court recently passed up an opportunity to revisit the 1997 decision in which it announced that rule, which is pretty hard to reconcile with the principle that people should be punished only for crimes of which they're been convicted.

At the end of last month, the Supreme Court declined to hear an appeal by Mark Hurn, a Madison, Wisconsin, man who was arrested in 2005 after a police search of his home found 450 grams of crack cocaine, 50 grams of powder cocaine, and $38,000 in cash. Hurn admitted selling cocaine but insisted the crack belonged to other people who lived with him. The jury convicted him of cocaine powder possession, which carried a penalty of two to three years, but acquitted him of crack possession. The judge nevertheless punished him as if he'd been convicted of the crack charge, imposing an 18-year sentence. The U.S. Court of Appeals for the 7th Circuit conceded that Hurn's sentence was "almost entirely" based on the crack charge that the jury had rejected (which also illustrates the arbitrary disparity in punishment between smoked and snorted cocaine) but approved the punishment anyway, citing the "entire range of conduct" rule.

[via the Drug War Chronicle]

Is Obama's Position on the D.C. Gun Ban a Mystery?

jsullum@reason.com (Jacob Sullum) — Wed, 09 Apr 2008 18:22:00 EDT

Conservative columnist Robert Novak, who last month claimed Barack Obama "has weighed in against the D.C. [gun] law," now describes the Illinois senator's position as "unrevealed":

In response to my inquiry about his specific position, Obama's campaign e-mailed me a one-paragraph answer: Obama believes that while the "Second Amendment creates an individual right... he also believes that the Constitution permits federal, state and local government to adopt reasonable and common sense gun safety measures." Though the paragraph is titled "Obama on the D.C. Court case," the specific gun ban is never mentioned. I tried again, without success, last week to learn Obama's position before writing this column.

But at a February 15 press conference in Milwaukee, Obama made it pretty clear that, while he believes the Second Amendment protects an individual right to arms, he does not think Chicago's handgun ban or the D.C. gun law, which effectively prohibits keeping a firearm at home for self-defense, violates that right:

There's been a longstanding argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation....I think that local jurisdictions have the capacity to institute their own gun laws...The City of Chicago has gun laws, as does Washington, D.C. I think the notion that somehow local jurisdictions can't initiate gun safety laws to deal with gang-bangers and random shootings on the street isn't borne out by our Constitution.

I pieced these quotations together from an A.P. story, an ABC News report, and a Chicago Tribune blog item; I haven't been able to locate a complete transcript. But Obama's meaning does not seem mysterious to me. Indeed, A.P. matter-of-factly reported that "he voiced support for the District of Columbia's ban on handguns"—although, to be fair to Novak, ABC News legal correspondent Jan Crawford Greenburg interpreted Obama's remarks differently, saying "he declined...to take a position on whether the D.C. gun ban violates the Second Amendment."

This is not just nitpicking. Obama's past positions on gun control and recent statements about gun rights provide little reason to believe he takes the Second Amendment seriously. And as I've argued, it's hard to see what meaningful restrictions the Second Amendment imposes on gun control if something like the D.C. law can pass constitutional muster.

Getting His Goat

jsullum@reason.com (Jacob Sullum) — Tue, 08 Apr 2008 14:48:00 EDT

Jose Merced, a Santeria priest in Euless, Texas, is challenging the city's refusal to let him sacrifice goats. Last month a federal judge upheld Euless' ban on animal sacrifice, and today the Becket Fund for Religious Liberty filed an appeal on Merced's behalf with the U.S. Court of Appeals for the 5th Circuit.

In Employment Division v. Smith, a 1988 case involving the Native American Church's peyote rituals, the U.S. Supreme Court held that "neutral laws of general applicability" do not violate the First Amendment's guarantee of religious freedom merely because they make it difficult or impossible for someone to practice his religion. But five years later, in a case that seems quite similar to Merced's, the Court unanimously overturned ordinances banning animal sacrifice in Hialeah, Florida. Since those ordinances, a direct response to the opening of a Santeria church, singled out the type of animal slaughter practiced by Santerians, the Court concluded they were not "neutral laws of general applicability." Hence they could be justified only if they were narrowly tailored to serve a compelling government interest, which they weren't. Although Euless claims to be protecting public health, it likewise prohibits religious slaughter in particular, while allowing the killing of deer and other animals for food. Becket Fund attorney Lori Windham asks:

Why is it okay to butcher a deer in Euless, but not a goat? The issue of Santeria and animal sacrifice has already been decided by the United States Supreme Court. I'm pretty sure the Constitution of the United States still applies in Euless, Texas.

Last year I explored the legal fallout from Smith in a reason story about religious use of drugs.

When They Knock Kick at Your Front Door

matt.welch@reason.com (Matt Welch) — Tue, 08 Apr 2008 08:32:00 EDT

Phillip Carter, now blogging over at the Washington Post, discovers an especially rancid paragraph from the John Yoo torture memo released last week claiming that whatever 4th Amendment protections we have left no longer apply when it's the U.S. military doing the searching and seizing:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001). [italics in original]

Carter tries to figure out what it all means:

It could refer to the National Security Agency's now-well-publicized surveillance program -- a program grounded in many of the same constitutional theories of presidential power that underlie the torture memoranda. It could also refer to deployment of federal military forces within the United States and action they could take against U.S. citizens, such as hypothetically searching someone's bag for suspected explosives at an airport. (It should be noted that most soldiers deployed for homeland security are state National Guard soldiers, who for complex reasons are subject to different legal rules than federal soldiers.) Or the footnote could refer to clandestine domestic military operations conducted by the Defense Department and its intelligence components -- things we can only guess at.

UPDATE: Senior Editor Jacob Sullum was all over this last week. Excerpt:

That position provides a legal rationale not just for the National Security Agency's warrantless surveillance of international communications involving people in the U.S. but for monitoring of purely domestic phone calls and email as well. Indeed, it justifies warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.
The Justice Department has repudiated both Yoo's March 2003 memo and his August 2002 memo addressing torture. But it's not clear to what extent it still concurs with Yoo's sweeping view of executive power. During his confirmation hearings, Attorney General Michael Mukasey conceded that the president is bound to obey statutes regulating the treatment of military prisoners. But he dodged the question of whether Congress has the authority to regulate domestic surveillance conducted in the name of national security. No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise. Now we know better.

Excuse Me While I Post the Sky

jsullum@reason.com (Jacob Sullum) — Fri, 04 Apr 2008 11:58:00 EDT

Recently I've noted several cases in which state courts have interpreted state constitutions as providing greater privacy protection than the Fourth Amendment, as read by the U.S. Supreme Court, does. Last week the Vermont Supreme Court provided another example, ruling that prolonged helicopter surveillance of a marijuana grower's property from heights as low as 100 feet violated the state constitution's ban on "unreasonable government intrusions into legitimate expectations of privacy." It's not completely clear that the U.S. Supreme Court would have ruled differently under the Fourth Amendment, but I suspect it would have. The most similar case it has addressed involved a police helicopter that circled twice over a marijuana grower's greenhouse at a height of 400 feet, which the Court said did not constitute a search.

In last week's decision, by contrast, the Vermont Supreme Court declared that "Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property":

Vermonters normally expect their property to remain private when posted as such. We have also recognized that Vermonters normally have high expectations of privacy in and around their homes. Therefore, we think it is also likely that Vermonters expect—at least at a private, rural residence on posted land—that they will be free from intrusions that interrupt their use of their property, expose their intimate activities, or create undue noise, wind, or dust....
In this case, defendant has demonstrated that he has a subjective expectation of privacy in his back yard. He has taken precautions to exclude others from his back yard by posting his land and by communicating to a local forest official that he did not want people trespassing on his land....It is of no moment that defendant could not effectively post his sky.

My favorite part is that the state police did the aerial search at the suggestion of that "local forest official," who "found defendant's insistence on privacy to be 'paranoid.'"

[via the Drug War Chronicle]

The All-Powerful Commander in Chief

jsullum@reason.com (Jacob Sullum) — Thu, 03 Apr 2008 13:43:00 EDT

In a recently declassified March 2003 memo to the Pentagon's top lawyer, former Deputy Assistant Attorney General John Yoo lays out "the legal standards governing military interrogations of alien unlawful combatants held outside the United States." Yoo reiterates his notoriously demanding definition of torture, which requires suffering "equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result." But this generous understanding of how far the Pentagon can go without violating the statutory prohibition of torture is not really necessary, since Yoo asserts that Congress has no authority under the Constitution to ban the torture of military prisoners in the first place:

In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy....One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the enemy....The President enjoys complete discretion in the exercise of his Commander-in-Chief authority in conducting operations against hostile forces....Congress cannot interfere with the President's exercise of his authority as Commander in Chief to control the conduct of operations during a war....Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority....Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.

According to Yoo, then, no statutory restriction on the Pentagon's treatment of its prisoners, presumably including "enemy combatants" unilaterally identified by the president and arrested on U.S. soil, could be legally binding, because it would unconstitutionally impinge on the president's powers as commander in chief. Never mind that the Constitution gives Congress the authority not only to declare war but "to make rules concerning captures on land and water," "to make rules for the government and regulation of the land and naval forces," and to suspend the habeas corpus privilege "in cases of rebellion or invasion," all of which seem to imply that the legislative branch has some say regarding the handling of military prisoners.

In Yoo's view, the president's constitutional powers are so broad that the Constitution itself cannot restrain them. As the ACLU notes, a footnote on page 8 of the memo refers to a still-classified October 2001 document in which the Justice Department's Office of Legal Counsel "concluded that the Fourth Amendment had no application to domestic military operations." That position provides a legal rationale not just for the National Security Agency's warrantless surveillance of international communications involving people in the U.S. but for monitoring of purely domestic phone calls and email as well. Indeed, it justifies warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.

The Justice Department has repudiated both Yoo's March 2003 memo and his August 2002 memo addressing torture. But it's not clear to what extent it still concurs with Yoo's sweeping view of executive power. During his confirmation hearings, Attorney General Michael Mukasey conceded that the president is bound to obey statutes regulating the treatment of military prisoners. But he dodged the question of whether Congress has the authority to regulate domestic surveillance conducted in the name of national security. No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise. Now we know better.

The full text of the March 2003 memo is available from the ACLU here.

The School Crotch Inspector

jsullum@reason.com (Jacob Sullum) — Wed, 02 Apr 2008 07:00:00 EDT

There are two kinds of people in the world: the kind who think it's perfectly reasonable to strip-search a 13-year-old girl suspected of bringing ibuprofen to school, and the kind who think those people should be kept as far away from children as possible. The first group includes officials at Safford Middle School in Safford, Arizona, who in 2003 forced eighth-grader Savana Redding to prove she was not concealing Advil in her crotch or cleavage.

It also includes two judges on the U.S. Court of Appeals for the 9th Circuit, who last fall ruled that the strip search did not violate Savana's Fourth Amendment rights. The full court, which recently heard oral arguments in the case, now has an opportunity to overturn that decision and vote against a legal environment in which schoolchildren are conditioned to believe government agents have the authority to subject people to invasive, humiliating searches on the slightest pretext.

Safford Middle School has a "zero tolerance" policy that prohibits possession of all drugs, including not just alcohol and illegal intoxicants but prescription medications and over-the-counter remedies, "except those for which permission to use in school has been granted." In October 2003, acting on a tip, Vice Principal Kerry Wilson found a few 400-milligram ibuprofen pills (each equivalent to two over-the-counter tablets) and one nonprescription naproxen tablet in the pockets of a student named Marissa, who claimed Savana was her source.

Savana, an honors student with no history of disciplinary trouble or drug problems, said she didn't know anything about the pills and agreed to a search of her backpack, which turned up nothing incriminating. Wilson nevertheless instructed a female secretary to strip-search Savana under the school nurse's supervision, without even bothering to contact the girl's mother.

The secretary had Savana take off all her clothing except her underwear. Then she told her to "pull her bra out and to the side and shake it, exposing her breasts," and "pull her underwear out at the crotch and shake it, exposing her pelvic area." Sometimes it's hard to tell the difference between drug warriors and child molesters.

"I was embarrassed and scared," Savana said in an affidavit, "but felt I would be in more trouble if I did not do what they asked. I held my head down so they could not see I was about to cry." She called it "the most humiliating experience I have ever had." Later, she recalled, the principal, Robert Beeman, said "he did not think the strip search was a big deal because they did not find anything."

The U.S. Supreme Court has held that a public school official's search of a student is constitutional if it is "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place." This search was neither.

When Wilson ordered the search, the only evidence that Savana had violated school policy was the uncorroborated accusation from Marissa, who was in trouble herself and eager to shift the blame. Even Marissa (who had pills in her pockets, not her underwear) did not claim that Savana currently possessed any pills, let alone that she had hidden them under her clothes.

Savana, who was closely supervised after Wilson approached her, did not have an opportunity to stash contraband. As the American Civil Liberties Union puts it, "There was no reason to suspect that a thirteen-year-old honor-roll student with a clean disciplinary record had adopted drug-smuggling practices associated with international narcotrafficking, or to suppose that other middle-school students would willingly consume ibuprofen that was stored in another student's crotch."

The invasiveness of the search also has to be weighed against the evil it was aimed at preventing. "Remember," the school district's lawyer recently told ABC News by way of justification, "this was prescription-strength ibuprofen." It's a good thing the school took swift action, before anyone got unauthorized relief from menstrual cramps.

© Copyright 2008 by Creators Syndicate Inc.

A Clean Page

jsullum@reason.com (Jacob Sullum) — Fri, 21 Mar 2008 18:03:00 EDT

Last week a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously ruled (PDF) that the pre-employment drug testing policy of the Woodburn Library in Woodburn, Oregon, violates the Fourth Amendment. The court said the city of Woodburn, which runs the library, had not demonstrated any "special need" that would override a would-be page's reasonable expectation of privacy. The court rejected the city's claim that the position of library page is "safety-sensitive" (citations omitted):

Jobs are considered safety-sensitive if they involve work that may pose a great danger to the public, such as the operation of railway cars, the armed interdiction of illegal drugs, work in a nuclear power facility, work involving matters of national security, work involving the operation of natural gas and liquified natural gas pipelines, work in the aviation industry, and work involving the operation of dangerous instrumentalities, such as trucks that weigh more than 26,000 pounds, that are used to transport hazardous materials, or that carry more than fourteen passengers at a time. The work of a page, so far as the record discloses, entails nothing of this order of magnitude.

I don't know about that. If you put an oversized book on the wrong shelf, it could fall off and hit somebody's head. I bet that would smart.

The 9th Circuit relied largely on a 1997 case in which the Supreme Court overturned a Georgia requirement that candidates for public office undergo urine tests, which the Court viewed as a purely symbolic measure. By contrast, the Court has upheld suspicionless drug testing for railroad workers and for people seeking Customs Service positions that involve carrying a gun, handling classified material, or participating in drug interdiction. Based on a more paternalistic rationale, the Court also has held that public schools may constitutionally require students participating in sports or other extracurricular activities to surrender their urine. Woodburn tried to combine the safety and for-the-children arguments by noting that children use the library and pages sometimes fill in at the youth services desk. The appeals court did not buy it, but I think the Supreme Court might.

[via NORML]

Counting to Five in D.C. v. Heller

jsullum@reason.com (Jacob Sullum) — Wed, 19 Mar 2008 18:04:00 EDT

In one of the threads about the D.C. gun ban case, at least one commenter was skeptical that there are (at least) five votes on the Supreme Court in favor of an individual-right interpretation of the Second Amendment. If you read the transcript of yesterday's oral arguments, you'll see that John Roberts, Antonin Scalia, Samuel Alito, and Anthony Kennedy are pretty clearly on board:

Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?...
That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable....
So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns]
Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia....The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed....
[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns...they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?
Kennedy: The amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms....
In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.

Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias.

D.C. ♥ Armed Self-Defense

jsullum@reason.com (Jacob Sullum) — Wed, 19 Mar 2008 14:07:00 EDT

Defending the Washington, D.C., gun ban before the Supreme Court yesterday, Walter Dellinger insisted it was never the city's intent to prohibit residents from using rifles and shotguns for self-defense in the home. All it wanted to do, Dellinger said, was ban handguns, because they are highly portable, readily concealable, easily stolen, and uniquely suited to urban crime. Even if (as seems likely) the Supreme Court rules that the Second Amendment protects an individual right to arms, he said, it should uphold the handgun ban as a "reasonable regulation":

Chief Justice John Roberts: What is reasonable about a total ban on possession?
Dellinger: What is reasonable about a total ban on possession is that it's a ban only on the possession of one kind of weapon, of handguns, that's been considered especially dangerous....There is no showing in this case that rifles and [shotguns] are not fully satisfactory to carry out the purposes [of self-defense].

But as Roberts, Justice Samuel Alito, and Justice Antonin Scalia noted, D.C. requires that all firearms, including long guns, be kept "unloaded and disassembled or bound by a trigger lock or similar device." The statute does not include an exception for self-defense. It thus seems to rule out unlocking and loading a gun even while under attack, let alone keeping one loaded and unlocked in case of an attack. Dellinger nevertheless maintained that the law does not prohibit the possession of functional firearms in the home, contrary to the interpretation the city has offered in previous cases and the one it implicitly endorsed at the U.S. District Court level in this case.

The District, which initially was openly contemptuous of the argument that D.C. residents should be allowed to defend themselves with guns, apparently has warmed to the idea. "It is a universal or near universal rule of criminal law that there is a self-defense exception," Dellinger said. "We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense." He added that "there ought to be an opportunity for the District of Columbia to urge its construction, which would allow for a relatively robust self-defense exception to the trigger lock provision." To which Scalia replied:

I don't understand that. What would that be—that you can, if you have time, when you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it, and then fire? Is that going to be the exception?

Dellinger said he reads the storage requirement as permitting two options: "unloaded and disassembled" or "bound by a trigger lock" (as opposed to "unloaded and disassembled" or "unloaded and bound by a trigger lock"). In other words, it's OK to keep a gun loaded as long as it's locked, which Dellinger said can be accomplished with a combination lock that can be removed in three seconds. Two justices wondered if the operation would be that fast in an actual emergency:

Scalia: You turn on the lamp next to your bed so you can turn the knob at 3-22-95...
Roberts: You turn on the lamp, you pick up your reading glasses...

At another point Dellinger said a good test case would involve "a loaded gun on [the] night stand, no children present, without a trigger lock." If a gun owner could escape conviction for violating the storage requirement in those circumstances, he said, "I think then the statute might well be constitutional." If not, "in my view, it probably wouldn't be."

Note that all of Dellinger's proposed end runs around the plain language of the storage requirement involve getting arrested for exercising the fundamental right of self-defense and hoping the courts will be sympathetic—a situation that, as I argued last week, should be considered unacceptable. In the end, Dellinger basically invited the Court to throw out the storage provision, saying, "if we are wrong about that and the trigger lock [requirement] is invalid, that has no effect on the handgun ban."

A transcript of the oral arguments is available here (PDF). A ruling is expected in June.

D.C. Gun Ban Arguments

jsullum@reason.com (Jacob Sullum) — Tue, 18 Mar 2008 17:41:00 EDT

Based on today's oral arguments in District of Columbia v. Heller, Reuters counts at least five votes for the individual-right interpretation of the Second Amendment and against the constitutionality of the D.C. gun ban:

A majority of the nine-member high court seemed to support the view that the Second Amendment of the U.S. Constitution protected an individual right to keep and bear arms, rather than a right tied to service in a state militia....
"What is reasonable about a total ban on possession?" Chief Justice John Roberts asked Washington, D.C.,'s lawyer, Walter Dellinger, referring to a provision barring private possession of handguns.

Dellinger said the ban was only on the weapons that have been considered especially dangerous.

Justice Samuel Alito, who like Roberts was appointed by President George W. Bush, cited another provision requiring rifles or shotguns be kept unloaded and dissembled or bound by a trigger lock, and said it did not seem as if they could be used as such for the self-defense of one's home.

If Roberts and Alito are inclined to uphold the D.C. Circuit decision overturning the gun ban, that bodes well for defenders of the Second Amendment, since Clarence Thomas and Antonin Scalia presumably are as well. As for Anthony Kennedy, A.P. reports that he "said the Second Amendment gives 'a general right to bear arms.'"

Addendum: The Washington Post concurs with Reuters' assessment, saying, "A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia's handgun ban could be considered a reasonable restriction on that right." Both Reuters and the Post implicitly distinguish between believing the Second Amendment protects an individual right to arms and viewing the D.C. law as unconstitutional. But as I've said, the latter is required by the former, unless the Court is prepared to say the Second Amendment does not apply in the nation's capital (as Laurence Tribe has argued) or implausibly interpret D.C.'s law as permitting people to use long guns for self-defense, something its plain terms seem to rule out.

Second Amendment Scrutiny

jsullum@reason.com (Jacob Sullum) — Mon, 17 Mar 2008 13:38:00 EDT

On the eve of oral arguments in District of Columbia v. Heller, here are a few articles that may be of interest to people following the case:

Alan Gura and Robert Levy, two of the lawyers representing D.C. resident Dick Heller in his Second Amendment challenge to his city's gun ban, summarize their arguments in the Legal Times.

The New York Times notes the division between Solicitor General Paul Clement and Vice President Dick Cheney regarding the level of scrutiny that gun control should get under the Second Amendment, mentioning the Robert Novak column I discussed last week.

The intra-administration split is also mentioned in The Washington Post's preview of the case.

Gura and Levy say the Supreme Court need not specify a level of review: "Because Dick Heller challenges a categorical ban on handguns, as well as a near-total prohibition on exercise of Second Amendment rights relating to long guns, the outcome of the case does not depend on applying a specific constitutional standard of review." But if the Court decides to set a standard, they add, strict scrutiny—meaning that regulations must be the least restrictive means of achieving a compelling government interest—is clearly appropriate, since the right to keep and bear arms, which grows out of the right to self-defense, is a fundamental right. They say regulations such as "the ban on felons possessing firearms, instant background checks for gun buyers, and sentence enhancements for using a gun in commission of a crime" would survive strict scrutiny.

In my column last week, I suggested that if D.C.-style gun control does not violate the Second Amendment, it's hard to imagine what sort of gun control would.

Faith of our Fathers

gillespie@reason.com (Nick Gillespie) — Mon, 17 Mar 2008 12:00:00 EDT

Were the Founding Fathers religious? Deist? Apatheists?

In Sunday's New York Post (founded by Alexander Hamilton!), reason's Nick Gillespie takes a look at a fascinating new book about the origins of religious freedom in America, answers thoose questions, gives a shout-out to Moloch, and tips a tricorn hat to James Madison. All in less time than it takes to go to a drive-through Mennonite service.

Read all about it here.

They Ain't Gonna Pee-Pee in No Cup

jsullum@reason.com (Jacob Sullum) — Fri, 14 Mar 2008 10:59:00 EDT

Yesterday the Washington Supreme Court unanimously ruled that random drug testing of student athletes violates the state constitution. The U.S. Supreme Court has upheld random testing not only of athletes but of students participating in other extracurricular activities as well, and its logic (such as it is) suggests that random testing of all students also would be consistent with the Fourth Amendment. But Washington's constitution has a privacy guarantee that goes beyond the prohibition of unreasonable searches and seizures, saying, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The state Supreme Court has read this clause as providing more protection than the Fourth Amendment, which is why Washington is one of the few states without drunk driving roadblocks. It also seems to be a pretty strong argument against the state law that makes it a felony to place an online bet in the privacy of one's home.

The Washington Supreme Court ruling on student drug testing is here. A couple months ago, I noted that Washington Gov. Christine Gregoire wants to hop on the sobriety checkpoint bandwagon, despite the state Supreme Court's ruling that suspicionless traffic stops violate the constitution she has sworn to uphold. A challenge to Washington's gambling law, based on arguments that it conflicts with the federal Wire Act and the Commerce Clause, is scheduled to be heard next month.

Washington is not the only state where residents enjoy more privacy protection than the Fourth Amendment (as currently read) guarantees. The Pennsylvania Supreme Court, for example, has taken a dimmer view of student drug testing than the U.S. Supreme Court. The Alaska Supreme Court has interpreted the state constitution's privacy clause, which says the "right of the people to privacy is recognized and shall not be infringed," as prohibiting prosecution of people for possessing small amounts of marijuana at home. It has approved drug testing of police and firefighters applying for promotion or transfer but has ruled that random testing of police and firefighters is unconstitutional.

[Thanks to sage and Jim Anderson for the tip.]

Bush Does Care About the Second Amendment, Just Not Very Much

jsullum@reason.com (Jacob Sullum) — Thu, 13 Mar 2008 11:18:00 EDT

Robert Novak reports that "disorganization and weakness in the eighth year of [Bush's]presidency" are responsible for the bizarre split within the Bush administration over whether the Supreme Court should uphold the D.C. Circuit decision overturning the District of Columbia's gun ban. To the dismay of gun rights advocates, Solicitor General Paul Clement is asking the Court to send the case back to the D.C. Circuit to consider whether the District's laws can withstand "intermediate scrutiny" under the Second Amendment. Vice President Dick Cheney, meanwhile, has joined 55 senators and 250 House members (in his capacity as president of the Senate) in a brief that urges the Court to uphold the D.C. Circuit ruling, saying that "the District's prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable per se" and that "no purpose would be served by remanding this case for further fact finding or other proceedings." Novak claims the president agrees with Cheney:

The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court....The president could have ordered a revised brief by Clement. But under congressional Democratic pressure to keep hands off the Justice Department, Bush did not act....
While [Cheney's] unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional legislative branch role as president of the Senate.

Lord knows Novak's sources are much better than mine, but I'm not sure I buy this. If Bush cared enough about the issue, he could and would have intervened. This part is even more suspect:

Bush finds himself left of Democratic presidential candidate Sen. Barack Obama....Sen. Obama has weighed in against the D.C. law, asserting that the Constitution confers individual rights to bear arms—not just collective authority to form militias.

As I pointed out in my column a few weeks ago, Obama has specifically cited D.C.'s ban as an example of gun control that should be upheld notwithstanding the individual right to keep and bear arms. In this week's column, I explain why that position is so hard to defend.

Clement's brief is here (PDF). The congressional brief signed by Cheney is here (PDF). Last month Brian Doherty noted an op-ed piece criticizing the Justice Department's position by Cato Institute legal scholar Bob Levy, who spearheaded (and financed) the gun ban challenge. The Goldwater Institute gets into more detail here (PDF).

Safety in Defenselessness

jsullum@reason.com (Jacob Sullum) — Wed, 12 Mar 2008 07:00:00 EDT

In a recent Wall Street Journal op-ed piece, Harvard law professor Laurence Tribe urged the U.S. Supreme Court to uphold the District of Columbia's gun restrictions, the subject of a case the Court will hear next Tuesday. Conceding that the Second Amendment guarantees an individual right to possess firearms, Tribe said that right does not rule out a decision to ban handguns while allowing "rifles, shotguns and other weapons less likely to augment urban violence."

The U.S. Court of Appeals for the D.C. Circuit disagreed, concluding that the District cannot constitutionally ban the type of gun most commonly used for self-defense. But even if Tribe is right that the Second Amendment allows D.C. to ban handguns, he is wrong to assume D.C. residents are free to use long guns instead.

D.C. requires that all firearms in the home, including rifles and shotguns, be kept "unloaded and disassembled or bound by a trigger lock or similar device." That "safe storage" requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. It makes D.C.'s gun laws look extreme even compared to those of other cities that ban handguns. If D.C.-style gun control does not violate the Second Amendment, it's hard to imagine what sort of gun control would.

The "safe storage" rule includes exceptions for guns kept in places of business and for guns "being used for lawful recreational purposes within the District of Columbia." It does not include an exception for self-defense at home.

Although three of the original plaintiffs in the D.C. gun ban case said they wanted to keep functional long guns in their homes, the District did not claim they already were allowed to do so. Instead it dismissed the very idea of armed self-defense as self-evidently absurd. "It cannot be seriously contended that the Second Amendment, even if applicable, guarantees private persons a right of ownership or possession of firearms on the basis of an asserted need to resort to self-help," D.C.'s lawyers told U.S. District Judge Emmet Sullivan.

But when the plaintiffs appealed Sullivan's dismissal of their complaint, the District suddenly began to suggest there might be exceptions to the "safe storage" requirement that are not mentioned in the statute. "The [D.C.] Council appears to have recognized that on rare occasions, in the event of a true emergency when necessary for self-defense, a gun could be unlocked," it said.

The only evidence the District cited for this claim was one council member's remark about how long it takes to unlock and load a gun. The District nevertheless suggested that "local courts are likely to give the law a narrowing construction for emergencies."

That possibility does not save the statute, the D.C. Circuit ruled, since "judicial lenity cannot make up for the unreasonable restriction of a constitutional right." Furthermore, a "narrowing construction" is by no means a foregone conclusion.

In its Supreme Court brief, the District asserts that an exception for self-defense at home "is fairly implied in the trigger lock requirement," but it does not explain how. Courts reasonably could read the law's specific "safe storage" exceptions to mean there are no other exceptions.

As Bellingham, Washington, attorney Jeffrey Teichert notes in a friend-of-the-court brief, D.C. courts have convicted residents of violating other gun regulations even when they used their weapons for self-defense. In one such case, the District argued that "self-defense would only excuse the use of the weapon, not the possession of the weapon."

This sort of uncertainty would be considered intolerable in the exercise of any other fundamental right. Could a law requiring that books in the home be kept under lock and key be redeemed by arguing that courts probably would give it a "narrowing construction"? If the right to keep and bear arms means anything in practical terms, it means that someone who uses a gun to defend himself in his own home should not have to throw himself on the mercy of the courts.

The Long and the Short of the Second Amendment

jsullum@reason.com (Jacob Sullum) — Tue, 04 Mar 2008 17:44:00 EST

If you, like me, were wondering how support for the D.C. gun ban can be reconciled with the belief that the Second Amendment protects an individual right to arms, you might want to check out Harvard law professor Laurence Tribe's op-ed piece in today's Wall Street Journal. Tribe, who switched to the individual-right view of the Second Amendment several years ago, nevertheless urges the Supreme Court to uphold the D.C. law when it considers the case later this month. He says the Second Amendment does not guarantee "an absolute right to possess the weapons of one's choice" and so does not rule out a handgun ban. "Under any plausible standard of review," he writes, "a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms. "

Tribe ignores another aspect of D.C.'s gun law, the provision requiring that even long guns be kept "unloaded and disassembled or bound by a trigger lock." That requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. But Tribe has another argument against accepting the D.C. Circuit's conclusion that the gun ban is unconstitutional:

It would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government's uniquely powerful role as governor of the nation's capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.
Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.

In other words, the Second Amendment, which says "the right of the people to keep and bear arms shall not be infringed," simply does not apply in the District of Columbia. So I guess we can forget that part about handguns vs. long guns.

On a blog devoted to the D.C. gun case, Alan Gura, one of the attorneys representing plaintiff Dick Heller, seems surprised by Tribe's position:

This is quite a change from Prof. Tribe's position in May 2007. At that time, in correspondence with us, Tribe said he would consider playing a "more central role" in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center. It's difficult to see how his current position would accomplish that goal.

The Mukasey Paradox

rbalko@reason.com (Radley Balko) — Tue, 04 Mar 2008 11:57:00 EST

Jonathan Turley meshes Attorney General Michael Mukasey's positions on torture (it isn't illegal if the president's legal advisers say it isn't) and his refusal to entertain contempt charges against Harriet Miers and Josh Bolton (it isn't illegal if the president orders it) to come up with Mukasey's perfect paradox:

Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers.

The predictable result is an unchecked executive. Turley finds the logic "beautiful." I'd probably use some other adjectives.

Thanks to Jonathan Blanks for the tip.