Short Circuit: A Roundup of Recent Federal Court Decisions

Bad language, Batman, and bias responses.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: A special Ninth Circuit edition recorded before a live student audience at UCLA Law. Featuring UCLA Professors Eugene Volokh and Richard Re as well as Jones Day Associate Robert Everett Johnson. Click here for iTunes.

  • Fed up with conditions for laboratory animals at Howard University, attending veterinarian contacts the NIH to let it know about the recent deaths from heat exhaustion of 21 mice. The university responds by shortening her contract by six months. D.C. Circuit: Which may be illegal retaliation against a False Claims Act whistleblower.
  • During a criminal trial of four co-defendants, a juror's wife is diagnosed with a brain tumor. Three of the defendants agree to proceed with a jury of 11. The government agrees to proceed if all four defendants agree to do so. The fourth defendant—who has tried repeatedly to get out of the case—holds out. The court declares a mistrial. Does double jeopardy bar retrial? First Circuit: Not at all. The mistrial was manifestly necessary. (Plus, the defense now has a sneak peek at the prosecution's case.)
  • Allegation: Connecticut voting law counts prisoners in the district where their prison is located rather than their home district—even though most do not have the right to vote and those who do can vote only in their home district. Which artificially inflates voting power in the white rural areas where prisons are located and deflates representation in the majority-minority urban areas of the state. Second Circuit: This should be heard before a three-judge panel at the district court.
  • The Mohegan Sun Arena, a publicly owned Wilkes-Barre, Penn. event space, sequesters protestors in a special enclosure near the arena's entrances. The facility also prohibits protestors from swearing or using megaphones. Animal rights group: Those restrictions violate the First Amendment! Third Circuit: Yes and no. The special enclosure is valid since that's a reasonable measure to prevent congestion at the arena's entrances. But singling out protestors for bans on profanity and megaphones? The arena hasn't come close to justifying those rules.
  • When New Jersey repealed its prohibition on sports betting, the NCAA, NFL, NBA, MLB, and NHL sued, arguing repeal violated federal law. The leagues won in the trial court, but racetrack owners who wanted to offer sports betting eventually won before the U.S. Supreme Court. Can the racetrack owners now collect on the $3.4 million the leagues were forced to put up as bond after they won a temporary restraining order in the trial court? Third Circuit (over a dissent): That's the risk the leagues ran when they asked for a TRO.
  • Dallas-area photographer responds to the scene of an overdose, begins photographing victim and paramedics. Transit officer orders him to stop and arrests him when he refuses to do so. Whoops! Transit department guidelines—adopted while the officer was on medical leave—explicitly permit this sort of photography. Fifth Circuit: Reasonable officers know they can't arrest you for things that aren't illegal. No qualified immunity.
  • This Sixth Circuit opinion (holding that sovereign citizens' unconventional beliefs are not enough to stop them from representing themselves) contains, in the view of your humble editors, a surprisingly touching tribute to individual autonomy—as well as a narrative menagerie including Batman and 46 quintillion dollars.
  • The University of Michigan has established a "Bias Response Team" that responds to student-reported "bias incidents." Although it lacks any power to impose punishments, it can make referrals to police or the university. Does that unconstitutionally chill speech? A free speech advocacy group whose members attend the school has associational standing to find out, says two-thirds of a Sixth Circuit panel.
  • Detroit police raid home. Oops! The owner is—unbeknownst to the officers—a licensed medical marijuana provider, who is not pleased when an officer shoots, kills two of his dogs. Owner: The dogs were calm. Officer: The dogs were aggressive. And one was unlicensed and therefore contraband. Sixth Circuit: No qualified immunity. The owner can sue the officer.
  • Sixth Circuit: Getting stinking drunk and then cleaning a gun may be "dumb," but, without more, it does not justify involuntary commitment. No qualified immunity for cops who committed a woman for doing just that. Dissent: You'd be singing a different tune if the gun owner had actually harmed herself following the text message "Good bye." The police acted reasonably.
  • The U.S. Supreme Court's decision in Reed v. Town of Gilbert worked a revolution in the First Amendment treatment of content-based regulation of signs. Seventh Circuit: Which doesn't help the owners of Leibundguth Storage & Van Service in Downers Grove, Ill., whose sign (picture in opinion) is treated just as badly as anyone else's.
  • Allegation: Driver attempts to exit mall parking lot to avoid approaching security guard, an off-duty Little Rock, Ark. police officer. As the car drives away from the officer, he opens fire, hitting the driver in the back four times and a passenger in the face. Excessive force? Officer: The car was actually backing up toward me and other guards when I fired. Eighth Circuit: This goes to a jury. No qualified immunity. (Per The Washington Post, the officer was involved in 69 use of force incidents over six years.)
  • Tenth Circuit: There's chutzpah and then there's arguing that the guards you employ to provide security to state-legal marijuana businesses can't avail themselves of federal labor law because they participate in "drug trafficking."
  • State court in Bryan County, Ga. issues man an $895 speeding ticket. Man: I don't have that kind of cash on me right now. Judge: OK, pay it within two weeks. The man pays the fine the next day. But months later, a probation officer submits a warrant for the man's arrest for … not paying the fine. And months after that, he's arrested. And briefly jailed. Which causes him to get fired from his job. Eleventh Circuit: The probation officer enjoys qualified immunity from the man's federal claims, but she's not immune from the man's state-law tort claims.
  • Colorado police arrest two men for handing out information on jury nullification outside a Denver courthouse. A First Amendment violation? Colorado Supreme Court (over a dissent): No need to decide that. The statute applies only to efforts to influence a specific case, and these guys didn't care what cases prospective jurors might sit on.
  • And in en banc news, the Fourth Circuit will not reconsider its holding that the feds' power to regulate interstate commerce permits them to prosecute a man who attacked a coworker out of anti-gay animus. Judge Agee, who dissented from the panel ruling, writes that the issue of when noneconomic activity falls under the scope of the Commerce Clause is one the Supremes should address "without delay." The Fifth Circuit, however, will reconsider its recent holding that Mississippi's legislative boundaries (redrawn in 2012) dilute African Americans' voting strength in the Mississippi Delta in violation of the Voting Rights Act.

Zion, Ill. forces landlords to force tenants to submit to warrantless inspections of their homes. Landlords who refuse may face fines of up to $750 per day or have their right to rent property revoked altogether. Which doesn't sit right with Dorice and Robert Pierce, who have called their apartment home since 2000. After the Pierces demanded that inspectors produce a warrant before searching their home, officials threatened them with eviction (and their landlord with ruinous fines). Which is unconstitutional, so today the Pierces and their landlord joined with IJ to challenge Zion's rental inspection ordinance in federal court. Click here to learn more.

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  1. 5 years and counting of federal litigation over the tragic death of [checks notes] … mice.

  2. Sixth Circuit: Getting stinking drunk and then cleaning a gun may be “dumb,”

    Finalist: Least Necessary Use of Quotes of All Time

    1. It’s in quotes because it’s a quotation from the opinion.

  3. With regard to the Mohegan Sun Arena, why are protesters exercising a constitutional right of peaceable assembly any more responsible for “congestion,” than any other persons in the congested area? Seems like each person, there for whatever purpose, contributes one equal person-quantum of congestion. So what reasoning singles out only protestors to be confined in a “special enclosure?”

    1. The paid customers are also confined to a specific narrow route through the turnstiles.

    2. “each person, there for whatever purpose”

      What is your view on the government setting aside certain public places for specific uses at certain times? Some examples:

      A)The park is usually open for all uses, but the farmer’s market is scheduled for Sat. morning. When the vendors arrive to set up their booths in the designated areas, they find out that my interpretive dance class is using the place designated for the market stalls. Can the dancers be forced to yield the space to the previously scheduled use, or do we just cancel the farmer’s market?
      2)A Shakespeare in the Park performance is planned for a given time, which happens to be at the same place and time as my impromptu Sousa Brass Band performance. Must I yield the space to the actors, and audience who have arranged to be there at the appointed place and time, or must they try to hear the dialog while my band oom-pah-pahs away?

      1. Absaroka, my question was:

        So what reasoning singles out only protestors to be confined in a “special enclosure?

        If you are disinclined even to attempt an answer, just say so. On the other hand, if you do want to engage, and then point out established practices that my question seems to challenge, we can discuss those too. I am disinclined, however, to begin by making established practice the focus, instead of my question.

        So let’s hear it. What is your answer to my question?

        1. Both answers were to the point, which is that your point was pretty abysmal and needed clarification. Or is a strawman. Or is just irritatingly stupid for the sake of being irritatingly stupid.

        2. “So what reasoning singles out only protestors to be confined in a “special enclosure?”

          Oooookay. How about ‘time, place, and manner restrictions’?

          Also, the protesters aren’t ‘confined’. Rather, the areas needed for ingress/egress are reserved for people in the act of ingressing or egressing. Those people can be protesters or not. This isn’t a case where people wearing ‘Meat is Murder’ tee shirts are excluded from going to the baseball game or whatever; is is a case that Group X can’t impede other people from going to the baseball game, whatever their reason might be.

          TBH, I wouldn’t have guessed that you would be advocating that Pro-lifers have a constitutional right to impede access to abortion clinics. It just goes to show you never know about people.

          1. Oooookay. How about ‘time, place, and manner restrictions’?

            We went over that a week or so ago; Lathrop doesn’t think those apply to the right of assembly. (Based on what, you may ask? Nothing. Other than personal preference.)

            1. Heh. My chess club has been having a hard time scheduling a room at the civic center. I guess we can just assert our right to hold our meetings, I dunno, in the exit from the city hall parking lot at quitting time. When the mayor/city council call the cops to move us so they can go home, we’ll just assert our rights! What could possibly go wrong?

          2. Absaroka, time, place, and manner are for speech. They don’t fit assembly, and should not be against assemblies. That has happened a lot, but when it does happen, it raises the question of why speech and assembly are even different rights.

            The manner of assembly is prescribed. It has to be “peaceable.” The right says nothing about being timely, or conveniently placed.

            That said, I am not opposed to reasonable constraints, which can be shown to be the least burdensome possible. It is hard to imagine any instance in which those will be free speech zones, and especially not zones sequestered away from the places protesters wish to go to make their points.

            The history of assembly enforcement, at least from the mid-20th century on, has been a tale of pretexts, designed to rob assembly of any chance of achieving the political influence the right was intended to confer.

            Any proposed restriction on assembly which relies on a premise that some other use of public space gets the entire priority, and gives nothing up to the constitutional right of assembly, ought to be suspect. It seems absurd to me that some local ordinance, for instance, would foreclose the constitutional right. In what other area of law does local or state law take priority over the Bill of Rights?

            If you read the decision in question on this thread, it is a fair illustration of what I am talking about. The evidence showed, and the court seemed to acknowledge, that previous experience had demonstrated this group could conduct its demonstration without untoward disruption. Didn’t matter. The court introduced, I would say speculatively, the notion of congestion. It gave no consideration to show why would-be demonstrators had to give way to relieve congestion, while other users did not. That suggests pretext, and disregard for the right of assembly.

            1. “time, place, and manner are for speech. … assembly”

              So, in your private reality, this is a right of assembly case. But In the reality that the rest of us live in, including the Third Circuit, this is a free speech case. This is patently obvious to anyone reading the decision.

              “and the court seemed to acknowledge”

              What the court actually said:

              “The Arena’s related security and safety concerns are also legitimate. It is not unreasonable to anticipate disruption if protesters were allowed throughout the concourse…”
              “Defendants are not required to narrowly tailor speech restrictions in a nonpublic forum…”

              If you wish the law were different, fine, it’s a free country, you can wish for whatever changes in the law you like. But the court here is interpreting existing law.

              1. Yeah, anytime anyone says, “Hey, this is weird, and it looks systematically weird,” it is going to be possible to retort with, “private reality.” It is especially easy to do that if you choose not to respond to any of the arguments which suggest systematic weirdness.

                Show me any evidence the judge cites against the demonstrators which is anything but speculation. Your example above is speculation. Worse, it ignores evidence that in the past, the “disruption” the judge speculates about was attributable not to these demonstrators, but instead to one instance of someone flipping off the demonstrators, and that that caused no disruption. Nothing at all was cited against the demonstrators. To get around that, the court had to resort to making up imaginary bad demonstrators, who might show up in the future. Why isn’t that resort to “private reality,” by the court? Indeed, why isn’t that prejudice against the right of peaceable assembly?

                I would say that if the demonstrators have a record of not disrupting, then it is unreasonable to anticipate they will disrupt. But from the decision:

                It is not unreasonable to anticipate disruption if protesters were allowed throughout the concourse, particularly if a patron is confronted face-to-face by a protester she or he finds aggressive or disagreeable. For these reasons, we conclude the location condition is reasonable.

                Why is “anticipated” unreasonableness by someone who is not a protestor a reason to burden protest? Why is it the protestors’ responsibility to not be there, so that the venue operator will not have to manage speculative unreasonable responses by imaginary others, if they are there?

                I suggest it is because the “public reality,” is that this nation has a long history of suppressing constitutional free assembly, for the convenience of people in power who oppose the messages of less-powerful people who assemble. Indeed, powerful people do not like assembly on principle, because it is a political force multiplier to which the less-powerful have access. The powerful can always outspend and shout down the less-powerful with regard to speech. They have difficulty matching the less powerful with regard to assembly. And of course, the right of assembly was put in the constitution precisely to keep in place that political force-multiplier for the less powerful.

                Why is that libertarians dislike the right of assembly?

                1. “I would say that if the demonstrators have a record of not disrupting”

                  Sure. Except that they create disruption just by being there. If you occupy a piece of sidewalk, then every other person who wants to use the sidewalk has to go around you. This may not be a big deal. If there are enough of you, however, it starts to get to be,well, disruptive.
                  So, we have to balance the rights of the two groups of people… one group wants to use the sidewalk to walk from one place to another place, and one group that wants to occupy space and gain attention thereby. The sidewalks were designed and implemented for one of these groups. The other can go occupy space and gain attention somewhere else. Guess whose rights come out superior?

                  You’re repeatedly asking “why don’t other people support my right to intentionally get in their way?” and seem honestly puzzled when people tell you why.
                  Ever driven in rush-hour traffic? Do you sit in your car fuming that all these people are out there, not respecting YOUR right to drive where YOU want to, WHEN you want to go there?

                2. “Why is “anticipated” unreasonableness by someone who is not a protestor a reason to burden protest? Why is it the protestors’ responsibility to not be there, so that the venue operator will not have to manage speculative unreasonable responses by imaginary others, if they are there?”

                  Because the plaintiffs conceded it was a nonpublic forum, giving the arena operator the right to make all kinds of rules regarding access.

                  “Why is that libertarians dislike the right of assembly?”

                  It’s not that libertarians dislike the right of assembly, it’s just that libertarians, and pretty much everyone else commenting in this thread, has a much better understanding of that right than you do.

                3. Show me any evidence the judge cites against the demonstrators which is anything but speculation.

                  Evidence of what? As is so often the case, you don’t understand the procedural posture of the decisions you don’t like. This is a facial challenge. The plaintiffs have to prove that the rule is unconstitutional in all its applications, not just in their case. And there’s no “one free bite” rule at play; the arena does not need to wait until there’s actual disruption before enacting rules to avoid disruption.

                  And the plaintiffs agreed that this was a non-public forum; the issue is simply not (as you mistakenly think) whether these particular individuals are going to deliberately cause a disruption, but whether the protest would disrupt the use of the concourse. (Given that you bizarrely think that public schools need not allow any speech because it might be disruptive to their mission, your objection here is rather confusing.)

                  Also, regardless of your quixotic idea that the freedom of assembly is governed by totally different rules than freedom of speech — something which finds no support in law — this was litigated as a speech case, not an assembly case.

            2. The manner of assembly is prescribed. It has to be “peaceable.” The right says nothing about being timely, or conveniently placed.

              The freedom of speech clause of the 1A says nothing about time place and manner restrictions either.

            3. “The manner of assembly is prescribed. It has to be “peaceable.” The right says nothing about being timely, or conveniently placed.”

              I would argue that assembly that is deliberately timed and placed so as to disrupt the ability of bystanders to go about their business is not “peaceable”.

        3. I found the court’s reasoning pretty persuasive, particularly in light of the plaintiffs’ concessions. What specifically do you disagree with in the court’s analysis?

    3. I found the court’s reasoning pretty persuasive, particularly in light of the plaintiffs’ concessions. What specifically do you disagree with in the court’s analysis?

      1. For one thing, they didn’t even suggest repealing Section 230 of the Communications Decency Act.

    4. “why are protesters exercising a constitutional right of peaceable assembly any more responsible for “congestion,” than any other persons in the congested area?”

      Why are people who don’t need to be in a congested area more responsible for congestion than people who do need to be in the congested area? You need this explained for you? Srsly?

      1. James, “people who don’t need to be in a congested area?” Seriously? See if you can figure out how that amounts to prejudice against the right of assembly. Here is a hint. You are saying that some authority has a power to tell would-be assemblers what they do and do not need when they plan to assemble. After you do that, there isn’t much left of the right.

        1. ““people who don’t need to be in a congested area?” Seriously?”

          Yeah. You can literally protest against X anywhere. When you CHOOSE to do it in a way that inconveniences others, those others have a right to consider you an asshole, and treat you accordingly. Including deprecating your right to assemble in favor of the other peoples’ right to assemble.

          “You are saying that some authority has a power to tell would-be assemblers what they do and do not need when they plan to assemble.”

          Duh. Are you at all familiar with property law? If you and your co-assemblers plan to assemble on my lawn, may I (lawfully) turn the sprinklers on?
          If your co-assemblers instead plan on assembling on YOUR lawn, do you have to also allow counter-protesters to do so?

    5. All “free speech zone” cases are a balancing act.

      But obstruction is a big deal, for a couple of reasons. First, the people who are using the facility for the purpose it was designed have rights too. Think about protesters blocking ingress and egress at an abortion clinic, as opposed to protesters who stand to one side with their placards but don’t block the entrance. The former group of protesters are interfering with the doctors, clinic workers, and patients, who all have a right to be there.

      Second, blocking ingress and egress is often a goal of protesters, and it’s not a legitimate goal. The First Amendment protects your right to get your message out. Which is why they need to let you get close to your audience. But it doesn’t protect your right to win. Your audience has to have a chance to reject your message. Obstruction prevents that. It forces people to cave even if they don’t agree with you.

      1. Dilan, I agree with all of that. Except I am having trouble understanding how it ads up to free speech zones, behind chain link fences, under the freeway overpass, a half-mile from the action. I get that that example does not apply to this case, but cases like this one are what lead to that example. I am arguing that there needs to be more legal discrimination on behalf of making the right to assembly work as a political force multiplier for ordinary people. I think that is how it was intended, and is anything but how the law of assembly is now interpreted.

        1. The Constitution doesn’t protect the right to assemble. It protects the right to peacably assemble.

          Rights find their limits when they start interacting with other people’s rights. Your right to use Main Street in a protest against your misunderstanding of Section 230 potentially conflicts with my right to use Main Street to go from Seventh to Pinehaven, so if you’re blocking traffic, the cops may move you out of the street so that people who want to use the street for transportation uses can do so. If your protest is in the town square rather than in the street, your rights are stronger because the town square isn’t intended to be used for something else.

          Most of the conflict arises when people start to believe that their right to do something gives them absolute power to do it, rather than giving them the power to do it within limits set by how their exercise of the power affects other people’s rights. Most of what’s left comes from people not actually understanding what rights they actually have. For example: You have a right to speak freely, you do not have a right to be listened to. More relevant: You have a right to peaceably assemble. You do not have a right to protest the actions of other people by intruding on their right to peaceably assemble.

  4. “Allegation: Connecticut voting law counts prisoners in the district where their prison is located rather than their home district—even though most do not have the right to vote and those who do can vote only in their home district. Which artificially inflates voting power in the white rural areas where prisons are located and deflates representation in the majority-minority urban areas of the state. Second Circuit: This should be heard before a three-judge panel at the district court.”

    Illegals can’t vote either, but their presence is counted in the census and that affects redistricting. Perhaps we should count them as living in their home countries and reduce the population where they are staying?

    1. I would seriously argue for that; Wherever illegal aliens might happen to be residing at any given moment, their only legal residence would be in their home country.

      1. I would seriously argue for that;

        No doubt. We’ve seen your serious arguments.

        1. Bernard, how do you employ italics?
          No urgent need but I am curious.
          Don’t see that option on my device.
          Or Brett.

          1. It’s html. Look up “html italics”. Trying to explain it here could be confusing, so it’s best to see it elsewhere.

          2. What you do is put “(i)” at the start of whatever you want to italicize, and (/i) at the end, except you use angle brackets, “” in place of the parentheses.

            Ankle bracelets won’t work.

      2. In today’s shocking news, we learn that people can legally reside outside their home country.

    2. Well, Pete, there IS a difference. The prisoners live outside their home districts because the government forces them to. The illegals live outside their home (non-) districts in spite of the government’s efforts.

      1. You’re using “efforts” very loosely. The government over the past 50 years, with the support of the turncoats on the left, have basically made the “efforts” illusory.

        1. Even if you accept that argument, it’s still different. The government literally tells the prisoner EXACTLY where he or she has to live. In an extreme case, the government could literally intentionally locate prisons to enhance white voting power and dilute the voting power of minorities.

          The government may very well tolerate undocumented immigrants’ presence in the country, but it doesn’t tell them they have to live in particular legislative districts.

          1. EVERYONE knows that the illegals only live in blue states… that way they can vote!

        2. per usual, you don’t know what you’re talking about.
          The government has been holding as many deportation hearings as they’ve been allowed to. Obama went to Congress to ask for authority to hold more deportation hearings, and the “turncoats on the left” Republicans didn’t even bother to consider the request.

        3. It’s funny that you think Republicans actually want to do anything about illegal immigration.

          1. You can see how important they feel this issue is by the way they rushed to approve an increase in the President’s authority to hold more deportation hearings when President Obama asked for it.

            Republican leaders know full well that the rank-and-file will blame Democrats for immigration problems no matter what they do, and act accordingly.

      2. Why does it matter if they are there voluntarily or not? The issue is representation. If prisoners should vote/be counted in their “home” districts, then so should illegals.

        1. Presumably, it matters to you if you get taken somewhere voluntarily? You might want to vote “no” on that question, and actually have your vote counted.

  5. “Colorado police arrest two men for handing out information on jury nullification outside a Denver courthouse. A First Amendment violation?”

    Under the theories in these jury nullification advocate cases, people telling jurors to follow the judge’s instructions would be equally guilty of jury tampering. But for some reason I never see people charged with that.

  6. I’m not sure how the Second Circuit decision squares with the Supreme Court’s reasoning in Evenwel v. Abbott.

    1. Evenwel was about whether the state could use total population (so all people even if not eligible voters like children, non-citizens, felons where applicable). But the districts were still drawn such that the total population per district were close enough to meet the standards needed for constitutional purposes.

      Here the question is whether the felons should be counted as part of their home district or the district they are currently being held in. They really aren’t the same questions. This case, importantly, is not quibbling with the total population being used instead of eligible voters. It is simply questioning where these individuals should be counted.

      1. Evenwel was about whether states could design legislative districts based on population rather than eligible voters.

        The argument the plaintiffs make in NAACP v. Merrill is the same argument that the plaintiffs in Evenwel made: redistributing districts based on population (rather than eligible voters) inflates the power of areas with low levels of eligible voters and deflates the power of areas with high eligible voters.

        The court (IMO wrongly) rejected this argument.

        1. That isn’t their argument though. The problem isn’t using total population. It is WHERE these people are being counted; not who should be counted. They are saying the prisoners should be counted in their home district, not the prison district; they aren’t saying they shouldn’t be counted at all.

  7. Frigging Downers Grove, IL the Town the Constitution never reached. They tried to ban gun possession in the home back in the 20th Century.

  8. “The University of Michigan has established a “Bias Response Team” that responds to student-reported “bias incidents.” Although it lacks any power to impose punishments, it can make referrals to police or the university. Does that unconstitutionally chill speech? A free speech advocacy group whose members attend the school has associational standing to find out, says two-thirds of a Sixth Circuit panel.”

    So… this is a free speech advocacy group that advocates against people speaking freely? (It seems the bias watchdog group’s only power is to… speak to people).

  9. “So… this is a free speech advocacy group that advocates against people speaking freely?”

    It’s a free speech advocacy group that claims, rightly, that state officials engaging in government speech under certain circumstances can have a chilling effect on free speech.

    1. By… speaking?

      Here’s the deal… you can respond to events of reported bias on campus, and you can speak to individuals involved, and you can then refer your findings to the police and/or to the university. Are you ALSO chilling free speech?

      1. This answer is not very satisfactory – you’re ignoring the difference between state actors and private actors. If the Bias Response Team is a state actor and its intent (or obvious main effect) is chilling protected speech, then there’s a problem. Likewise if the “speech” by the state actor is intended to trigger action and likely to do so.

        1. ” If the Bias Response Team is a state actor and its intent (or obvious main effect) is chilling protected speech,”

          Can you chill protected speech by engaging in protected speech? You skipped over that question.

          Placing an investigatory body between the students and the police would seem to INCREASE likelihood that “bias incidents” will be reported. Removing such a body would seem to “chill” such reports. Why would you want that? I mean, unless THAT was what you were specifically hoping to achieve…

  10. I’m going to make a policy argument about the gun cleaning case. I don’t know whether state or local law permitted that man to be involuntarily committed. So he may have a case.

    But it is very much an example of the sort of thing I mean when I talk about regulation of the militia. I don’t think regulation of the militia includes all forms of gun control. I also think that some forms of gun control, even if styled as regulation of the militia, could be unconstitutional because they are not sufficiently related to achieving their goals (I think you can make that argument about assault weapons bans that don’t focus enough on the dangerousness of the weapon and focus too much on cosmetic features of guns, for instance.)

    But if you’re cleaning your gun when you are drunk, I’m sorry, you should face discipline. That should be the law. The right to keep and bear arms presupposes responsible gun ownership to ensure an effective fighting force to defend the free state. That’s exactly what the Second Amendment says. And a person who acts irresponsibly with respect to the care of his armament is thwarting that.

    I don’t know if that necessarily means civil commitment, but it could certainly call for, at the very least, some mandatory gun safety classes and some sort of probation, a limitation on arms purchases until such classes and probation are concluded, and for a repeat offender, disarmament and prison time. And all of these things are perfectly consonant with the Second Amendment.

    The problem with American gun culture isn’t that we have a lot of people who want to own guns. It’s that we have a lot of people who want to own guns while feeling they owe absolutely no obligation to the broader society with respect to their gun ownership. This has to change. Regulate the militia.

    1. What does civil commitment have to do with discipline, Dilan? You’re arguing a different case — that the gun owner could be prosecuted.

      1. Here is the fundamental question:
        Should everyone who wants to own/possess a firearm be permitted” to do so?
        If the answer is “no”, what limits on ownership/possession is appropriate? What kind of obligations should fall on other people who own/possess firearms?

        I’ve run into very few people who answer “yes” to the first question. But the follow on questions have wildly different ranges of response.

        * for this discussion “permitted” does not just mean “what the laws should say”. If someone should not have a gun (for whatever reason) what obligations does that place on other people. Does this imply that I shouldn’t sell that guy a weapon? Does it imply that I shouldn’t loan that guy a weapon? Does it imply that I should take steps to prevent him from gaining access to my weapons, even if that places limits on my own access? Does it imply that if I see that he already has a weapon, I should try to dispossess him? Do I have an obligation to inform law enforcement that he has a weapon, or is trying to obtain one?

  11. If you’re going to link gun control to being a member of the militia, then the types of firearms that fall under the rubric of “assault weapons” should be the last type to be banned. Center fire, magazine-fed, semi-auto weapons are durable, light weight, reliable, and inherently accurate. All of the things you would want/insist your average member of the militia possess.

    1. Well, certain weapons may be inappropriate for civilian use and dangerous enough they need to be stored in armories rather than homes.

      1. Even if you restrict the 2A to the militia, keeping arms “shall not be infringed.”

        1. The right to keep and bear arms does not necessarily imply a right to bear all arms of the bearer’s choice.

          If everybody has the right to keep a .22 single-shot rifle, but nobody has a right to keep an AK-47, then everybody has a right to keep and bear arms.

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