The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Citizenship

Denaturalizing Natural-Born Citizens

Why Hoda Muthana Can't Be Kept Out of the United States

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Hoda Muthana was born in 1994 in Hackensack, New Jersey. The United States issued her a passport in 2005, which it later renewed. At the time of the first issuance, the government raised some questions as to the previous diplomat status of her Yemeni father, which were resolved to the government's seeming satisfaction.

In the aftermath of Muthana joining ISIS in Syria in 2014, the position of the U.S. government is not only that Muthana is not only that she is not a U.S. citizen, but that she was never one. Secretary of State Mike Pompeo has stated on the record that she is not a citizen and has no right to enter the United States, which President Trump tweeted conforms to his instructions to Pompeo not to allow her in. As a result, she and her young son are stuck in a Syrian refugee camp even though she is willing to face legal consequences in the United States for her role in ISIS. More details about the timeline can be found here. Her father has filed a complaint on her behalf, which is here.

My coauthor Cassandra Robertson and I have expressed concerns about denaturalizations and denationalizations in the United States for some time. In an article that is forthcoming in the New York University Law Review, we pointed out that the Trump administration's attempts to take away citizenship are unlikely to stop with naturalized citizens. Hoda Muthana's case further confirms our fears.

Steve Vladeck explains some of the legal issues involved in her case here. Jonathan Shaub adds his own analysis, including a discussion of the differences between the U.S. and the U.K. approaches–and how Muthana's case might be different from that of British citizen and alleged ISIS member Shamima Begumhere.

One issue worth highlighting beyond these informative posts is that of equitable estoppel. Hoda Muthana's father's complaint argues that if there had been lingering problems with the father's diplomat status when Hoda Muthana was born, the government had an obligation to say so at the time. Had it done that, the family would have applied for permanent residence for Muthana (as opposed to birthright citizenship) the same way it had done for her older siblings. The complaint states:

The United States definitively represented to Plaintiff that Ms. Muthana was a United States citizen when it issued her a passport.

Plaintiff and his daughter relied on the representation by the United States that his daughter was a United States citizen, and as a result did not take further action to procure or clarify her status in the United States.

Reliance on the issuance of a United States passport, issued by the United States government, was reasonable on the part of Plaintiff and Ms. Muthana.

It would be difficult to deny that these facts meet the three prongs for equitable estoppel (which are definite representation, reliance, and reasonableness of reliance). The Trump administration's run-ins with principles of estoppel in this area are not limited to alleged terrorists. The government has recently sought to denationalize (at times middle-aged) U.S. citizens born near the border to Mexico by claiming that they lied about which side of the border they were born. In one case, a woman born in a farmhouse in the 1970s as far away from the border as Kansas was recently denied a passport because her birth certificate was not deemed sufficient documentation of her citizenship.

The courts need to draw a line as to how long the government has to question the validity of a birth certificate or passport. Birthright citizenship does not cease to exist because someone committed a crime or became inconvenient to the state for any other reason. And if the government wishes to remove citizenship on rare grounds such as treason, it can only do so with the due process of law–rather than fiat by tweet.

Second Amendment Rights of Young People

Nineteenth Century Law and Twenty-first Century Cases

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Do persons under 21 have any Second Amendment rights? Around the nation, gun control activists have been pushing for laws to prohibit firearms for persons under 21. In a symposium issue of the Southern Illinois University Law Journal, Joseph Greenlee and I examine the issue. History and Tradition in Modern Circuit Cases on the Second Amendment Rights of Young People concentrates on two topics: First, the five leading post-Heller federal circuit cases that have addressed age-based restrictions or bans on the exercise of Second Amendment rights. Second, statutes and case law from the nineteenth and early twentieth century on the issue. We pay particular attention to how the modern cases employed legal history.

A separate and much longer article, The Second Amendment Rights of Young Adults, will appear in the next issue of the SIU Law Journal (but you can read a near-final draft via the link). That article examines the colonial and Founding periods, twentieth century laws, and modern policy questions. I will write more about that article when it is published.

Rene E. (1st Cir.)

The first post-Heller case to examine an age limit for the Second Amendment was the First Circuit's United States v. Rene E., which upheld 18 U.S.C. 922(x)(2). The statute prohibits handgun possession by persons under 18, with certain exceptions, including self-defense in the home, hunting, farm and ranch work, and target shooting (if the person at the target range carries a permission note from her parents).

The Rene E. court cited a litany of historical cases, but on closer examination, not all of these cites really supported the federal ban. For example, McMillen v. Steele, 119 A. 721 (Pa. 1923) upheld an 1881 statute that banned handgun sales to persons under 16, but did not ban possession. State v. Quail, 92 A. 859 (Del. Super. Ct. 1914) involved a statute against concealed carry; a separate section of the statute banned deadly weapons sales to minors, but that part of the statute was not at issue in the case. Several other cases in the Rene E. list were decided on procedural or other grounds, and did not address constitutional questions. Tennessee's State v. Calicutt, 69 Tenn. 714 (1878), was on-point, but was expressly based on the Tennessee Court's 1840 Aymette v. State. In Heller, the U.S. Supreme Court expressly stated that Aymette's reading of the Second Amendment was "odd" and incorrect; so Aymette and its progeny are not much use as modern precedent.

The best historical precedent cited by the First Circuit was Georgia's Glenn v. State, 72 S.E. 927 (Ga. Ct. App. 1911). It upheld a 1910 statute against furnishing handguns to minors, except for self-defense. According to Glenn, the state may "prohibit, on the part of minors, the exercise of any right, constitutional or otherwise, although in the case of adults it might only have the right to regulate and restrict such rights." The assertion that minors have no constitutional rights is plainly wrong under modern precedent, and it was plainly wrong under the law of the time. (Otherwise, minors could be prosecuted for heresy, executed without due process, etc.)

The most detailed treatment of minors was Parman v. Lemmon, 244 P. 227 (Kan. 1925). It involved the interpretation of a statute that banned furnishing "any pistol, revolver," toy cap pistol, "dirk, bowie knife, brass knuckles, sling shot, or other dangerous weapons" to minors. Did "other dangerous weapons" include long guns? The Kansas Court ruled 3-2 that it did, since long guns can be dangerous. The Court then granted rehearing, reversed itself, and made the dissents into the controlling opinion. 244 P. 232 (Kan. 1926).The newly-controlling (former) dissent found it extremely implausible that the 1881 legislature would have sub silento banned common activities such as teenagers using shotguns on the family farm. In Kansas and American history, "the rifle over the fireplace and the shotgun behind the door were imperatively necessary utensils of every rural American household. And it was just as imperative that the members of such household, old and young, should know how to handle them." A ban on long guns for minors "offends against the genius of Kansas and her hitherto free institutions, contemns her heroic history, and disdains the epics of her pioneers."

The Parman court did seem accepting of handgun bans for minors, making it nearly the best historical precedent for the federal handgun statute at issue in Rene E.

NRA v. BATFE (5th Cir.)

Another part of the federal Gun Control Act forbids persons under 21 from buying handguns in retail stores, but does not prohibit them from acquiring handguns from other sources. The Fifth Circuit addressed the ban in NRA v. BATFE, 700 F.3d 185 (5th Cir. 2012). The court correctly pointed out that gun controls existed at the time of the Founding, and that the Founders were concerned about keeping arms away from people who were not "virtuous" citizens. Without a scintilla of evidence, the Fifth Circuit speculated that the Founders considered persons under 21 to be unvirtuous, and so such persons have no Second Amendment rights. Since the standard starting age for militia service in the colonial and Founding periods was 16 or 18, the Fifth Circuit's notion that the Founders distrusted young people with arms is implausible and absurd.

The stronger part of the Fifth Circuit opinion was a list of 19th century statutes involving arms restrictions on minors. These start with an 1856 Alabama law against giving handguns or bowie knives to male minors, and Tennessee law of the same year against giving such arms to minors or slaves (with an exception for hunting). The rest of the laws date from 1873 or later.

As of 1899, there were forty-six states in the Union. Nineteen of them had some sort of law involving handguns and minors and the other twenty-seven had no such laws. No state criminalized handgun possession by minors. Ten states generally prohibited handgun transfers to minors; four of those ten had exceptions for self-defense, hunting, or home possession, and Alabama's law was only for males. Of these ten statutes, five expressly prohibited loans, while the other five were phrased in terms that could be construed to refer only to permanent dispositions.

Three other states did not restrict transfers in general, but did restrict sales (Delaware, Mississippi) or dealer sales (Wisconsin). Five states required parental consent for handgun transfers to minors (Illinois, Iowa, Kentucky, Missouri, Texas). Nevada simply prohibited concealed carry.

In short, the historical statues strongly indicate that long gun bans for persons under 21 are unconstitutional. There is minority support for handgun restrictions. Support for extra regulation on handgun acquisition is much stronger than support for prohibition.

In an abundance of caution, the Fifth Circuit also upheld the statute under intermediate scrutiny. The court accurately pointed out that 18-to-20-year-olds have higher violent crime rates than do older people. The rationale can be used to justify almost any age ban: Persons 21-to-25 commit crimes at a higher rate than do people over 25. Persons 60-to-65 commit crimes at a higher rate than do persons over 65. By the Fifth Circuit's rationale, the minimum age for gun ownership could be set at 100, since persons under 100 commit crimes at a much higher rate than persons over 100.

A similar prohibitory rationale could be applied to many groups that perpetrate crimes disproportionately. For instance, African Americans commit murders at disproportionately high rates, but that cannot justify bans on all African Americans. Regardless of age or race, males commit far more murders and other gun crimes than females. The fact cannot justify an arms ban for all males.

NRA v. McCraw (5th Cir.)

Another case in the Fifth Circuit, National Rifle Association v. McCraw, challenged the Texas concealed handgun carry licensing statute, which does not allow young adults aged 18-20 to obtain permits. (An statutory exception was later added for young adults with past or present service in the armed forces.) The McCraw court mostly relied on the NRA v. BATFE precedent, and improperly so. The BATFE case involved a restriction on one means of acquiring handguns, and was tested under intermediate scrutiny. The McCraw case, in contrast, involved a near-total prohibition on the exercise of the right to bear arms; accordingly the statute should have been subject to more rigorous review.

The McCraw court applied a special, feeble version of intermediate scrutiny, which has become a specialty for the Fifth Circuit, and some other courts, in Second Amendment cases. In normal intermediate scrutiny, the government carries the burden of proving that there is no "substantially less burdensome alternative." Under the more rigorous rules of strict scrutiny, the government must prove that there is no "less restrictive alternative." In McCraw, the plaintiffs argued that young adults could be issued permits under a stricter system–for example, additional training or background checks could be required. The Fifth Circuit refused to consider the argument, and incorrectly stated that intermediate scrutiny requires no consideration of alternative regulations.

Horsley v. Trame (7th Cir.)

In Illinois, gun owners must have a Firearm Owner's Identification Card (FOID). Persons 18-20 who apply for a FOID card must have a signed authorization for a parent or guardian. If the signature is not obtainable, there is a safety valve provision for the applicant to seek relief from a state official, and an option for judicial review of an administrative denial. In abortion jurisprudence, parental permission laws have been upheld if they have a safety valve for alternative means of obtaining permission. By analogy, the Illinois system for gun licenses was upheld in Horsley v. Trame, 808 F.3d 1126 (7th Cir. 2015).

Ezell II (7th Cir.)

After the City of Chicago's ban on gun ranges open to the public was ruled unconstitutional, the Chicago City Council enacted a new ordinance. That ordinance prohibited any person under 18 from entering a target range. The ban was held unconstitutional in Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017) (Ezell II). The City pointed to some of the historical restrictions on minors discussed above. But as the Seventh Circuit observed, "There's zero historical evidence that firearm training for this age group is categorically unprotected. At least the City hasn't identified any, and we've found none ourselves." Indeed, the Supreme Court in Heller had quoted a 19th century treatise that "a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right." Benjamin Vaughan Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880).

In sum, the legal tradition of the nineteenth and early twentieth centuries, as well as post-Heller federal circuit cases provide two approaches to the right to arms of persons under 21. Under the 1911 approach of the Georgia Court of Appeals, and of the modern Fifth Circuit, persons under 21 have no rights that the government is bound to respect. Under the approach of the Seventh Circuit, people under 21 may sometimes be subject to extra regulation, but not to prohibition. A ban on long guns for persons 18-20 is bereft of any support in history and tradition.

Supreme Court

Justice Department Asks Court to Narrow Auer Deference

In a just-filed brief, the Trump Administration asks Supreme Court to reduce the degree of deference government agencies receive.

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Auer deference (also known as Seminole Rock deference) is one of the more controversial doctrines in adminsitrative law. This doctrine provides that where a federal regulation is ambiguous, the promulgating agency's interpretation of that regulation shoud receive "controlling weight." As articulated by Justice Scalia in Auer v. Robbins, this holds without regard for how or when the agenc articulated its interpretation, provided the reviewing court may be assured that the interpretation offered reflects the agency's official position.

Auer deference may sound like an unobjectionable way to resolve regulatory ambiguity. In practice, however, Auer deference enables agencies to evade a range of administrative law norms designed to ensure notice and accontability, and facilitates agency aggrandizement of their own authority. I review some of the problems with Auer in this brief symposium article, "Auer Evasions."

In recent years, several justices have expressed their discomfort with Auer, including Justice Scalia, who expressed regrets about the decision before his death. Next month, the Supreme Court will hear oral argument in Kisor v. Wilkie, in which the Court will expressly consider whether to overturn Auer. As you might expect, I think it should, for reasons explained in the above-cited article, this SCOTUSBlog essay, and my amicus brief with Michael McConnell, Richard Epstein, the Cato Institute, and Cause of Action.

Yesterday, the Solicitor General filed its brief in the case, defending the federal agency decision at issue in Kisor (the rejection of a veterans' disability benefit claim by the Department of Veterans' Affairs). While the brief defends the VA, it takes the surprising (yet very welcome) steps of acknowledging many of Auer's deficiencies and calling on the Court to narrow Auer deference. The primary reason the brief gives for not overturning Auer completely is stare decisis.

Here is an excerpt from the government's brief's argument summary:

The doctrine of judicial deference to agency interpretations of ambiguous regulations announced in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and applied in Auer v. Robbins, 519 U.S. 452 (1997), should be clarified and narrowed.

A. The doctrine raises significant concerns. First, its basis is unclear. It is not well grounded historically; this Court has not articulated a consistent rationale for it; and it is more difficult to justify on the basis of implicit congressional intent than Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Second, Seminole Rock deference is in tension with the APA's distinction between legislative and interpretive rules. Interpretive rules, unlike legislative rules, do not carry the force and effect of law and are exempt from notice-and-comment procedures. When a reviewing court gives controlling weight to an interpretive rule under Seminole Rock, it arguably treats the interpretive rule as though it were a legislative rule. Seminole Rock deference can also cause practical hardship to regulated parties.

B. In light of these substantial concerns, the Court should impose and reinforce significant limits on Seminole Rock deference. Seminole Rock deference is inappropriate if, after applying all the traditional tools of construction, a reviewing court determines that the agency's interpretation is unreasonable—i.e., not within the range of reasonable readings left open by a genuine ambiguity in the regulation. A more searching application of that inquiry would obviate any occasion for Seminole Rock deference in many cases. And even when that rigorous predicate is met, a reviewing court should defer to the agency's interpretation only if the interpretation was issued with fair notice to regulated parties; is not inconsistent with the agency's prior views; rests on the agency's expertise; and represents the agency's considered view, as distinct from the views of mere field officials or other low-level employees.

As readers might suspect, I think Auer's problems justify its complete reversal, but it is nonetheless welcome to see the federal government acknowledge these problems and show a willingness to narrow a doctrine the inevitably works to the advantage of the government.

For more on Kisor, see this SCOTUSBlog symposium. For more on Auer and Seminole Rock, see this Notice & Comment blog symposium.

Religious liberty

Is There Religious Freedom in the Muslim World?

Let's look at real Muslim countries.

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Is Islam hospitable to religious freedom? This is the central question of my newly published book, Religious Freedom In Islam: The Fate of a Universal Human Right in the Muslim World Today. To answer the question, the book looks closely at the Muslim world today.

I focus on how governments treat the question of religious freedom in countries where Muslims are a majority. There are about 47 of these countries, and they are concentrated in the Middle East, North Africa, West Africa, and Southeast Asia. Muslim-majority states serve as a strong test for religious freedom: How are dissenters and religious minorities treated in states where Muslims are the majority of the population and have the means of coercion at their disposal? If regimes in these states allow religious freedom, then the case for the Muslim world's openness to religious freedom is strengthened.

For measurements of religious freedom, I look to the Government Restrictions Index of the widely respected religious freedom rankings of the Pew Research Center. It was in part through Pew numbers that I derived the first part of my argument about the Muslim world—that, in the aggregate, Muslim-majority countries are much less religiously free than the rest of the world.

The second part of my argument is that when one zooms in from a satellite view of the Muslim world to a close-up view, one sees more diversity—a diversity that offers hope for religious freedom in the Muslim world. Pew's numbers are also important for this second argument but do not alone deliver it. To see the diversity in the Muslim world, one must look not only at the magnitude but also at the manner in which governments restrict religious freedom. By manner, I have in mind what we may call a regime's political theology, that is, a doctrine of political authority, justice, and the proper relationship between religion and state that is derived from more foundational theological and philosophical commitments.

I propose three categories of regimes as they are defined by their political theology. The first is "religiously free" states, which make up 11 out of 47 Muslim-majority states. These fit Pew's category of "low" restrictions on religious freedom on the GRI and are categorized by a political theology of religious freedom, meaning that they espouse, promote, and protect the freedom of people and communities to practice their religion.

Seven of these countries are concentrated in West Africa. Most of them have strong Muslim majorities—in some cases, more than 90% of the population—yet they are striking for their strong levels of respect for Christian and other minorities and for Muslims who dissent from prevailing orthodoxy. Notably, levels of religiosity are high in these countries; sub-Saharan Africa is the most religious region of the entire world, according to the Pew Research Center.

Thus refuted is a widely shared wisdom in the West that says that only secularization—meaning the decline of religious belief—can bring religious tolerance. In West Africa, it is not the absence of Islam but rather the kind of Islam, that explains tolerance—namely, an Islam informed by Sufi spirituality, which stresses inner sincerity and the free character of belief. West Africa's tolerance can also be explained by the historical pattern of Islam's arrival in the region. Unlike in the Middle East, where Islam spread through conquest, here it came through bands of traders and missionaries who had to make accommodations with the surrounding authorities. The pattern continues through this day.

The 36 Muslim-majority states that are not religiously free fit Pew's categories of "moderate," "high," or "very high" levels of restriction on the GRI. These states manifest different political theologies, though, and so can be divided into two categories.

One of these—the second of my three categories—can be called "secular repressive" states. Numbering 15 in 2009, these states proffer a political theology of secularism, rooted in the West, holding that the public influence of Islam ought to be stifled so as to make way for nationalism, economic modernization, and modernity in general. The standard bearer of this model is the Republic of Turkey, founded in 1923 by Kemal Atatürk on secular principles. Egypt followed suit under Nasser in the early 1950's, as did other Arab countries. The Central Asia republics—the "stans"—emerged as secular repressive following the end of the Cold War. What these countries show is that where religious freedom is lacking in the Muslim world, Islam is not always the cause of it. The French Revolution, not just the Iranian Revolution, is the problem.

The other kind of Muslim-majority state that curtails religious freedom—my third category—I call a "religiously repressive" state. These states numbered 21 in 2009 and manifested a political theology of "Islamism" that envisions law and government policy as a vehicle for promoting a strongly conservative form of Islam in all spheres of life—family life, economy, culture, religious practice, education, dress, and many others. These are the countries that most Westerners have in mind when they think of Islam as being repressive. Here, the Iranian revolution has prevailed. Iran and Saudi Arabia are indeed the prototypes.

These three categories, each based on a political theology, are at the heart of my argument about Islam and religious freedom. They show, first, that religiously free states do exist in the majority-Muslim world. They make up almost one-fourth (23%) of that world and so are more than outliers. Then, the religiously unfree portion of the majority-Muslim world must be understood in its complexity, too. About 32% of Muslim-majority states are secular repressive ones, fueled by an antireligious ideology borrowed from the West. The other 45% are religiously repressive, imposing traditional Islam.

This close-up view ought to yield both honesty and hope. It is honest in that it allows that religious repression is still widespread in the Muslim world. It is hopeful in that it shows that Islam is not always the source of the repression and is indeed sometimes the source of freedom.

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