Today in Supreme Court History: November 4, 1992

11/4/1992: Church of the Lukumi Babalu Aye v. City of Hialeah argued.

City of Hialeah, FL

 

Comments

[Dan Schiavetta]

District of Columbia v. Eslin, 183 U.S. 62 (decided November 4, 1901): judgment by contractor against the District of Columbia’s Board of Public Works is uncollectable because filed in court which no longer had jurisdiction, even though judgment and notice of appeal were filed before statute eliminating jurisdiction was enacted (repeal statute had explicitly vacated all existing proceedings) (sounds like a Due Process violation to me)

Stanton v. Sims, 571 U.S. 3 (decided November 4, 2013): police officer enjoyed qualified immunity from §1983 suit brought by woman whose front gate was kicked down while he was in warrantless “hot pursuit” of suspect (this kind of thing actually happened to a friend of mine, in the early 1990’s; my research skills, rudimentary at that point, led me to believe that her case fell within a “de minimus” exception, even though to her that ruined front door was pretty expensive)

INS v. Orlando Ventura, 537 U.S. 12 (decided November 4, 2002): Circuit Court can’t decide fact issues de novo (here, as to Government’s “changed conditions” argument that Guatemala was now safer and political asylum no longer merited); should have remanded back to Board of Immigration Appeals

[Biastians]

https://www.msn.com/en-us/news/politics/federal-appeals-court-upholds-illinois-semiautomatic-weapons-ban/ar-AA1jmenJ?ocid=msedgntp&cvid=5250e240a54e46fab6ae716deab336ff&ei=5

“There is a long tradition, unchanged from the time when the Second Amendment was added to the Constitution, supporting a distinction between weapons and accessories designed for military or law-enforcement use and weapons designed for personal use,” Judge Diane Wood said in the opinion. “The legislation now before us respects and relies on that distinction.”

No, there isn’t. This female Clinton appointee literally just made that up.

“Most of the AR-15s now in use were manufactured in the past two decades,” Wood wrote. “Thus, if we looked to numbers alone, the federal ban would have been constitutional before 2004 but unconstitutional thereafter.”

Her pointing out that the "common use" test is unworkable is the only legitimate part of her decision.

[Dan Schiavetta]

Why doesn’t the Second Amendment cover weapons used for military or police use then? You must admit that it doesn’t. You don’t have a Second Amendment right to own a Howitzer, or a ballistic missile.

[Michael P]

What specific precedent do you cite for your propositions? Around the Founding, private citizens could own the heaviest weapons of the day.

[Dan Schiavetta]

Your argument is that owning nuclear weapons is not a violation of the Second Amendment. Am I right about that?

[Biastians]

Not this stupidity again. For one, the second amendment covers small, bearable arms, not ordnance. It covers the type of arms that individual soldiers would be issued. The founding documents make this very clear.

Second, equating nuclear weapons with semi-automatic centerfire rifles is the height of liberal idiocy.

[Longtobefree]

And the not so small.
The M252 mortar is carried and served by a crew of only 5 men. Just the sort of thing a militia company would find useful.

[Alpheus W Drinkwater]

Which founding documents do you think "make this very clear?"

[Alpheus W Drinkwater]

Never mind, I muted you because of your racist, misogynist comments below.

[Nameless But Highly Opinionated]

I don't mute people, and I'd love to hear what those founding documents are. I hope he tells.

[Michael P]

No new goalposts. You asserted that we “must admit that” the Second Amendment doesn’t “cover weapons used for military or police use”. My argument is that there is no precedent supporting your claim that we must admit that.

Even the most ardent misreader of the Militia Prefatory Clause would have to admit that a militia would be useless if it couldn't have and use "weapons used for military or police use".

[Michael P]

After posting that comment, I saw coverage of an appeals court providing support for captcrisis's position: https://www.reuters.com/legal/us-appeals-court-upholds-illinois-assault-weapons-ban-2023-11-04/

I don't expect that decision will be long for this world, though, because it is in such strong tension with its own precedent. Declaring that AR-15s can be banned essentially because machine guns use the same ammunition is nonsense on stilts. One of the two judges in the majority (Easterbrook) previously wrote the decision overturned by SCOTUS in McDonald v. Chicago, as well as one in Friedman v. City of Highland Park upholding a law similar to the one struck down in Bruen, so he's no stranger to bad 2A decisions.

[Biastians]

Michael, those decisions are all made in bad faith. None of the judges legitimately think that they're following the dictates of Heller or Bruen. They just know that the current SCOTUS is too squishy to issue summary reversals or to stay the laws while the cases are "percolating," so the evil leftist judges get what they want for several years.

[Longtobefree]

The purpose of the second amendment was to assure the militia (aka most able-bodied men) could assemble with arms capable of repelling an invading army, those ‘arms’ did include cannon and warships; at the time, the most powerful weapons available. So the amendment covers semi-automatic rifles and pistols.

[Dan Schiavetta]

So you it covers cannon and warships?

[Armchair]

Yes.

To give an example, the USS Iowa is a WWII Battleship, which is currently owned by a private non-profit organization. An example of private ownership of a literal warship.

[Armchair]

And of course, there's the historic example of when Pepsi purchased 17 submarines, a cruiser, a frigate, and a destroyer from the old Soviet Union, briefly having the 6th largest navy in the world.

[Drewski]

You've established that Congress can grant a right to possess a warship by statute, but that says nothing about the Second Amendment.

[Sam Bankman-Fried]

The 2A concerns the unorganized militia like the Black Panthers and KKK…KKK can have cannons, but the Black Panthers should be disarmed.

[Jerry B.]

Not to mention that a lot of the artillery used in the Revolutionary War was privately owned, especially in uses like privateering.

[JasonT20]

Not to mention that a lot of the artillery used in the Revolutionary War was privately owned, especially in uses like privateering.

Right. So that means we can own artillery, grenades, .50cal machine guns, RPGs, Stinger missiles...

[Jerry B.]

You can own artillery and .50 cal machine guns. Plenty of folks participate in artillery shoots during re-enactments.

Then again, in a discussion of semi-automatic rifles, asking if we can own Stinger missiles is sorta off topic.

[JasonT20]

Why doesn’t the Second Amendment cover weapons used for military or police use then? You must admit that it doesn’t. You don’t have a Second Amendment right to own a Howitzer, or a ballistic missile.

You don't even need to take it that far. The 2nd Amendment apparently allows restrictions on fully automatic weapons that fire the same ammunition as semi-automatics that are legal. At least, I haven't seen SCOTUS suggest otherwise. (Yet)

[Biastians]

What's your basis for saying it "apparently allows" those restrictions?

[JasonT20]

What did Heller have to say about them? Have any gun rights supporters been working to lift the restrictions that exist in federal law?

[Biastians]

Heller didn't say anything. But the 2nd Amendment was clearly intended to protect weapons used by the militia, and "every terrible implement of the soldier." There's no legitimate argument that full autos can be banned.

[Nameless But Highly Opinionated]

From Congress.

[Biastians]

?

[Kazinski]

Well because the 2nd amendment has been interpreted to protect an individual right to bearable arms. So anything an individual could reasonably carry that isn't "dangerous and unusual" would be kosher.

[Kazinski]

AR15 production in the decade before the 1994 assault weapons ban was about 100k per year (NIJ "Impacts of 1984 Assault Weapons Ban")

In contrast production of the Gord full sized Bronco during the same period, fluctuated between a half to about one third of that.

Like the AR15 that era's Bronco might have been classed as dangerous, but not "dangerous and unusual".

[mydisplayname]

An opposing facet of the issue is in the news again today: even the Washington post is now parsing the difference between a case-fire and a humanitarian pause in hostilities (which is as useful as differentiating an LGM-118 Peacekeeper from an MX Missile). See https://www.washingtonpost.com/world/2023/11/04/israel-war-hamas-gaza-live-news-palestine/#link-MLCTT3NMHFEWHJT2T6IMDVKFPA

[Jerry B.]

In this instance, I suspect that, to Hamas, “humanitarian pause” means “time to resupply and regroup”.

[Estragon]

I guess I haven’t been following along that closely with these serial posts… but is it typical for Josh to link to the opinion itself? Because this goes to a website wanting money. Somewhat tacky?

Anyways, Here is a link to the actual decision:

https://supreme.justia.com/cases/federal/us/508/520/#tab-opinion-1959281

[Kazinski]

It links to the textbook and associated materials website, do you want them to give away the textbook for free? The intended audience is law school students paying upwards of 40k A year in tuition. Its hardly geared to struggling inner city school children that might expect to need access to free supplemental material.

There is a free 1+ min video with an excerpt of an interview with the plaintiffs attorney.

What more do you want?

[Estragon]

I want a link to the opinion.

If this is typical, then I didn’t realize. On the other hand— there are 365 days in a year and only “100 Supreme Court cases you should know” … so presumably some days there are links to opinions that don’t cost money? As I said, I haven’t clicked on any of the links before today. Feel free to give Josh Blackman as much of your money as you desire.

[Kazinski]

Well he wastes a lot of the posts on justices birthdays. Or the date they were appointed, and other crap.

[The Margrave of Azilia]

If Schechter Poultry was the sick chicken case, Church of the Lukumi Babalu Aye v. City of Hialeah was the case of the chickens with their heads cut off.

Hialeah crafted an ordinance so phrased that it permitted animal slaughter food purposes but not ritual slaughter by the Santerians.

I don't practice Santeria, but my crystal ball tells me that this case provides leverage, for a court so inclined, to find that more and more laws are discriminatory against religion like in the Santeria case, and not "neutral" laws like in the Native American Church peyote case.

[ReaderY]

You’d think that with religious schisms so common these days, some group of dissenters from the Church of the Lukumi Babalu Aye would have split off and formed a new church, the Church of the Lukumi Babalu Bee.

[Dan Schiavetta]

Diplomacy is nothing if not nuance. I'm glad Biden and his people are in charge. They understand nuance. As did the Obama crew.

Can you imagine if Trump was in charge? Along with the unquestioning, unqualified sycophants he will bring along with him if he gets in again?

[Michael P]

Yes. If Trump had been in charge, Hamas would have never dared to attack like it did. Terrorists see the weakness of the Biden administration and respond to it.

[David Nieporent]

Was it Trump's kowtowing to dictators that made you think other people thought he was strong, or was it his surrendering to the Taliban?

[Dan Schiavetta]

Trump recently said he admires Hamas. Didn’t you notice?

[Biastians]

Not an incel. Just someone who recognizes the truth about women and their temperaments.

[Biastians]

There is something admirable about people who are willing to die for their cause, regardless of what that cause is.

Unlike for example, American blacks, who whine and bitch but aren't willing to walk the walk.

[not guilty]

The qualified immunity doctrine regarding federal civil rights violations, created from whole cloth by the judiciary, is an abomination. Congress should abolish it. (But I'm not holding my breath.)

[Rev. Arthur L. Kirkland]

Profs. Volokh and Bernstein thank you for your bigoted comments -- it frees them to address other partisan points.

[Kazinski]

"Unlike for example, American blacks, who whine and bitch but aren’t willing to walk the walk."

Because they are following your example.

[JasonT20]

There is something admirable about people who are willing to die for their cause, regardless of what that cause is.

That their goal is to take innocent people with them more than negates anything to admire about that willingness to die for their cause.

[David Nieporent]

Being willing to die is not remotely admirable. Any cult can brainwash people into being willing to die.

[Rev. Arthur L. Kirkland]

Bingo! That misogynistic comment made me a winner at Volokh Conspiracy Bigot Bingo today!

[Dan Schiavetta]

"Danger invites rescue."

[Ak Mike]

This sort of violation (kicking in a door) isn't really a civil rights violation, it's a common law tort. The states have each decided that cops and other public employees should be immune from tort claims for intentional torts. Take it up with your state legislature.

[Nameless But Highly Opinionated]

Everything about s1983 is supposed to be a backup. If states were behaving responsibly and had viable damage regimes for torts, s1983 wouldn't be necessary, and QI irrelevant.

[Biastians]

Are you describing Islam as a cult?