Today in Supreme Court History: June 21, 1989

6/21/1989: Texas v. Johnson is decided.

Comments

[Dan Schiavetta]

Bivens v. Six Unknown Named Agents 403 U.S. 388 (decided June 21, 1971): federal officials can be sued for violation of Constitutional rights (just as state officials can be under 42 U.S.C. §1983) (such actions are now called “Bivens” actions) (here, FBI agents conducted improper drug search)

Texas v. Johnson, 491 U.S. 397 (decided June 21, 1989): struck down on First Amendment grounds laws in 48 states banning flag burning as a form of political protest (plaintiff had been prosecuted for flag burning outside the 1984 Republican convention)

Carson v. Makin, 596 U.S. 767 (decided June 21, 2022): if state is giving assistance to private schools (in places where there are no public schools -- this is Maine, “the most rural State in the Union”) it can’t exclude sectarian schools

South Dakota v. Wayfair, Inc., 585 U.S. 162 (decided June 21, 2018): states can collect sales taxes from suppliers who have no physical presence in the state (overruling National Bellas Hess v. Dept. of Revenue of Illinois, 1967, and Quill Corp. v. North Dakota, 1992)

United States v. Taylor, 596 U.S. 845 (decided June 21, 2022): Hobbs Act crime (robbery with interstate component) is not a “crime of violence” as contemplated by the aggravated sentence statute, 18 U.S.C. §924(c) (use of firearm during “crime of violence”) (dissent by Thomas, who notes defendant was one drug dealer pulling a gun on another)

NCAA v. Alston, 594 U.S. 69 (decided June 21, 2021): NCAA’s prohibition on student athletes getting paid violates the Sherman Act; subjecting NCAA to antitrust analysis (unlike major league baseball in Flood v. Kuhn)

Hirabayashi v. United States, 320 U.S. 81 (decided June 21, 1943): upholding curfew on Japanese-Americans living on the West Coast during World War II as use of Congress’s War Power, art. I, §8, cl. 11; Stone’s opinion says that Japanese self-segregate and many are dual citizens of Japan (in 1987 Hirabayashi got his conviction vacated, 828 F.2d 591)

Guinn v. United States, 238 U.S. 347 (decided June 21, 1915): invalidating grandfather clauses exempting white people from written exam which everyone else (i.e., black people) had to pass in order to be allowed to vote (one imagines the written exams disappeared pretty quickly after this decision)

Colgrove v. Battin, 413 U.S. 149 (decided June 21, 1973): civil jury of six jurors instead of twelve does not violate Seventh Amendment (fortunately -- I’m a civil trial lawyer and it takes long enough to pick six)

Florida v. Bostick, 501 U.S. 429 (decided June 21, 1991): police can’t search without a warrant even if person agrees to it after being told he had the right to refuse, if under circumstances person doesn’t feel free to refuse (here, police boarding bus searched passenger’s luggage, found drugs)

[Noscitur a sociis]

United States v. Taylor, 596 U.S. 845 (decided June 21, 2022): Hobbs Act crime (robbery with interstate component) is not a “crime of violence” as contemplated by the aggravated sentence statute, 18 U.S.C. §924(c) (use of firearm during “crime of violence”) (dissent by Thomas, who notes defendant was one drug dealer pulling a gun on another)

Attempted Hobbs Act robbery! A completed robbery is still a crime of violence.

[Dan Schiavetta]

Thanks. Will revise.

[Michael Resanovic]

Bivens v. Six Unknown Named Agents 403 U.S. 388 (decided June 21, 1971): federal officials can be sued for violation of Constitutional rights (just as state officials can be under 42 U.S.C. §1983) (such actions are now called “Bivens” actions) (here, FBI agents conducted improper drug search)

Why would you include a case that's been overturned? 😉

[The Margrave of Azilia]

“(one imagines the written exams disappeared pretty quickly after this decision)”

The Oklahoma legislature gave a 12-day window for blacks to register to vote as allowed by the Guinn decision – those who failed to register during this interval would miss out on the decision's benefits.

In 1939, the Supreme Court belatedly declared this was unconstitutional.

https://supreme.justia.com/cases/federal/us/307/268/

[Dan Schiavetta]

The creativity in making up new reasons why black people couldn't vote reminds me of the creativity of the Catholic Church over the centuries in thinking up new reasons why women can't be priests.

[The Margrave of Azilia]

Women got a 12-day window to be ordained?

[Dan Schiavetta]

If God declared that women could be priests, the Church would probably put up such a roadblock.

[The Margrave of Azilia]

Why do priests pay extreme religious devotion to a woman?

[Dan Schiavetta]

Mary is important only for her uterus, and is a model of submission. She doesn’t even protest when Jesus disrespects her. A baby-making submissive. Who never had sex even once (“the Unwithered Rose”)! One can see why a male priesthood can hold her up as a model for all women.

[Krayt]

Jesus even kind of phase-spaced out of her uterus, like the USS Pegasus, to avoid wrecking her physical virginity, I kid you not.

Logic!

[Dan Schiavetta]

In the Gospel of James, a mid-second-century work, there are doubts about this, and a midwife is sent to inspect Mary’s vagina. When she goes to touch it her hand is burned off.

[defaultdotxbe]

Jesus was also never a child, just a tiny adult. I love the medieval paintings where he has a receding hairline or male pattern baldness.

[The Margrave of Azilia]

Yogi Berra reportedly criticized a certain restaurant: “The food is terrible and the portions are too small.”

That’s like criticizing a religious organization by saying: “It’s a false church and they should admit more people to their priesthood.”

[Michael P]

Or "Nobody worships there any more, it's too crowded."

[Malika the Maiz]

Because she was the vessel for the male God's son.

[Bob from Ohio]

"Why do priests pay extreme religious devotion to a woman?"

IDK for sure but I do know that captcrisis is not a good source. Apostates seldom are.

[Sarcastr0]

Don’t gatekeep Christianity.

[Bob from Ohio]

Just stating facts. He is an apostate ["person who renounces a religious or political belief or principle"] of the Catholic church .

Disgruntled apostates are not good sources of info about the church they abandoned.

[Sarcastr0]

This is just ad hominem covered with gatekeeping.

I'm sure the Church is glad for your brave and fallacious defense of it's integrity.

[SRG2]

Interestingly, the SC decision only briefly mentions the plaintiffs' actual crimes. The modern fashion would be to state up front the facts of the case in some detail.

For some reason the notorious scumbag McReynolds wasn't involved in the case.

[David Nieporent]

The modern fashion would be to state up front the facts of the case in some detail.

That's a Thomas special. I mean, he's not the only one who does it, but he loves to poison the well by describing just how awful the defendant is.

[Michael P]

Which Thomas? None of the justices at the time of Guinn v. United States were named Thomas.

[Sarcastr0]

Read SRG2's post again and come back.

Are you getting lazier?

[Michael P]

So DMN made an off-topic racist rant and you're right there next to him?

Not surprising, sadly.

[Noscitur a sociis]

There’s a lot of racist criticism of Thomas out there, including on this site.

That comment wasn’t an example of it.

[Michael P]

It's absolutely racist according to the standards of DMN and S_0.

[JoeFromtheBronx]

What is left of Bivens is unclear.

Gorsuch recently reaffirmed his opposition to the current allowance of a six-member criminal jury in state cases.

It is one of the few areas where the federal and state rules arising from the Bill of Rights do not mesh. I am still waiting for a Third Amendment incorporation case.

[Dan Schiavetta]

The Third Amendment was based on a right to privacy. It’s been incorporated, partly. (Another source of that right is the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects".)

[JoeFromtheBronx]

The Third Amendment has two aspects: civil power is supreme over military power (see Laird v. Tatum) & privacy (see the dissents in Poe v. Ullman & the majority opinion in Griswold v. Connecticut).

I suppose the citation in Griswold suggests it should be incorporated but it's dicta.

[The Margrave of Azilia]

I'm not holding my breath for the grand jury clause to be incorporated, though a strong incorporationist opinion, with quotable lines about the importance of grand juries as shields for innocent suspects, might put more vigor into the institution.

[SMP0328]

I am still waiting for a Third Amendment incorporation case.

There was one in the Second Circuit: Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982)

[Dan Schiavetta]

Thanks! Interesting opinion. Though the court there went only so far as to hold that the National Guardsmen, directed by the Governor (to evict striking prison employees from their state-provided housing), were “soldiers” under the 3A. The NG, directed by the Governor, is the modern analog to the “well-regulated militia” relied on by the 2A to provide “the security of a free state”. So the 2A is subject to the 3A.

[JoeFromtheBronx]

Yes, the book on the Bill of Rights written by Ellen Alderman and Caroline Kennedy discusses it.

[SMP0328]

NCAA v. Alston, 594 U.S. 69 (decided June 21, 2021): NCAA’s prohibition on student athletes getting paid violates the Sherman Act; subjecting NCAA to antitrust analysis (unlike major league baseball in Flood v. Kuhn)

That's only because nobody on the current Court loves college sports as much as Justice Blackmun adored baseball (see Part I of his opinion in Kuhn).

Hirabayashi v. United States, 320 U.S. 81 (decided June 21, 1943): upholding curfew on Japanese-Americans living on the West Coast during World War II as use of Congress’s War Power, art. I, §8, cl. 11; Stone’s opinion says that Japanese self-segregate and many are dual citizens of Japan (in 1987 Hirabayashi got his conviction vacated, 828 F.2d 591)

This was the last decision to rule that the federal government was not required to provide equal protection of the laws. Korematsu v. United States did hold that equal protection principles applied to the feds, even as the Court upheld the internment camps.

[ReaderY]

not intendsmed as a reply to this.

[Bob from Ohio]

"nobody on the current Court loves college sports "

Yes, because its a disaster for the future of college sports.

Creating minor league NFL and NBA will in the long run kill college sports. Destroying tradition, making the athletes as mercenary and selfish as actual pros.

[Rev. Arthur L. Kirkland]

"Destroying tradition, making the athletes as mercenary and selfish as actual pros."

Sounds almost as bad as the exploitation, hypocrisy, unfairness, and cheating that preceded recent changes.

[bernard11]

They've been minor league NFL and NBA for decades, and are still alive.

[Bob from Ohio]

They had tradition and stability.

Now with NIL, transfer portal, consolidated conferences [USC in Big Ten!], they have wrecked that. Might take a while, but fans will get tired of the circus.

[bernard11]

Maybe, but I don't think so.

Tradition and stability are nice, but they come at a high cost to the players, as the money flows to coaches instead of the guys the fans pay to see play. Why should they live on a shoestring, risk injury, etc. without getting paid. If you are going to be pissy about players getting paid directly then NIL is a sensible alternative.

Market forces, Bob

Besides, there has never been that much stability, just by virtue of the fact that the players have limited eligibility. And if players can lose scholarships on the coach's whim, why shouldn't they be allowed to transfer easily?

[Bob from Ohio]

"NIL is a sensible alternative"

It is direct pay for play, colleges form "collectives", raise funds and pay. Then second collective come along and poaches.

No selling autographs or jerseys or doing commercials which is how it was sold.

[ReaderY]

I realize that my views on the Religion Clauses now satisfy nobody. In general, I believe in a fairly toothy Free Exercise Clause. But I think the evidentiary burden needed to show sincerity should be higher than a plaintiff’s own self-serving declaration. And I think that while religious people should generally be allowed to do their thing, the Constitution doesn’t require that it be done at public expense. In addition, I am very skeptical of the Alito approach that treats conservative religious people as a persecuted minority and constantly makes quasi-equal-protection/discrimination arguments to justify religious people’s right to dip into the public till, e.g. the Carson v. Makin case holding that funding secular programs but not religious ones is discrimination.

[JoeFromtheBronx]

Do you think Sherbert v. Verner was wrongly decided?

If the state optionally provides the expense, is it problematic on constitutional grounds since people are being taxed to fund religious beliefs?

[SRG2]

Rehnquist, on flag-burning:
For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here.

https://supreme.justia.com/cases/federal/us/491/397/

His dissent is one of the most hysterical, overblown and “romantic” in the worst sense, I have come across. Even Scalia joined the majority. I wonder whether the later O’Connor and Stevens would have changed their minds. I also wonder who on the current bench would agree with Rehnquist.

[Rev. Arthur L. Kirkland]

"I also wonder who on the current bench would agree with Rehnquist."

That likely depends on whether Harlan Crow is as fond of the American flag as he is of Nazi memorabilia.

[David Nieporent]

Well, Alito definitely would be against free speech. Not sure about anyone else.

[Rev. Arthur L. Kirkland]

Has Justice Alito explained why his wife would fly Phillies flags at their homes yet? Has he even tried to address that point?

[JoeFromtheBronx]

Texas v. Johnson was one of Justice Stevens' bad calls.

The roots of the divide go back to the 1960s when Justices Fortas and Warren in Street v. N.Y. accepted a law against burning (and other defiling) the flag.

The Court narrowly relied on the chance the prosecution was based on pure speech. But, it showed that some liberal-leaning justices would allow such laws.

The Supreme Court had a range of disputes about flags, including advertising, penis flag art displays, a guy wearing a flag on the seat of his pants, and a peace symbol attached to a flag.

There was also a 1930s case involving flying a red flag.

[Brett Bellmore]

Well, we have a ruling in UNITED STATES v. RAHIMI. Unshockingly, it being a federal law at stake, rather than a state law, the Court upheld gun control.

The Court rationalizes that when you combine the historical existence of surety laws, (Which could require posting a bond to go armed, which would be forfieted if you misused the arm.) and "going armed" laws, which only prohibited going about armed in a manner that was threatening, you arrive at a judicial right to temporarily deprive people of the right to possess firearms at all.

Kind of a stretch, since neither cited law allowed prohibiting simple ownership, but the result was really determined on the basis of Rahimi not being a nice guy, and it being a federal law.

Only Thomas would have upheld the 2nd amendment in this case. His dissent was brutal, the majority deserves every word of it.

[Bob from Ohio]

Bad facts make bad law.

[Brett Bellmore]

Indeed.

[JoeFromtheBronx]

Jackson's concurrence was fairly brutal. She was correct.

[Brett Bellmore]

In Bruen the Court announced a principled approach to the 2nd amendment, which most of the majority proved to be too unprincipled to actually be willing to apply. It's more than a little disappointing, but I can't honestly say that I'm surprised.

[Rev. Arthur L. Kirkland]

I hope Mr. Bellmore lives to see an enlarged Supreme Court dial back some gun nuttery.

[David Nieporent]

In Bruen the Court announced an unworkable approach to the Second Amendment, both from a practical and jurisprudential standpoint.

And, of course, once again, Area Man Passionate Defender Of What He Imagines Constitution To Be.

[JoeFromtheBronx]

Plus, as Barrett partially addressed, just how 'principled' it all was is rather unclear.

[David Nieporent]

I am pro-RKBA. I agree with Heller and McDonald and I think that many of the laws struck down pursuant to Bruen do violate the 2nd amendment. But I think the Bruen approach is unworkable and not nearly as principled as Brett pretends.

(The worst part was when Bruen said that you have to find historical analogues of a current restriction… but then said, "But even if you do, maybe that doesn't count.")

[Brett Bellmore]

It was workable, except in the sense that it didn't lead to a place people accustomed to and comfortable with modern gun control laws liked.

[Rev. Arthur L. Kirkland]

" Only Thomas would have upheld the 2nd amendment in this case. His dissent was brutal, "

Harlan Crow must be worried that the government will come for his Hitler pistols. Does Leonard Leo collect Nazi rifles?

[Dan Schiavetta]

Inconsistent with Bruen. No two ways about it.

[Brett Bellmore]

Absolutely. Most of the Bruen majority turned out to not really mean it the moment principle dictated arriving at a conclusion they didn't like. They rationalized not upholding the 2nd amendment in this case, and nobody is going to be fooled into thinking that isn't what happened.

The lower courts that are hostile to the 2nd amendment have just gotten all the excuse they needed to refuse to really apply Bruen.

[SMP0328]

Rahimi takes alot of the steam out of Bruen. I was surprised it was an 8-1 decision. When you combine Bruen with Rahimi you get Casey for the Second Amendment: can't ban, but can significantly regulate.

[Noscitur a sociis]

Only time will tell, but I don't agree—I think it's actually fairly narrow. It clarified that the historical analogue requirement is more flexible than some maximalists thought or wanted, but it still has (or at least can have) some real teeth.

Now, it's certainly possible that it offers the most steam that could plausibly be taken out of Bruen by this court, in which case the hoplophobes can certainly take a bit of a victory lap.

[Dan Schiavetta]

If not a danger to those in his household, a danger to the public at large? His gun can be taken away if he’s a danger to his wife. But if he’s a danger to his neighbor, he can arm up all he wants.

[Rev. Arthur L. Kirkland]

Justice Thomas loves to depict wrongful conduct of those he dislikes in vivid, extensive detail -- yet the violent asshole underlying this dispute gets none of that treatment from the lone dissenter.

#Partisan
#Hack

[Brett Bellmore]

Oh, I agree, that aspect doesn't make much sense. But neither is properly a federal matter to begin with.

[JoeFromtheBronx]

If true, that would be fairly originalist (FWIW in my view) since historically fundamental rights have had a slew of regulations.

[Brett Bellmore]

Historically federally guaranteed fundamental rights had a lot of state level regulations, for the simple reason that the Bill of Rights didn't apply to the states until the 14th, and the Court didn't let that application matter until Brown.

[JoeFromtheBronx]

There was a general understanding that fundamental rights could be broadly regulated. Not just "state level." Generally.

The breadth of First Amendment protections, for instance, was expanded in the 20th and 21st Century. Both as applied to the federal government and the states.

The Court in many ways "let the application matter" before Brown. There were lots of First Amendment cases overruling state rules, including but far from limited to the famous flag salute cases, before the mid-1950s.

The Supreme Court was more active in applying the criminal justice amendments in the Warren Era, but there too, it supplied some teeth to limits on the states.

For instance, before the famous Gideon opinion regarding the right to a lawyer, the Supreme Court required it repeatedly because of "special circumstances" & by Brown, they basically required it in every state case it decided.

[Bob from Ohio]

"you get Casey for the Second Amendment"

Swell.

Extremist right wing court!

[David Nieporent]

Rahimi was not only a terrible plaintiff, but he also litigated it stupidly.

[Brett Bellmore]

Still no excuse for the Court's majority to perpetrate this ruling. They announced a methodology for deciding 2nd amendment cases in Bruen, it was entirely defensible as a matter of originalist jurisprudence, and as Thomas points out, the majority only pretended to follow it here.

They could have excoriated the failure to prosecute Rahimi's supposed crimes, to settle for a restraining order in the face of what were alleged to be multiple violent felonies. Instead, they made excuses for violating the Constitutional rights of somebody who was never convicted of a crime.

This is not an admirable moment for the Court.

[Noscitur a sociis]

Instead, they made excuses for violating the Constitutional rights of somebody who was never convicted of a crime.

Kind of begging the question a bit here, aren't you?

[Brett Bellmore]

No question begging at all, that's exactly what happened: The only thing Rahimi got convicted of was exercising his 2nd amendment rights. The acts that supposedly justified taking his guns away? He was convicted of none of them. The majority was fine with a judge stripping somebody of their 2nd amendment right on their own say so, without the full protection of a criminal trial.

[Noscitur a sociis]

The question begging is your assumption that this violated his rights.

[Brett Bellmore]

That's not much of a case for question begging, if you're required to agree with the Court in order to claim it.

[Michael P]

Would you feel better if Brett said "stripping" or "revoking" rather than "violating'?

How many of your core civil rights are you okay with a court deciding to take away in the absence of any conviction?

[Noscitur a sociis]

There's all manner of otherwise constitutionally-protected conduct that can be restricted without a criminal conviction (including through protective orders like the one at issue in this case!), which is usually not very controversial at all.

[Michael P]

There's an enormous gulf between "restricted" and "removed". Can protective orders remove someone's rights to freedom of speech, religion or petition? Freedom from unreasonable search or seizure, or to a jury trial?

[Noscitur a sociis]

With respect to judicial findings at a level no higher than probable cause (less than needed to issue a protective order):

Yes
Not currently, but only by legislative grace
Yes
Yes
No

[Noscitur a sociis]

1. My prediction was, as usual, correct: the fact the the first tranche of challenges came from dangerous criminals who raised them after getting caught will lead to a narrower reading of the right. It would have been nice to rack up some wins on issues that affect responsible gun owners first.

2. That said, I found the opinion persuasive. Its analysis of how to analyze historical analogues seems particularly valuable guidance, for both the second amendment and other key rights (the jury composition issues that Justice Gorsuch raised recently, for instance). I do think it's likely to be abused by the broadly hoplophobic lower courts.

3. The Brett Bellmores of the world can take some solace that it does rely heavily on the fact that protective orders have individualized findings, and expressly rejected the argument that the 922(g) prohibitions were fine because the covered people weren't "responsible". This doesn't bode well for the felon in possession ban.

[JoeFromtheBronx]

There have been a slew of 2A cases since Heller and Bruen.

The Supreme Court might have taken this case, but there were a variety of "responsible gun owners" involved in the rest I would expect, without having done a full analysis.

[Noscitur a sociis]

There were a lot of cases from responsible gun owners between McDonald and Bruen. By and large, the restrictions they challenged were upheld, and the Supreme Court denied review, which is part of what Bruen criticized and told them to stop doing. The first serious post-Bruen challenges were cases like this: challenges to prohibitions on certain kinds of dangerous people having guns, brought by people in those categories after they got caught violating the law. (One major exception is the Third Circuit case, Range v. Attorney General, where a felon challenged the possession ban before violating it.) There are still a lot of silly restrictions (e.g. magazine capacity limits, "assault weapon" bans, etc.), and, for that matter, a lot of place in this country where, for all intents and purposes, it's still all-but impossible for an ordinary citizen to own or carry a firearm. Not that anything could have been done to stop the criminals from raising these challenges, but it would have been nice to have some of those laws taken care of first.

[JoeFromtheBronx]

Duke Center For Firearms Law is one useful place to look for news, including SCOTUS petitions.

I do see numerous felon cases. So, point taken to a degree.

Nonetheless, there are others involving licensing/sales rules, types of arms, and so on. I would like to see a full analysis of the cases.

[Noscitur a sociis]

Yes, there are a lot of other cases raising those issues at very stages along the way. But the Supreme Court didn’t take and decide any of them yet, and I think the law and the country would probably be in a better place if they had. That’s all I’m saying.

[Brett Bellmore]

" By and large, the restrictions they challenged were upheld, and the Supreme Court denied review,"

About 12 years between McDonald and Bruen, it reminded one of the 68 year period between Miller and Heller, when the Court refused cert to every last case where one of the parties raised the 2nd amendment as an issue.

The problem there wasn't so much the lower courts upholding the restrictions, (As was only to be expected.) as it was the Supreme court refusing to do anything about it. And THAT was entirely under their control, you can blame nobody else for it.

[Sarcastr0]

What a complicated edifice you have built to explain why lots of smart people of all political stripes don't agree with you, the only one in the Republic with a clear-eyed view of what the Constitution and Supreme Court *clearly* require.

Even if the Court doesn't agree.

[Noscitur a sociis]

I'm not sure what "edifice" you think I've constructed, but there's nothing complicated about it: these are hard questions, the right answer is contrary both to how things have been done for a while and to what a lot of people feel very strongly is an important public policy. That means that smart people end up disagreeing passionately and vehemently in good faith. There's nothing nefarious about it, they're just wrong.

[Sarcastr0]

Sorry, that was to Brett! Oh jeez.

Glad you took my seeming to come at you hot and turned it into an illustration of what the opposite of his ‘my way or you’re lying’ worldview is like.

FWIW, I’m with DMN on gun rights – individual RKBA; Bruen is bad doctrinally.

[Brett Bellmore]

1) I wasn't expecting to win this one, either. I wasn't expecting to lose it this badly, though; I thought maybe two or three of the justices would have taken a principled stance, but, just one? Disappointing.

2) I didn't find it persuasive: Thomas is right: The two supposedly analogous laws impose nothing like a flat prohibition on possession. Surety laws just fine misuse, "going armed" laws only prohibited, essentially, what we today call "brandishing". Both let you keep your guns at home, or carry them with you so long as you didn't do something abusive with them.

3) I take no solace in people losing rights without being convicted of crimes, regardless of which right is at stake. "Findings"? Where the hell is the jury in "findings"?

[Noscitur a sociis]

I wasn’t expecting to lose it this badly, though; I thought maybe two or three of the justices would have taken a principled stance, but, just one?

I guess this depends on what you mean by “badly”. It’s hard for me to imagine upholding the conviction while keeping the law closer to the way you want it to be. Is that better or worse to you than four justices agreeing with you in every possible way, and five (for instance) overruling Bruen altogether?

[Michael P]

The Supreme Court seems to have thrown out Blackstone's ratio in this case; rather than requiring a trial or conviction to remove someone's constitutional rights, now it can be done by judicial fiat.

[Brett Bellmore]

On the basis of it being "only temporary". But how temporary?

[Brett Bellmore]

What I mean by "badly" is only one Justice agreeing with me. If it had been 5-4, I might have hoped that a modestly different set of facts might have gone my way. That this result was the low water mark.

But at 8-1, there's little chance that 4 of the justices were barely on board with the result. My position is clearly not even remotely a winning one in the present Court, only Thomas agrees with it. This means the Court is almost certainly not going to fully restore the 2nd amendment in my lifetime.

[David Nieporent]

That doesn't even make sense as a model for how judges — or human beings, for that matter — think. Why would a justice rejecting a bad argument make it any less likely that he or she would reject a good one?

[Brett Bellmore]

They weren't rejecting a bad argument. There wasn't anything bad about Rahimi's argument as opposed to Rahimi himself, it was a classic case of hard cases leading to bad law.

It's not as though there was a long standing tradition in this country of letting judges deprive people of basic constitutional liberties on the basis of mere "findings", rather than a criminal conviction.

What this demonstrated is that only 1 of the Justices actually cared to honestly follow the Bruen guidelines if they didn't like the resulting outcome. I have to expect that a lot of important 2nd amendment cases that should rightfully be easy wins under Bruen will actually be losers because the Court isn't honestly applying the principles it set out in Bruen.

[Sarcastr0]

A classic case of disagreeing with Brett meaning you do so in bad faith re: the law. Because everyone secretly agrees with Brett, just many are too cowardly to admit it.

I do notice Brett that who is honest and who is not seems utterly outcome-oriented for you.

[David Nieporent]

It’s not as though there was a long standing tradition in this country of letting judges deprive people of basic constitutional liberties on the basis of mere “findings”, rather than a criminal conviction.

Um, that's what all restraining orders do, in the non-RKBA space. They deprive people of liberty on the basis of mere findings rather than a criminal conviction.

[Bob from Ohio]

"fully restore the 2nd amendment in my lifetime."

Cheer up. Gun rights keep winning legislative victory after victory in decent states, most of the country.

Its the authoritarian states [west coast. mid-Atlantic region, Illinois and parts of New England] which irrationally hate gun rights.

[Brett Bellmore]

Right, but you're not going to see the Court rein in those authoritarian states, based on this.

[Noscitur a sociis]

This means the Court is almost certainly not going to fully restore the 2nd amendment in my lifetime.

Yes, I agree that the Supreme Court isn’t going to interpret the second amendment exactly the way you think it should. But if you actually read the opinion and why they ruled the way they did, you’ll see there are reasons to be optimistic they’ll come a lot closer than they might have.

But if you’d rather just complain instead, that’s certainly your right.

[Sarcastr0]

Where are you getting your SCOTUS favoritism for federal law from?
It could be right but I haven’t seen anyone but you say it, much less do any homework to support it.

[Noscitur a sociis]

I think this is true in one regard: the Supreme Court will all but automatically grant review of a decision holding that a federal law in unconstitutional, but is much more comfortable denying certiorari of a similar decision for a state law. I agree that I haven’t seen much that suggests they’re more likely to uphold a federal statute than its state counterpart. Any analysis would have to incorporate the fact that they have a lot more flexibility to read a federal statute in a way that avoids constitutional problems, whereas they may be stuck with a state court’s construction of what a state law means.

[Brett Bellmore]

Are you serious? Look up, "The switch in time that saved Nine"; The last 87 have been nothing but a long run of SCOTUS favoritism for federal law. You'd have nothing like the current federal leviathan if the Court were still subjecting federal laws to the same degree of scrutiny state laws get.

[Sarcastr0]

This one thing that happened nearly 90 years ago does not provide support for the sweeping tendency you blithely invoke.

You’d have nothing like the current federal leviathan if the Court were still subjecting federal laws to the same degree of scrutiny state laws get.
Show your work, Brett.

I don’t think you can; this reads like your feelings are authoring your facts.

And, finally, you yell about the federal leviathan but want the government to arrest protesters if they show up the day after a riot happens, and direct control of schools, and heavy regulations of social media, and a broad program to find and punish Antifa.

You want a very big vert forceful government, mostly for oppressing people you disagree with.

[David Nieporent]

You’d have nothing like the current federal leviathan if the Court were still subjecting federal laws to the same degree of scrutiny state laws get.

Show your work, Brett.

The "Switch in time" itself was about state, not federal, law!

[Sarcastr0]

I did not know that; I've recently read 2 FDR bios (neither very good) and never learned it was other than just some random New Deal legislation.

Haha wow, that's a center mass hit on Brett's postulate.

Lets see how he reacts....

[JoeFromtheBronx]

Yes, it was a state minimum wage law.

The New Deal change largely dealt with giving wider rein for state and federal governments to regulate economic regulation.

[Sarcastr0]

I thought of the New Deal as being a largely federal push.

Do you have any books to recommend on it?

[nystateofmind]

Will be interesting to see how Josh Blackman gets around the particular criticism of Judge Ho.

[Zarniwoop]

Yep, I thought it was a pretty pointed bench slap of Ho.

[fn2] Many of the potential faults that the Fifth Circuit identifies in Section 922(g)(8) appear to sound in due process rather than the Second Amendment. E.g., 61 F. 4th, at 459; id., at 465–467 (Ho, J., concurring). As we have explained, unless these hypothetical faults occur in every case, they do not justify invalidating Section 922(g)(8) on its face. See United States v. Salerno, 481 U. S. 739, 745 (1987) (a facial challenge fails if the law is constitutional in at least some of its applications).

[Bob from Ohio]

I'm sure he'll live. He can complain to them in person in a few years when he is on the court if he wants.

[Sarcastr0]

You probably don't want your legal preferences to be carried by someone more interested in rhetoric than doctrine.

You want someone who can do the job, not just piss off the people you love to piss off.

Feels good now; will not be good at forming coalitions on the Court, will write opinions that do not stick well in the lower courts, and will be much easier politically to overturn whenever the Court swings against you.

[The Margrave of Azilia]

Praise for Rahimi from Adrian Vermeule:

“…the Chief Justice offers an approach centered on what he calls, significantly, a “develop[ment] of the law,” rooted in the “principles” of the tradition rather than merely in specific historical data points, and aimed at “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” If this is still some version of originalism, it is an originalism so purposivist, so capacious, so open to reasoning from high-level principles, as to be operationally indistinguishable from non-originalism.

“The aim of the development of the law, for the majority, is to preserve the essence of constitutional principles while applying them under changed conditions — the very enterprise that John Henry Newman urged in the parallel context of the development of theological doctrine, and that classical lawyers urge as itself the traditional approach to law over time. The classical approach holds that principles are enduring, but that as circumstances change, doctrine must itself “change in order to remain the same” – as Newman famously put it. As such, the classical approach offers a third way between two poles: one the one hand, Thomas’ strict data-point version of history and tradition, with analogues allowed only at low levels of generality; and on the other hand free-form “living constitutionalism,” in which the principles immanent in the tradition can themselves be re-evaluated, changed or even discarded over time.”

https://thenewdigest.substack.com/p/rahimi-as-principled-development?publication_id=1859436&post_id=145867188&isFreemail=true&r=y5f4o&triedRedirect=true

Saint John Henry Newman, pray for us and get us more gun control! /sarc

Seriously, folks, the Founders seemed to believe that there’s a link between a well-regulated militia and the security of a free state, and that the right to keep and bear arms is important for maintaining a well-regulated militia.

No conflict between an individual right to keep and bear arms and having a militia. It may be hoary Whig political theory, but it’s a theory embedded in the Constitution.

There, IMHO, is where development of doctrine comes in – keeping the Whig theory of an armed and regulated militia until that theory is removed by amendment, while being on the alert for restrictions which would limit militia members from getting experience in the use of arms, even outside the context of militia drill – e. g., hunting, self-defense, competitive shooting, other ways of becoming comfortable with the use of arms *before* there’s ever an occasion to call for their services in some official militia deployment.

[Rev. Arthur L. Kirkland]

A Trump lawyer stated in court before Trump Judge Aileen Cannon today that the prosecutor in the classified documents case was part of a "shadow government." Cannon reportedly pushed back, likely because she recognized the Trump lawyer is not making her job -- which, as she perceives it, is to delay the case until after the election while making it appear her failures should be ascribed to incompetence and inexperience -- any easier.

[Michael Resanovic]

When are we going to get back to an original understanding of rights?:

Things that exist naturally, not created by the government. Realizing their enjoyment in an imperfect world is why government exists - something that requires lawmakers to judge what is a right, which are more important than others in case of conflict, and how best to regulate conduct so as to maximize their enjoyment. Rahimi may have reached the right result, because Congress generally has no police power. But legitimate exercise of that power allows legislators – state and federal - to balance the right to life against the right to own a firearm. This would hold even if an individual right to carry were enumerated – which it’s not.

For that matter, I hope we get back to the original 14th amendment, which proponents insisted would not take away from states any right they didn't have before. Incorporation is bunk.

[David Nieporent]

For that matter, I hope we get back to the original 14th amendment, which proponents insisted would not take away from states any right they didn’t have before.

What language is this written in?