The Volokh Conspiracy

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Second Amendment Roundup: Firepower and the Fourth Circuit

The en banc court makes bizarre claims about the 5.56 mm cartridge.

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The case of Snope v. Brown has been distributed for the Supreme Court's conference for December 13.  Previously styled Bianchi v. Brown, the cert petition challenges Maryland's "assault weapon" prohibition which the Fourth Circuit upheld en banc earlier this year.

The Wall St. Journal's Editorial Board just took notice in "AR-15 Rifles and the Constitution" (Dec. 8), observing that the Fourth Circuit "second-guesses people who say they keep or bear an AR-15-style rifle for self-defense."  It concludes: "But the Second Amendment isn't an inkblot on the Constitution. It means something. Can that possibly not include a right to own the gun that claims to be America's bestselling rifle?"

Now for a deeper dive.  Essential to the majority's decision was a sadly-mistaken view of the quite ordinary ammunition that the banned rifle typically fires.

Back on March 20, the case was being argued before the Fourth Circuit en banc.  Judge Harvie Wilkinson noted that "Heller talks about M16s and the like, weapons of war," and another judge chimed in that "the AR15 is the M16."  That was the basis on which the court previously upheld the ban, which was now back in the court because the Supreme Court vacated and remanded the case for reconsideration in light of Bruen.

Judge Wilkinson asked appellants' counsel Pete Patterson: "Have you ever fired an M-16?"  Counsel: "I have not your Honor."  Judge Wilkinson: "Well I have and we used them when I was in the Army Reserve.  That was way back, way way back."  (He served in 1968-69.)  Judge Wilkinson went on to state:

And when we took shots at the targets, wherever we hit, there was nothing left, the kick was so powerful that when the bullets hit the human beings, it splintered them into all sorts of little pieces, there was very little left of the human being, and that was a very earlier model of the M16, and since then it's been perfected, and perfected, and perfected into an even more lethal weapon than the ones that I used.

Actually, both back then and now, the M16 (like most AR-15s) fires the relatively-underpowered 5.56 mm cartridge.  It has very little kick.  And while obviously the 5.56 can be lethal, in no way does it even come close to "splintering" a human into "little pieces."  It won't even do that to a squirrel.

While the rhetoric was toned down when the en banc decision was issued on August 6, what it said would still make any person familiar with firearms wonder what planet the court is on.  But first let's conduct a reality check on the characteristics of different higher-powered and lower-powdered rifle cartridges.

For over a century, millions of American deer hunters have chosen the .30-06 round.  That is what our Armed Forces used in the M1903 bolt action rifle and the M-1 Garand semiautomatic rifle.  The .308 or 7.62 cartridge, which the military used in the M-14 rifle, perhaps became the most popular deer round for a time.  There are numerous other rounds on the market of equal or better take-down power, such as the 6.5 Creedmoor.

In 1950, the .222 Remington cartridge was developed for varmint hunting.  It evolved into the .223 Remington round, which in turn became the basis of the 5.56 mm cartridge adopted by the military for use in the M16 and favored by many target competitors.  Neither round is preferred by deer hunters, as most loads are too underpowered to harvest big game.

Maryland game regulations require that rifles used for deer hunting must use ammunition developing a muzzle energy of at least 1,200 foot pounds.  A typical 5.56 with a normal 55 grain bullet generates 1,223 ft.-lbs. of muzzle energy.  By contrast, a. 308 round with a 150-grain bullet fires with 2,648 ft.-lbs. of muzzle energy, over double that of the 5.56.

As is plain to see, the power of the .223/5.56 round isn't much to speak of compared to typical hunting rounds.  It is so underpowered that the Armed Forces are replacing its 5.56 M16 and M4 rifles with a new 6.8 x 51 mm round (the XM7) which has muzzle energy of 2,267 ft-lbs with a 135 grain bullet.

Now to the decision in Bianchi, authored by Judge Wilkinson.  On cartridge power, it includes a single long paragraph with citations to five district court opinions and a Washington Post article, but no expert sources.  It begins: "The firepower of the AR-15 and M16 is a key component of their 'phenomenal lethality.'" They are "[b]uilt to generate 'maximum wound effect' and to pierce helmets and body armor…."  You can't have it both ways.  Maximizing the wound size requires a bullet with a soft nose or hollow point that expands.  Piercing a helmet or armor requires a bullet with a steel core or other hard metal that will not expand.

Instead of comparing other rifle cartridges with the underpowered 5.56/.223, the court compares this rifle cartridge with handgun cartridges.  Supposedly "AR-15 bullets discharge at around 'three times the velocity of a typical handgun….'" What is a "typical" handgun?  What are your calculations?  Are you aware that rifles in the AR-15 configuration come in many calibers, including as small as .22 rimfire?

"These higher velocity rounds 'hit fast and penetrate deep into the body,' creating severe damage," continues the court.  Most bullets from most firearms have that potential.  The court adds that an AR-15 bullet "yaws" or "turns sideways" in tissue, rotating and creating a large, "temporary cavity" or "blast wave" that can be "up to 11-12.5 times larger than the bullet itself"; that is known as "cavitation."   That's from another district court opinion, not a scientific study.  And it is oblivious to the fact that more powerful rifle rounds would have much more devastating effect.  But that doesn't justify banning the rifles that fire them.

This is a complex subject, and the court just didn't do any real homework.  Dr. Martin Fackler, military trauma surgeon and former director of the Army's Wound Ballistics Laboratory, wrote in the Annals of Emergency Medicine: "The most common misconception about gunshot wound treatment is that the penetration of any 'high-velocity' bullet causes enigmatic 'shock waves' and cavitation that will doom tissues even far from the bullet path."

Regarding rounds fired from the M16, Dr. Fackler wrote in Wound Ballistic Review that "most often the bullet travels about five inches through flesh before beginning significant yaw. But about 15% of the time, it travels much farther than that before yawing – in which case it causes even milder wounds, if it misses bones, guts, lung, and major blood vessels."  In Vietnam, it was found that many bullets passed through torsos "traveling mostly point forward, and caused minimal damage."

The Bianchi court next inappropriately compares wounds from rifles to those from handguns.  It asserts that a "typical 9mm [bullet] wound to the liver" from a Glock 19 handgun "will produce a pathway of tissue destruction in the order of one inch to two inches," but an AR-15 wound "will literally pulverize the liver, perhaps best described as dropping a watermelon onto concrete."  Hyperbole aside, a .30-08 deer rifle round would cause much more injury.  Again, should deer rifles be banned?

While we're comparing rifles to handguns, consider the 7.62 x 39 full metal jacket round used in the AK-47 (which Maryland bans) and the SKS (not banned).  Dr. Fackler notes that it "does not deform in tissue and travels about 26 cm [10.2 inches] before beginning to yaw. This explains the clinical finding that most wounds caused by this bullet resemble those made by much lower velocity handgun bullets."

Bianchi tells us that the "catastrophic" damage of AR-15 rounds leaves "multiple organs shattered," bones "exploded," and "soft tissue absolutely destroyed," which "often cannot be repaired" by trauma surgeons.  That potential exists for wounds from shots fired from firearms of almost any kind.

A cartridge does not care what type of firearm fires it.  A .223 round fired from an AR-15 will cause exactly the same wound as one fired from a single-shot rifle that Maryland does not ban.  Yet the Bianchi court seeks to justify the ban on certain rifles based on the wounding potential of the cartridge they fire when countless other rifles fire exactly the same cartridge.  Presumably all rifles that fire this cartridge, not to mention all that fire more powerful cartridges, may be banned.  That would be most rifles other than the .22 rimfire.

Descriptions of wounds in the most gory manner possible to justify a gun ban loses sight of the fact that the Second Amendment protects "arms," which include "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another."  (Heller, quoting Timothy Cunningham's 1771 legal dictionary.)  That criminals injure and kill innocents with arms is reason for innocents to have arms, not to ban them.

There is much more to the Bianchi's majority opinion, and Judge Richardson (joined by four other judges) does an able job in refuting the arguments.  As a side note, he knows about firearms, writing: "Speaking from experience, many hog hunters deploy the exact weapons that Maryland bans, including the AR-15."

David Kopel's post on this blog from last year – "How powerful are AR rifles?" – provides a detailed review of the issues herein.  At a more general level, my book America's Rifle: The Case for the AR-15 discusses the broader, historical context of the issue.

Free Speech

Challengers Have Standing to Challenge Connecticut "Harassment" Ban for Lawyers

The Second Circuit holds that the challengers sufficiently alleged that the ban is broad enough to cover their constitutionally protected speech (including speech that may offend some based on gender identity, race, religion, and more); the court didn't reach the question whether the ban actually violates the First Amendment, which the trial court will now have to take up.

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In Cerame v. Slack, decided today by the Second Circuit, Chief Judge Debra Ann Livingston, joined by Judges Walker and Sullivan, concluded that plaintiffs had standing to challenge Connecticut bar rule 8.4(7), which provides,

It is professional misconduct for a lawyer to … (7) Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation, or to provide advice, assistance or advocacy consistent with these Rules.

The court elaborated on the scope of the ban:

Commentary to Rule 8.4 defines discrimination to "include[ ] harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories." Harassment is defined to "include[ ] severe or pervasive derogatory or demeaning verbal or physical conduct."

In addition, while previous Commentary to Rule 8.4 specified that attorneys were subject to discipline for misconduct "in the course of representing a client," the current Commentary to Rule 8.4 broadly defines "conduct related to the practice of law," as used in Rule 8.4(7)'s text, as follows:

Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or professional activities or events in connection with the practice of law.

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Free Speech

Free Speech Unmuted: Court Upholds TikTok Divestiture Law

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My cohost Jane Bambauer and I lay out what the D.C. Circuit said. You can also watch our past episodes:

Justice Thomas's Statement Reaffirms Sword-Shield Dichotomy

"A defendant can always raise unconstitutionality as a defense 'where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right.'"

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Today the Supreme Court denied cert in Wilson v. Hawaii, which I wrote about here. Justice Thomas wrote a statement respecting the denial of cert, joined by Justice Alito. The posture of the case is a bit unusual. The defendant was convicted of carrying a firearm without a license. At the time, Hawaii imposed a "may issue" conceal carry law. It turns out that Wilson had never applied for a carry permit. To challenge his conviction, the defendant argued that Hawaii's carry law runs afoul of Bruen. However, the Hawaii Supreme Court held that he could not raise the Second Amendment as a defense against the carry regime. Justice Thomas explains:

There, the [state] court invoked state standing law to avoid any meaningful Second Amendment analysis. It held that, because Wilson had not applied for a license and had not been charged with violating the licensing statute itself (which was not a criminal statute), he lacked standing to challenge the particulars of the licensing regime. Id., at 12–13, 543 P. 3d, at 444–445. Instead, he could argue only that the Second Amendment categorically forbids state licensing regimes. Because that is not the case, the court held, Hawaii's prohibitions on unlicensed carry "do not graze Wilson's Second Amendment right."

Justice Thomas explained why this approach is mistaken:

A defendant can always raise unconstitutionality as a defense "where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right." Smith v. Cahoon, 283 U. S. 553, 562 (1931). A "long line of precedent" confirms this point. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 755–757 (1988) (collecting cases).

Even though Wilson was not being prosecuted for violating the civil registration law, the defendant could still challenge the government's enforcement action based on the unconstitutionality of the gun control law.

Here, the Defendant does not need any sort of cause of action to raise the unconstitutionality of the statute. The Constitution is being used as a "shield."

However, Justice Thomas does not say that "A defendant can always raise unconstitutionality," full stop. It can always be raised as a "defense" or a "shield." But for the Constitution to be raised as a "sword" to seek affirmative relief, a cause of action is needed. Justice Thomas recognized this principle in last term in DeVillier v. Texas:

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. (slip op. at 5.)

Wilson should have been able to invoke the Second Amendment defensively, but could only assert it offensively with a cause of action.

Justice Thomas continues to bring clarity to an area of that is often misunderstood.

For those interested in reading further, Seth Barrett Tillman and I discuss the sword-shield dichotomy in Sweeping and Forcing (pp. 389–404); see also Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citing Sweeping and Forcing, supra) (adopting the sword-shield dichotomy as basis for dismissing plaintiffs' purported Section 3 action).

Justices Thomas, Alito, Gorsuch, and Kavanaugh Are Active on the Cert Docket

Justice Barrett remains the most gun-shy Justice.

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Today the Supreme Court denied review in three high profile cases. In each case, Justices Thomas and Alito wrote separately. In two cases, Justice Gorsuch wrote separately. And in one case, Justice Kavanaugh would have granted cert. In all cases, Justice Barrett remained silent.

First, the Court denied cert in Boston Parent Coalition for Academic Excellence Corp v. The School Committee For the City of Boston. This case challenged the affirmative action policies of Boston Public Schools, where there as overt evidence of discrimination against Asian students. The First Circuit, following the Fourth Circuit's lead in Coalition for TJ v. Fairfax County School Board, rejected the Fourteenth Amendment claim because Asian students were "still over-represented."

Justice Gorsuch wrote a statement respecting the denial of cert in the Boston case. Here, Boston had changed its policy, and the plaintiffs had not challenged the new policy. Gorsuch observed:

Strictly speaking, those developments may not moot this case. But, to my mind, they greatly diminish the need for our review.As a result, I concur in the Court's denial of the petition for certiorari.

In other words, the Court has a discretionary docket, and he did not think this case was a good use of discretion.

Justice Alito dissented from the denial of cert, joined by Justice Thomas. He explained that the case was not moot, due to the suit for nominal damages.

Boston later replaced the challenged 2021–2022 admission policy with a new policy that the Coalition does not challenge here. But, unlike respondents, I fail to see how that moots this case. First, the Coalition seeks nominal damages to redress the unconstitutional effects of the 2021–2022 admission policy. See Record 2103; Uzuegbunam v. Preczewski, 592 U. S. 279, 292 (2021).

Alito criticized his colleagues, again, for not addressing post-SFFA "defiance":

We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions. I would reject root and branch this dangerously distortedview of disparate impact. The Court, however, fails to do so today, so I must respectfully dissent.

Recall that Justices Alito, Thomas, and Gorsuch would have granted the TJ Coalition an emergency injunction back in 2022, and Alito and Thomas (but not Gorsuch) have granted cert in that case in 2024. Justices Kavanaugh and Barrett are silent on this issue. The Court is now content to let these issues fester in the lower courts, as SSFA is ignored.

Second, the Court today denied certiorari in Wilson v. Hawaii. In this case, the Aloha state had a "may issue" carry regime that would violate Bruen. And the defendant was convicted of violating that law. But the Hawaii Supreme Court held that the defendant could not raise the unconstitutionality of the law, because he never applied for a carry license. Justice Thomas, joined by Justice Alito, wrote a statement respecting the denial of cert. They explained that the case came to the Court at an early posture, but this vehicle, or another should be granted in the future:

Although the interlocutory posture of the petition weighs against correcting this error now, I would grant certiorari in an appropriate case to reaffirm that the Second Amendment warrants the same respect as any other constitutional right.

The Hawaii Supreme Court also took time to criticize Bruen:

The Hawaii Supreme Court disagreed. It spent the bulk of its opinion explaining why the Hawaii Constitution does not confer an individual right to bear arms, with analysis that doubled as a critique of this Court's Second Amendment jurisprudence. The court specifically took aim at our focus on original meaning. Bemoaning the policy consequences, the court asserted that an originalist interpretation of the Second Amendment "disables the states' responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement," by putting firearms restrictions "mostly out of bounds." And, it denigrated the need for public carry in particular, rejecting as un-Hawaiian "a federally-mandated lifestyle that lets citizens walk around with deadly weapons." On the Hawaii Supreme Court's view, a sounder approach to constitutional interpretation would give due regard to the "spirit of Aloha" and would preclude any individual right to bear arms, or at least subject it to "levels of scrutiny and public safety balancing tests." . . .

I think there are some penumbras emanating from the "spirit of Aloha."

Justice Thomas faulted his colleagues for tolerating defiance of Bruen:

The court's contrary path "resist[s] our decisions," Rogers v. Grewal, 590 U. S. ___, ___ (2020) (THOMAS, J., dissenting from denial of certiorari) (slip op.,at 3), and demotes the Second Amendment to a "second class right," McDonald, 561 U. S., at 780 (plurality opinion). This Court cannot tolerate "such blatant defiance" in any constitutional context. Rogers, 590 U. S., at ___ (slip op., at 5).

Justice Gorsuch wrote a separate statement in Wilson v. Hawaii. Gorsuch makes slightly different arguments than did Thomas and Alito. Gorsuch faulted the Hawaii Supreme Court for not analyzing whether the "may issue" regime violated Bruen. Gorsuch also gets into the weeds of the particular Hawaii states that Wilson was charged with violating. Gorsuch also made a Sixth Amendment argument about the state "precluding the presentation of a constitutional defense."

Third, the Court denied cert in Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin. This case challenged the school's policy to encourage students to transition without parental knowledge or consent. The parents raised a Fourteenth Amendment substantive due process claim for the right to make decisions concerning the rearing of their children. The Seventh Circuit panel (Wood, Scudder, St. Eve) rejected this claim on standing grounds.

Justices Alito and Thomas wrote a dissent from the denial of certiorari. Justice Kavanaugh did not join the Alito dissental, but would have granted the petition. Kavanaugh's vote to grant is consistent with some of his questions during the Skrmetti argument. Indeed, I think Justice Kavanaugh is acutely aware of these issues. He has young daughters who attended an elite prep school, and he was the coach of female athletics. He is speaking from experience here.

Alito explains why he would have granted review:

Relying principally on our decision in Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013), the Seventh Circuit suggested that a parent could not challenge the district's policy unless the parent could show that his or her child is transitioning or considering a transition. 95 F. 4th 501, 505 (2024). But the challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the "identities" of their children, especially if the school believes that the parents would not support what the school thinks is appropriate. Thus, the parents' fear that the school district might make decisions for their children without their knowledge and consent is not "speculative." Ibid. (citing Clapper, 568 U. S., at 410). They are merely taking the school district at its word.

Alito also faults the lower courts, as well as his colleagues, for using standing law to avoid controversial issues:

I would grant the petition so that we can address this questionable understanding of Clapper and related standing decisions. I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

This charge is a lack of courage. Here, I think Alito is looking right at Gorsuch. Speaking of Justice Gorsuch…

Of course, with three votes to grant, only one more was needed. But Justices Gorsuch and Barrett were silent. Gorsuch's silence is predictable. Last week, I listed the string of LGBT-related cases where Gorsuch did not vote to grant cert: Tingley, Edmo, Grimm, and Kincaid. He was silent in Skrmetti. And now add Eau Claire to that list. Yet, there is a deafening sound to this silence.

Justice Barrett's silence is also quite predictable. She is a standing stickler, and is most likely to find that parties are not injured. But more broadly, she is a cert stickler. Justice Barrett does not seem interested in parental rights here, and apparently did not vote to grant cert on the ACLU's due process petition in Skrmeti. (In my post last week, I erroneously wrote that the Court denied the petition, which in fact remains pending. )

By my best recollection, Barrett has only ever dissented from the denial of cert once. Perhaps with good reason. On any case where Barrett wants to grant review, there will almost certainly be three or four more votes to back her up. But where she wants to sit things out, cert is likely to be denied. Indeed, even if Justice Kavanaugh might be inclined to grant cert, he may not see a fifth vote for reversal, and sits it out.

The Court's docket continues to shrink. Maybe we should blame William Howard Taft for pushing the Court's discretionary docket a century ago, as flagged in Adam Liptak's column today. I still think we should expand the Court's mandatory jurisdiction.

Originalism

The Meese Revolution: The Making of a Constitutional Moment (2024)

by Steven Gow Calabresi and Gary Lawson.

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Gary Lawson and I have just published an intellectual biography of former Attorney General Ed Meese, which argues that Ed Meese is the most influential person ever to hold the office of U.S. attorney general—but almost no one knows it. (The runners-up are: Homer S. Cummings (1933-1939) and Robert F. Kennedy (1961 to 1964), neither of whom helped to win the Cold War or to shape judicial selection for nearly forty years.) We explain why Ed Meese beats out Cummings and RFK in 401 pages of text. We think our book would be of great interest to many of the readers of this blog.

Ed Meese was at the center of virtually every major accomplishment of Ronald Reagan's transformational presidency, from winning the Cold War without firing a shot to the economic boom that by the end of the 1980s was the envy of the world. Meese served for nearly eight years on President Ronald Reagan's National Security Counsel, and when Meese and Secretary of State George P. Schulz disagreed, President Reagan always sided with Ed Meese. Meese also served as the Chairman of President Reagan's Domestic Policy Counsel. Ed Meese was in all matters of policy President Ronald Reagan's right hand man in waging the Reagan Revolution.

Our book reveals that Ed Meese: (1) urged Ronald Reagan to make Bill Casey his campaign manager in 1980 after Reagan won the New Hampshire Republican primary that year and later to name him as head of the CIA; (2) urged Ronald Reagan to make George H.W. Bush his running mate in 1980; (3) managed Ronald Reagan's presidential transition in 1980, baking in the submission of Reagan's revolutionary slashing of marginal tax rates in legislation submitted to Congress as soon as Reagan took office; (4) advised President Reagan on the firing of air traffic controller union members who went out on strike in 1981; (5) convened the first meeting with President Reagan in the White House on developing the strategic missile defense systems from which the Patriot missile systems now defending Kiev and Tel Aviv are descended; (6) urged President Ronald Reagan's first term judicial appointments of Judges Robert H. Bork, Antonin Scalia, and Ralph K. Winter, among many others; (7) helped President Reagan confidentially hire his third White House Chief of Staff, Howard Baker, when Donald Regan resigned because of the Iran-Contra scandal; and (8) with the help of Leonard Leo, successfully lobbied President George W. Bush to appoint Justices Samuel Alito and John Roberts to the U.S. Supreme Court in 2005.

More to the point for our book, Ed Meese is the person most responsible for the rise of constitutional originalism, a style of legal interpretation that treats the text and original meaning of the Constitution rather than the policy fads of the moment as authoritative law. Ed Meese gave more than thirty speeches on constitutional law and originalism during his tenure as Attorney General debating liberal Justices William J. Brennan, Jr. and John Paul Stevens. Meese gave speeches on originalism, constitutional criminal procedure, religious liberty, economic liberties, the separation of powers, and federalism, as well as on many other legal subjects.

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Free Speech

City's Christmas Parade May Not Exclude Pride Float Because Risk of Thrown Objects or Slashed Tires

The court rejects the City's action as implementing a "heckler's veto."

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From Friday's opinion by Judge Austin Huffaker (M.D. Ala.) in Prattville Pride v. City of Prattville:

Prattville Pride is a non-profit, LGBTQ organization that alleges that the Defendant, the City of Prattville ("City"), has excluded it from participating in the City's Christmas parade (scheduled to begin at 7:00 p.m. on December 6, 2024; i.e., this evening) in violation of the group's First Amendment right to free speech and right to Equal Protection ….

According to Prattville Pride, the group has complied with all the conditions imposed by the City to participate in the parade. The group has submitted its application, paid its fee, and was granted approval by the City to participate in the parade. Thereafter, certain members of the public made general complaints about Prattville Pride's participation in the parade because of the nature of the organization.

On December 3, 2024, the Prattville City Council met and discussed the group's participation. Apparently, members of the public voiced vehement opposition to Prattville Pride's participation in the upcoming parade…. Yesterday, Prattville Pride informed the City's Police Chief that the group had received threats which "referenc[ed] harmful actions to be taken against [the group] and [its] float during the Prattville Christmas Parade," and therefore the group requested additional security monitoring and presence.  Prattville Pride also stated that it was "concerned not only with [its] own safety but that of bystanders and parade goers as well. Having police escorts could be a[n] invaluable deterrent."

In response, the City did not reject the request [f]or additional security, or agree to provide additional security, or offer to investigate the threats. Instead, the City's mayor removed Prattville Pride from the parade, stating: that Prattville Pride had brought to the City's attention "serious safety concerns" and that the "City will not put the rights of parade participants ahead of the safety of []its citizens." …

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Free Speech

Olivet University "Pled Guilty to Conspiracy to Commit Money Laundering"; Newsweek Reported That as "Pleaded Guilty to Money Laundering"

Not libel, says the Second Circuit: "the truth is so near to the facts as published that ... no legal harm has been done."

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From Friday's decision in Olivet Univ. v. Newsweek Digital LLC, by Second Circuit Judges Guido Calabresi and Sarah Merriam, and District Judge Jed Rakoff (S.D.N.Y.):

For purposes of our de novo review, we accept the following allegations of the operative Amended Complaint as true. "Olivet is a private religious institution consisting of multiple colleges" with "campuses across the United States," founded by Dr. David Jang in 2004. Olivet had "close ties to" Newsweek from 2013 to 2018; several individuals in leadership at Newsweek's parent company at the time, IBT Media Inc., were affiliated with Olivet.

In 2018, IBT Media was "facing an investigation by the Manhattan District Attorney's Office relating to" financial matters. Olivet was under investigation in 2018 as well, and on October 31, 2018, a grand jury issued a 16-count indictment charging Olivet, its Trustee William Anderson, IBT Media, and others with a scheme to fraudulently "obtain financing from financial institutions, divert the proceeds of the financing and conceal its origins in order to fund … needs unrelated to the stated purpose of the financing, and maintain a credit profile sufficient to continue" the scheme. Anderson, Olivet, and others were also charged with laundering the proceeds of that scheme.

Anderson pled guilty to money laundering in the second degree and to participating in a scheme to defraud in the first degree. On February 11, 2020, Olivet … pled guilty to (a) Count 4 of the indictment, charging it with felony falsification of business records in the first degree; and (b) a lesser included charge of Count 3 of the indictment, specifically, conspiracy in the fifth degree, a misdemeanor. Count 3 of the indictment charged Olivet and others with conspiring to commit "Money Laundering in the Second Degree," a class C felony. Under the terms of Olivet's plea agreement, the felony falsification of business records charge was eventually reduced to a misdemeanor, and all remaining counts of the indictment, except for the conspiracy charge, were dismissed.

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Cats Are from Berkeley, Dogs Are from Mar-A-Lago

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AP reports that Harris won among voters who owned only cats, 54-45, but Trump won among those who owned only dogs, 55-44, and among those who owned both, 53-46. Harris also won among voters who owned neither (averaging her 58-41 margin among women who owned neither and Trump's 51-46 margin among men who owned neither). The story has more, including further breakdowns by sex.

Did President Obama Say "the Election Proved that Democracy Is Pretty Far Down on People's Priority List"

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From a recent Tweet:

But actually, here's what he says (or you can read the very similar version in Obama's Medium post):

I should tell you that when I mentioned to a few friends that our foundation would be hosting a forum on democracy and pluralism, I got more than a few groans and eye-rolls. And it's understandable; after all, here in the United States we have just been through a fierce, hard-fought election, and it's fair to say that it did not turn out as they hoped. And for them, talk of bridging our differences when the country and the world seem so bitterly divided felt like an academic exercise. It felt far-fetched, even naïve, especially since, as far as they were concerned, the election proved that democracy is pretty far down on people's priority list. And I understood their skepticism; maybe you had a conversation with a friend that felt the same way. But as a citizen and part of a foundation that believes deeply in the promise of democracy—not only to recognize the dignity and the worth of every individual, but to produce freer, and fairer, and more just societies—I can't think of a better time to talk about it.

Obama is characterizing what some people believe ("as far as they were concerned"), not stating it as his own message. Indeed, he's expressing some disagreement with those people, at least as to the value of discussing democracy now. Perhaps some might suspect that he actually does agree that "democracy is pretty far down on people's priority interest." But quoting that phrase without Obama's "as far as they were concerned" strikes me as not quite right.

Here, by the way, is another passage from the speech that I'm glad Obama included, and that I think more people, on the Left, Right, and otherwise should bear in mind:

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Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Foreign adversaries, abortion trafficking, and Virginia's readmission.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case: In 2023, South Carolina enacted a law providing $6,000 education scholarship accounts for low-income families to be used for a virtually unlimited number of education expenses: textbooks, tutoring, homeschool materials, therapies, and tuition and fees at private and out-of-district public schools. But in response to a recent state supreme court ruling, officials have barred families from using the ESAs for private school tuition. So this week, IJ filed a petition in the South Carolina Supreme Court, arguing that the new policy falls afoul of two bedrock, towering, and monumental U.S. Supreme Court cases: Meyer v. Nebraska, which recognized the right of parents to direct the education of their children; and Pierce v. Society of Sisters, which held that this right includes the right to send one's children to a private school. Click here to learn more.

New on the Short Circuit podcast: Chicago attorney Patrick Eckler joins the podcast to share a trainwreck of a Seventh Circuit oral argument.

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President Trump's Defamation Claim Against BBC Can Go Forward

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Today in Supreme Court History: November 10, 1975

The All-Argentina Issue is Here

New from Reason: a look into what Javier Milei has accomplished and what it will take to make the most of Argentina’s window for real change. Out now for subscribers.

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