The Volokh Conspiracy

On the theme of both-sidesism, let me draw an analogy. During the Great Awokening, there was a common call-and-response: the left would would say "Black Lives Matter," and the right would respond "All Lives Matter." The purpose of this response was obvious: to draw attention to the fact that there are many types of oppression in this world, and it is a mistake to only focus on one race. The response to the response was that "All Lives Matter" was actually racist (what isn't?) and was designed to minimize the oppression faced by black people, in particular. And don't even get started on "Blue Lives Matter." Even thinking about the lives of police officers is enough to get hate-grouped by the SPLC.

In the wake of October 7, we see a similar refrain: "we oppose Anti-Semitism, Islamophobia, and all forms of hate." It wasn't possible to focus on the most horrific act of Anti-Semitism since the Holocaust. Rather the message had to immediately be diluted to include all other types of hate. As we speak, the rate of Anti-Semitic attacks around the world is at record highs. But attention cannot be paid to Anti-Semitism, by itself.

Jew Lives Matter, All Lives Matter.

In a previous post, I wrote about the attempt by Merrick Garland's Justice Department in United States v. Rahimi, set to be argued before the Supreme Court on November 7, to sidestep the controlling "text and history" interpretative methodology described in District of Columbia v. Heller and in New York State Rifle & Pistol Ass'n v. Bruen. Rahimi is the case challenging the facial constitutionality of 18 U.S.C § 922(g)(8), a federal statute that disarms any individual subject to a state domestic violence restraining order (DVRO). In that post, I explained how the Government is contending, contrary to Bruen, that the established rule is that "Congress may disarm persons who are not 'law-abiding, responsible citizens.'" That statement is not just incorrect, but a serious distortion of what Heller actually said.

As it turns out, the Government's recently filed reply brief contains several other important errors about the fundamental principles to be applied when assessing historical analogue laws, which are central to Bruen's methodology.  Let's start with an easy one.  The Government takes Rahimi to task for allegedly asserting that Bruen limits courts to historical evidence from "near the time of ratification." Here's what Rahimi's brief actually said, after discussing attempts by some courts to boost some dicta in Heller to the level of substantive constitutional law:

[T]he original meaning of the Second Amendment must be determined exclusively using the text and the historical tradition of firearm regulations adopted near the time of ratification—not with assumptions or dicta. 

That statement by Rahimi was contrasting the use of actual historical traditions to determine the meaning of the Second Amendment, as opposed to twenty-first century dicta, or assumptions by lower courts regarding what those dicta meant. It was not an attempt to fine tune the period of time with precision.

Yet Rahimi is correct that the time around the adoption of the Bill of Rights must be the principal period to determine the original public meaning of its provisions.  Bruen quoted Heller to the effect that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them," before noting that "The Second Amendment was adopted in 1791…."

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From Kamdem-Ouaffo, PhD v. Colgate Palmolive Co., filed yesterday by Judge Claire C. Cecchi (D.N.J.); the lawsuit is a spinoff of an underlying lawsuit over "alleged misappropriation of Plaintiff's proprietary pet food flavoring information":

Defendants also note that, throughout his filings and in correspondence with the parties, Plaintiff has made a number of inappropriate assertions. For example, in a January 2023 email to certain of the Morgan Lewis and Naturasource Defendants, Plaintiff asserted that Defendants engaged in "abysmal sexual intercourse depravity," and stated, "[w]e do not hesitate about denouncing improper sexual intercourse fornicators like you, and when the form of government permits we will identify improper sexual inter[co]urse fornicators like you to [ ] the government to be prosecuted and punished, including death sentence if the Jihad/Sharia law so determines." ECF No. 40-2.

In the Colgate Action, Plaintiff made similar accusations against the Court, claiming that its prior orders have "been about SEX and MONEY, and nothing else about the laws of the United States." Kamdem-Ouaffo v. Colgate Palmolive Co., No. 15-7902, 2023 WL 4287611, at *2 n.1 (D.N.J. June 30, 2023). In that case, Plaintiff also asserted that the Third Circuit Court of Appeals only credited his "argument to the extent that it does not conflict with the Circuit Judges' personal financial, improper sexual intercourse, and political interests." Id. As has been previously stated, this Court is in no way influenced by these comments and continues to liberally construe Plaintiff's pro se pleadings and examine the relevant arguments made therein.

On a more positive note, here's another passage from the email the judge quoted:

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Federal prosecutors have announced an arrest in the Cornell threats case (see Sunday's post):

Patrick Dai, age 21, a junior at Cornell University who is originally from Pittsford, New York, was arrested today on a federal criminal complaint charging him with posting threats to kill or injure another using interstate communications….

The complaint alleges that Dai posted threatening messages to the Cornell section of an online discussion site, including posts calling for the deaths of Jewish people and a post that said "gonna shoot up 104 west." According to information provided by Cornell University Police and other public information, 104 West is a Cornell University dining hall that caters predominantly to Kosher diets and is located next to the Cornell Jewish Center, which provides residences for Cornell students.

In another post, Dai allegedly threatened to "stab" and "slit the throat" of any Jewish males he sees on campus, to rape and throw off a cliff any Jewish females, and to behead any Jewish babies. In that same post, Dai threatened to "bring an assault rifle to campus and shoot all you pig jews."

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From today's decision in Castro v. Warner, by Judge Irene Berger (S.D. W. Va.):

The Plaintiff, John Anthony Castro, brought this litigation seeking an injunction to prevent Secretary of State Andrew "Mac" Warner from placing Donald John Trump's name on the West Virginia Republican Primary ballot. He asserts that former President Trump is disqualified from serving as President pursuant to Section 3 of the Fourteenth Amendment of the United States Constitution. Mr. Castro asserts that he has competitor standing as a candidate for the Republican nomination for President and based on his intention to continue as a general election candidate.

The Defendants move to dismiss on various grounds, including lack of standing. The arguments asserted by each Defendant with respect to standing overlap. In short, they contend that Mr. Castro has not suffered a concrete injury because there is no indication that he is in genuine competition for voters in the Republican presidential primary contest. They further contend that any injury is not traceable to Mr. Trump's placement on the ballot or redressable by the relief sought, because there is no indication that third-party voters would choose to support Castro if Mr. Trump did not appear on the ballot. Mr. Castro opposes the motions to dismiss and maintains that he alleged sufficient facts to establish standing….

To establish standing, "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." An injury in fact must be "an invasion of a legally protected interest that was concrete, particularized, and not conjectural or hypothetical." ... "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice," but at summary judgment, "the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts."

Although the Defendants present their motions to dismiss as facial challenges, many of their arguments rest on whether the Plaintiff's allegations are plausible. For example, Mr. Trump's memorandum in support of his motion to dismiss argues that the "Plaintiff does not allege that he appears on any national polling" or "has secured a single dollar in campaign contributions," {The Defendant included reference to FEC campaign contribution records with respect to this argument} and that "there is no plausible claim that President Trump's inclusion on the ballot materially reduces Plaintiff's chances of being awarded West Virginia's delegates to the Republican National Convention." {The Court is aware that jurisdictional discovery and hearings have been conducted in similar case(s) filed by Mr. Castro. See, e.g., Castro v. Scanlan, et al., 23-cv-416-JL (D. N.H.). Accordingly, the Court anticipates that any necessary discovery can be completed in a brief period.} But the Plaintiff's polling position, campaign finance disclosures, and campaign activities are not part of the record in this matter.

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On November 7, the Supreme Court will hear oral argument in United States v. Rahimi. That's the case in which the Fifth Circuit unanimously held that 18 U.S.C. § 922(g)(8) violates the Second Amendment. Section 922(g)(8) is the federal statute that prohibits individuals who are subject to a state domestic violence restraining order (DVRO) from possessing any firearm.  Under the federal law, they can be sent to prison for up to fifteen years if they do.

The Fifth Circuit faithfully applied the text and history methodology first deployed by the Supreme Court in District of Columbia v. Heller and then further prescribed in New York State Rifle & Pistol Ass'n v. Bruen, decided in 2022. The Fifth Circuit determined that the statute could not stand because the Government did not demonstrate that the statute's "restriction of the Second Amendment right fits within our Nation's historical tradition of firearm regulation," which is the Government's burden to prove under the express language of Bruen.

The Government submitted its reply brief to the Supreme Court on the merits on October 25. In that brief, Merrick Garland's Justice Department took an astonishing position: Bruen's methodology should essentially be ignored.

Bruen meticulously laid out detailed procedures and tests for evaluating whether a present-day statute comports with the Second Amendment.  The first part of the inquiry is textual: "when the Second Amendment's plain text covers an individual's conduct," Bruen instructs, "the Constitution presumptively protects that conduct." The second part of the inquiry is historical:  the presumption based on plain text may be overcome only if the Government can show through historical analogues that the firearm regulation is "consistent with the Nation's historical tradition of firearm regulation." Only then may a challenged regulation be upheld as constitutional, because it regulates conduct that falls outside the Second Amendment's "unqualified command."

Bruen outlines the methodology to implement that two-part approach in future cases (where the issue has not already been decided by the Court), and then applies that methodology to the concealed carry issues before it. "Interest balancing," such as levels of scrutiny, cannot be employed. Historical analogues to a challenged statute addressing a new societal problem must be "relevantly similar." For problems that have persisted since the Founding, the fit must be tighter—they must be "distinctly similar." Read More