The Volokh Conspiracy

[This year, my annual post celebrating the Fourth of July is drawn from a chapter of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, and from a short essay on the same topic, The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government." It also draws upon Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation's Founding]

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

In 1776, there was slavery in every one of the 13 states. The adoption of the Declaration, and the public affirmation of its principles, led directly to the abolition of slavery in half of the United States by the time the Constitution was drafted just 11 years later. The Rhode Island gradual abolition law of 1784 read:

All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.

in 1787, during the same summer that the Constitution was being drafted in Philadelphia, the principles of the Declaration also inspired Congress to unanimously abolish slavery in the Northwest Territory from which the states of Ohio, Indiana, Michigan, Illinois, Wisconsin and part of Minnesota were formed. Even all the Southern states supported this.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery in the rest of the nation. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:

The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that "all men are endowed by their Creator with certain unalienable rights–and that among these are life, liberty, and the pursuit of happiness.

The Declaration was much relied upon by Abraham Lincoln and many others before him:

Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of "Liberty to all"–the principle that clears the path for all–gives hope to all–and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

The assertion of that principle, at that time, was the word, "fitly spoken" which has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.

The Declaration had to be explained away–quite unconvincingly–by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing "the People."

But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to "a long train of abuses and usurpations" and the list that follows the first two paragraphs. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.

Robby Soave reports, here at Reason:

The Oregon Health Authority (OHA) is a government agency that coordinates medical care and social well-being in the Beaver State. During the pandemic, OHA was responsible for coordinating Oregon's vaccination drive and disseminating information about COVID-19—both vital tasks.

The agency's office for equity and inclusion, however, prefers not to rush the business of government. In fact, the office's program manager delayed a meeting with partner organizations on the stated grounds that "urgency is a white supremacy value." …

"Thank you for your interest in attending the community conversation between Regional Health Equity Coalitions (RHECs) and Community Advisory Councils (CACs) to discuss the Community Investment Collaboratives (CICs)," wrote [the Regional Health Equity Coalition Program Manager]. "We recognize that urgency is a white supremacy value that can get in the way of more intentional and thoughtful work, and we want to attend to this dynamic. Therefore, we will reach out at a later date to reschedule."

Oddly enough, there also other people who have long believed that whites are more likely than nonwhites to have particular character traits, such as (among other things) being willing to go along with requests to do things urgently. Indeed, I'd heard jokes those people tell reflecting that very perception. I just don't think highly of those people.

UPDATE: You can see a screenshot of the e-mail, which is also included in Soave's post, here.

Formally, at least, there were no Establishment Clause cases on the Court's docket this past term. But in three cases involving Free Exercise and Free Speech claims, the Court effected a revolution in Establishment Clause jurisprudence. The facts of the cases are very different, but they all involve a common thread.

First, in Shurtleff v. Boston, the city refused to fly a flag with a cross to avoid a potential Establishment Clause violation. Second, in Carson v. Makin, Maine excluded religious schools from its tuition policy to avoid a potential Establishment Clause violation. Third, in Kennedy v. Bremerton School District, the coach was disciplined to avoid a potential Establishment Clause violation. In each case, the government restricted the rights of free exercise and/or free speech to prevent an entanglement between church and state. Call it the Lemon defense.

In each of the three cases, the Supreme Court emphatically rejected the Lemon defense. In Shurtleff, raising the flag would not have violated the Establishment Clause. In Carson, providing funding for the religious schools would not have violated the Establishment Clause. In Kennedy, allowing the coach to pray at the 50-yard line would not have violated the Establishment Clause. Therefore, fears of entanglement would not justify infringements of speech and exercise rights.

Going forward, the government can no longer say, "Lemon made me do it."  Or, as Justice Gorsuch put it, the fears about "phantom constitutional violations" will not suffice.

In truth, there is no conflict between the constitutional commands before us. There is only the "mere shadow" of a conflict, a false choice premised on a misconstruction of the Establishment Clause. Schempp (Goldberg, J., concurring). And in no world may a government entity's concerns about phantom constitutional violations justify actual violations of an individual's First Amendment rights

Justice Breyer's dissent in Carson laments the elimination of the so-called "play in the joints" framework.

I have also previously explained why I believe that a "rigid, bright-line" approach to the Religion Clauses—an approach without any leeway or "play in the joints"—will too often work against the Clauses' underlying purposes.

And Sotomayor laments that not much is left of the doctrine:

Second, the consequences of the Court's rapid transformation of the Religion Clauses must not be understated. From a doctrinal perspective, the Court's failure to apply the play-in-the-joints principle here, leaves one to wonder what, if anything, is left of it.

As I read Shurtleff, Carson, and Kennedy, the Court has snapped the "play in the joints" doctrine. Locke v. Davey is abrogated. And, combined with the quasi-overruling of Lemon, the government can no longer use the Establishment Clause as a prophylactic. The state will have to err on the side of allowing more religion into the public square to avoid violating speech and exercise rights.

Four years ago, the Court could not muster this sort of change in American Legion.  But Red Flag June has brought a revolution to Establishment Clause jurisprudence, in three cases that did not actually raise Establishment Clause claims.

In American Legion, Justice Gorsuch wrote a concurring opinion, joined by Justice Thomas. Gorsuch challenged the entire basis of Article III standing for Establishment Clause cases. In Gorsuch's view, merely taking "offense" at some public display of religion was insufficient to establish an Article III injury. (I too have long questioned standing in cases like Van Orden v. Perry.) Gorsuch wrote:

In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an "offended viewer" may "avert his eyes," Erznoznik v. Jacksonville (1975), or pursue a political solution. Today's decision represents a welcome step toward restoring this Court's recognition of these truths, and I respectfully concur in the judgment.

If this passage is correct, then why would someone suffering "offense" from a public display have a constitutional injury? Van Orden could have just have averted his eyes at the Ten Commandments display. (And don't get me started on Flast v. Cohen.)

At the time, Gorsuch's opinion garnered only two votes. Now, a majority of the Court implicitly endorsed Gorsuch's reasoning. Kennedy v. Bremerton includes this passage:

Naturally, Mr. Kennedy's proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is "part of learning how to live in a pluralistic society," a trait of character essential to "a tolerant citizenry." Lee. This Court has long recognized as well that "secondary school students are mature enough … to understand that a school does not endorse," let alone coerce them to participate in, "speech that it merely permits on a nondiscriminatory basis." Mergens. Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But "[o]ffense … does not equate to coercion." Town of Greece.

If offense is not sufficient to trigger coercion, then what is the basis for an Article III injury? Moreover, the Court has sent a clear message: unless there is direct coercion, get over prayer in public. The government's attempt to avoid a person from feeling "offense" is not sufficient to violate the coach's Free Exercise and Free Speech rights.

Justice Sotomayor's dissent contends that Gorsuch read Lee v. Weisman out of context:

Today's Court quotes the Lee Court's remark that enduring others' speech is "part of learning how to live in a pluralistic society.'" The Lee Court, however, expressly concluded, in the very same paragraph, that "[t]his argument cannot prevail" in the school-prayer context because the notion that being subject to a "brief " prayer in school is acceptable "overlooks a fundamental dynamic of the Constitution": its "specific prohibition on … state intervention in religious affairs." [FN7]

FN7: The Court further claims that Lee is distinguishable because it involved prayer at an event in which the school had 'in every practical sense compelled attendance and participation in [a] religious exercise." The Court in Lee, however, recognized expressly that attendance at the graduation ceremony was not mandatory and that students who attended only had to remain silent during and after the prayers.

And Sotomayor challenges the majority's claim that "direct coercion" is needed under the Court's precedents:

The Court claims that the District "never raised coercion concerns" simply because the District conceded that there was "'no evidence that students [were] directly coerced to pray with Kennedy.'"  The Court's suggestion that coercion must be "direc[t]" to be cognizable under the Establishment Clause is contrary to long-established precedent. The Court repeatedly has recognized that indirect coercion may raise serious establishment concerns, and that "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." Lee. Tellingly, none of this Court's major cases involving school prayer concerned school practices that required students to do any more than listen silently to prayers, and some did not even formally require students to listen, instead providing that attendance was not mandatory. Nevertheless, the Court concluded that the practices were coercive as a constitutional matter.

Once again in Red Flag June, the Court has shifted doctrine. Lemon is gone. Plus cases involving coercion like Lee and Santa Fe have also been abrogated. The amount of doctrinal shifts this Term will take some time to digest.

Shortly after Kennedy v. Bremerton School District was decided, I wrote that the Lemon test was finally interred. I observed that "Justice Gorsuch's majority opinion does not overrule Lemon in so many words, but the import of the ruling is clear--follow Town of Greece, not Lemon." Indeed, we do not get the magic words that we read in Dobbs:

Lemon was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. We hold that Lemon must be overruled.

Instead, Justice Gorsuch mustered this passage, which acted as if that Lemon was already overruled--or something like that.

What the District and the Ninth Circuit overlooked, however, is that the "shortcomings" associated with this "ambitiou[s]," abstract, and ahistorical approach to the Establishment Clause became so "apparent" that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion; see also Town of Greece v. Galloway (2014) . . . 

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by "'reference to historical practices and understandings.'" Town of Greece.

Not quite. Town of Greece did not overrule Lemon. And American Legion, which Justices Breyer and Kagan joined, did not formally overrule the precedent. Justice Sotomayor points out the obvious:

Despite all of this authority, the Court claims that it "long ago abandoned" both the "endorsement test" and this Court's decision in Lemon. The Court chiefly cites the plurality opinion in American Legion v. American Humanist Assn. (2019) to support this contention. That plurality opinion, to be sure, criticized Lemon's effort at establishing a "grand unified theory of the Establishment Clause" as poorly suited to the broad "array" of diverse establishment claims. All the Court in American Legion ultimately held, however, was that application of the Lemon test to "longstanding monuments, symbols, and practices" was ill-advised for reasons specific to those contexts. The only categorical rejection of Lemon in American Legion appeared in separate writings. See (KAVANAUGH, J., concurring); (THOMAS, J., concurring in judgment); (GORSUCH, J., concurring in judgment). [FN6] The Court now goes much further, overruling Lemon entirely and in all contexts. It is wrong to do so. . . .  It is true "that rigid application of the Lemon test does not solve every Establishment Clause problem," but that does not mean that the test has no value. American Legion (KAGAN, J., concurring in part).

Ditto for Shurtleff, which did not overrule Lemon:

FN6: The Court also cites Shurtleff v. Boston (2022), as evidence that the Lemon test has been rejected. Again, while separate writings in Shurtleff criticized Lemon, the Court did not. The opinion of the Court simply applied the longstanding rule that, when the government does not speak for itself, it cannot exclude speech based on the speech's "'religious viewpoint.'" Shurtleff. The Court further infers Lemon's implicit overruling from recent decisions that do not apply its test. As explained above, however, not applying a test in a given case is a different matter from overruling it entirely and, moreover, the Court has never before questioned the relevance of endorsement in the school-prayer context.

Lemon was never actually overruled. And I'm not exactly sure what "abandoned" even means in this context. Does this statement really count as a red flag? According to WestLaw, the "abrogation" of Lemon was recognized by Kennedy.

So why did the Court not formally overrule Lemon? For starters, Coach Kennedy never made such a request. Indeed, he couldn't have, as he did not bring claims under the Establishment Clause. Of course, the lower courts invoked Lemon to rule against Kennedy's Free Exercise and Free Speech claims, but the Establishment Clause was not at issue directly.

Still, going forward the lower courts have "instructions" from the Supreme Court.

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by "'reference to historical practices and understandings.'" Town of Greece.

Though, I'm sure some district court judge, somewhere will write, "Unless a majority of the Supreme Court formally overrules Lemon, I will continue to follow it." Old precedents die hard.

Speaking of "text and history," Justice Sotomayor included one of the first citations of Dobbs and Bruen in a judicial opinion.

The Court reserves any meaningful explanation of its history-and-tradition test for another day, content for now to disguise it as established law and move on. It should not escape notice, however, that the effects of the majority's new rule could be profound. The problems with elevating history and tradition over purpose and precedent are well documented. See Dobbs (BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting) (explaining that the Framers "defined rights in general terms to permit future evolution in their scope and meaning"); New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) (BREYER, J., dissenting) (explaining the pitfalls of a "near-exclusive reliance on history" and offering examples of when this Court has "misread" history in the past); Brown v. Davenport (2022) (KAGAN, J., dissenting) (noting the inaccuracies risked when courts "play amateur historian").

It is true that Lemon was not at issue in Carson. But the Court discussed it at some length. I will explain why in another post.

Trinity Lutheran v. Comer was decided in June 2017. At the time, Justice Kennedy was still the Court's swing vote, and Justice Gorsuch was the junior justice. And Roberts made a decision. He included Footnote 3 in his opinion:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

Footnote 3 crafted some sort of distinction between "religious identity" and "religious uses." That is, Trinity Lutheran only involved a case where the state excluded an institution because of its religious identity, or status. But the funding would buy tire scraps for a playground, which was not a religious use.

Justice Kennedy, as well as Justice Kagan joined Roberts's opinion, including Footnote 3. But Justices Gorsuch and Thomas refused to join Footnote 3, thus depriving the Court of a majority opinion on that point. Gorsuch wrote a concurrence that cast doubt on the dichotomy in Footnote 3:

Second and for similar reasons, I am unable to join the footnoted observation, n. 3, that "[t]his case involves express discrimination based on religious identity with respect to playground resurfacing." Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only "playground resurfacing" cases, or only those with some association with children's safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court's opinion.

Justice Sotomayor dissented in Trinity Lutheran, joined by Justice Ginsburg. She observed that the status/use line will not hold up:

In the end, the soundness of today's decision may matter less than what it might enable tomorrow. The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use. See ante, at 1–3 (GORSUCH, J., concurring in part); see also ante, at 1–2 (THOMAS, J., concurring in part) (going further and suggesting that lines drawn on the basis of religious status amount to per se unconstitutional discrimination on the basis of religious belief).

Five years later, with Carson v. Makin, Footnote 3 is gone. Since it was never actually the opinion of the Court, technically, there was no need to overrule any precedent. But Chief Justice Roberts's majority opinion stealthily eliminates the status/use distinction:

In Trinity Lutheran, the Missouri Constitution banned the use of public funds in aid of "any church, sect or denomination of religion." We noted that the case involved "express discrimination based on religious identity," which was sufficient unto the day in deciding it, and that our opinion did "not address religious uses of funding." . . . Maine's argument, however—along with the decision below and Justice Breyer's dissent—is premised on precisely such a distinction.

That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. "[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school." Our Lady of Guadalupe School v. Morrissey-Berru (2020).

Farewell to Footnote 3. Roberts does it so effortlessly. Blink and you'll miss it.

In the very next paragraph, Roberts endorses the reasoning from Gorsuch's concurrence--that the distinction between status and use was always illusory:

Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the "nonsectarian" requirement. That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well.In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.

Justice Sotomayor dissented in Carson. And she has a see-I-told-you-so moment:

As Justice Breyer explains, this status-use distinction readily distinguishes this case from Trinity Lutheran and Espinoza. I warned in Trinity Lutheran, however, that the Court's analysis could "be manipulated to call for a similar fate for lines drawn on the basis of religious use." That fear has come to fruition: The Court now holds for the first time that "any status-use distinction" is immaterial in both "theory" and "practice." It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.

And I have to think that Justice Kagan had some buyer's remorse. She joined the Trinity Lutheran majority, including Footnote 3, perhaps in the hopes of forestalling a bigger defeat. Five years later, we get Carson v. Makin.

So many precedents have been overruled this term that the demise of Footnote 3 has flown under the radar. Red Flag June was one for the ages.

On its face, Carson v. Maikin seems to be a resounding victory for religious liberty and school choice in Maine. The Supreme Court held that the state cannot exclude two Christian schools from a tuition payment program. Open up the coffers for Bangor Christian and Temple Academy? Not so fast.

Justice Breyer observed in his dissent that there may be another conflict between the state and the Christian schools.

Legislators also recognized that these private schools make religiously based enrollment and hiring decisions. Bangor Christian and Temple Academy, for example, have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians. Legislators did not want Maine taxpayers to pay for these religiously based practices—practices not universally endorsed by all citizens of the State—for fear that doing so would cause a significant number of Maine citizens discomfort or displeasure. The nonsectarian requirement helped avoid this conflict—the precise kind of social conflict that the Religion Clauses themselves sought to avoid.

Unsurprisingly, Maine found another way to avoid that "social conflict." Last year, the legislature revised the Maine Human Rights Act. Now, all private schools that choose to accept public funds must comply with the non-discrimination law. Specifically, the schools will be barred from discriminating on the basis of sexual orientation and gender identity. The legislature knew quite well that this change would force the two Christian schools to opt-out of any public financing.

Justice Breyer alluded to this fact in his dissent:

Nor do the schools want Maine in this role. Bangor Christian asserted that it would only consider accepting public funds if it "did not have to make any changes in how it operates." Temple Academy similarly stated that it would only accept state money if it had "in writing that the school would not have to alter its admissions standards, hiring standards, or curriculum." The nonsectarian requirement ensures that Maine is not pitted against private religious schools in these battles over curriculum or operations, thereby avoiding the social strife resulting from this state-versus-religion confrontation. By invalidating the nonsectarian requirement, the majority today subjects the State, the schools, and the people of Maine to social conflict of a kind that they, and the Religion Clauses, sought to prevent

Shortly after Carson was decided, the Maine Attorney General put out a press release citing this new legislation.

"I am terribly disappointed and disheartened by today's decision," said AG Frey.  "Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society.   The education provided by the schools at issue here is inimical to a public education.  They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff.  One school teaches children that the husband is to be the leader of the household.   While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.  I intend to explore with Governor Mills' administration and members of the Legislature statutory amendments to address the Court's decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry."

While the Court's decision paves the way for religious schools to apply to receive public funds, it is not clear whether any religious schools will do so.   Educational facilities that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.

In the New York Times, Aaron Tang observed that this statute provides a workaround to Carson.

"The legislative fix made by Maine lawmakers offers a model for lawmakers elsewhere who are alarmed by the court's aggressive swing to the right. Maine's example shows that those on the losing end of a case can often outmaneuver the court and avoid the consequences of a ruling."

And other states may follow suit.

Other states should follow Maine's lead. A handful of blue states — including Illinois, Maryland, Nevada and Vermont — provide vouchers or similar tax-credit scholarships to low-income students to enroll in private schools. None of them, however, enacted a statute prohibiting funds-receiving private schools from discriminating against L.G.B.T.Q. students. Legislation that would do so is pending in Maryland's legislature, the General Assembly. Lawmakers there should quickly enact it. Other states should also prohibit such discrimination.

There still may be more litigation:

Michael Bindas, senior attorney for the Institute for Justice, said the attorney general isn't paying close attention to the Supreme Court's commitment to religious liberty in recent years.

"It was an erroneous opinion of the Maine attorney general that embroiled the state in five lawsuits spanning three decades and that culminated in the Supreme Court's ruling against the state," Bindas said Thursday in a statement. "The current attorney general seems to not have learned any lessons from that experience."

If the state truly intends to use the state law to create another obstacle, then more litigation will be inevitable, said Carroll Conley, executive director of the Christian Civic League of Maine.

The effect of this ruling may be limited in the context of school tuition programs for Maine. But the elimination of the status/use distinction (which I will discuss in another post) was huge.

Earlier this evening, I shared a guest post from Professor Rob Leider, who explained that New Yorkers in rural areas may be worse off under the recently-enacted legislation. Here, I'd like to flag some changes made to the permitting process.

Let's start with the good news. New York struck the provision requiring "good cause." The rest of the statute is not-so-good news for gun owners.

First, the bill offers this definition of "good moral character"

good moral character, which, for the purposes of this article, shall mean having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.

"Good moral character" is defined as "essential character." That's super helpful. Neither Justice Thomas nor Justice Kavanaugh identified "moral character" as a permissible ground for a "shall-issue" jurisdiction. This standard may not be much different than the subjective "good cause" standard. And in some regards, "moral character" is worse, because it is subject to such vast discretion.

Second, the bill requires that applicants meet in person with the licensing office for an interview. And the applicant must provide a host of information to the government:

(i) names and contact information for the applicant's current spouse, or domestic partner, any other adults residing in the applicant's home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant's home;

(ii) names and contact information of no less than four character references who can attest to the applicant's good moral character and that such applicant has not engaged in any acts, or made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others;

Presumably, the references will have to sign a sworn affidavit to this effect.

(iii) certification of completion of the training required in subdivision nineteen of this section;

(iv) a list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicants character and conduct as required in subparagraph (ii) of this paragraph; and

(v) such other information required by the licensing officer that is reasonably necessary and related to the review of the licensing application.

To be clear, even if four character witnesses attest that the applicant has "good moral character," the government can use a person's social media account to "confirm" the person in fact does have "good moral character." I am fairly certain that social media, in general, brings out the absolute worst in a person. Plus, the government can request any other information that is "reasonably necessary and related" to the process, which means any information.  Here, there is such vast discretion for official to deny a person's applicant. Eugene already commented on the First Amendment implications of California scrutinizing ideological viewpoints. Here, New York is performing a similar role under the guise of "good moral character."

Third, there is extensive classroom training requirement (16 hours):

An applicant shall complete an in-person live firearms safety course conducted by a duly authorized instructor with curriculum approved by the division of criminal justice services and the superintendent of state police, and meeting the following requirements:

(a) a minimum of sixteen hours of in-person live curriculum approved by the division of criminal justice services and the superintendent of state police, conducted by a duly authorized instructor approved by the division of criminal justice services, and shall include but not be limited to the following topics:

(i) general firearm safety;

(ii) safe storage requirements and general secure storage best practices;

(iii) state and federal gun laws;

(iv) situational awareness;

(v) conflict de-escalation;

(vi) best practices when encountering law enforcement;

(vii) the statutorily defined sensitive places in subdivision two of section 265.01-e of this chapter and the restrictions on possession on restricted places under section 265.01-d of this chapter;

(viii) conflict management;

(ix) use of deadly force;

(x) suicide prevention; and

(xi) the basic principles of marksmanship;

Plus, the applicant will need two hours in a live-fire range. And the applicant must score 80% on a written exam:

(b) a minimum of two hours of a live-fire range training course. The applicant shall be required to demonstrate proficiency by scoring a minimum of eighty percent correct answers on a written test.

Fourth, the government will audit records every month to determine if there is some reason to revoke the permit:

All records containing granted license applications from all licensing authorities shall be [periodically] monthly checked by the division of criminal justice services in conjunction with the division of state police against criminal conviction, criminal indictment, mental health, extreme risk protection orders, orders of protection, and all other records as are necessary to determine their continued accuracy well as whether an individual is no longer a valid license holder.

And as I read the statute, the permit shall be revoked immediately if a problem is found.

Fifth, it is a felony to possess a gun in a "sensitive location." Where is a sensitive location? Just about anywhere, unless the place expressly welcomes guns. (Such a business would immediately be boycotted and cancelled in the Empire State.) I'll provide commentary along the way.

For the purposes of this section, a sensitive location shall mean:

(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;

(b) any location providing health, behavioral health, or chemical dependance care or services;

(c) any place of worship or religious observation;

Some houses of worship may wish parishioners to carry. But under the law, they cannot.

(d) libraries, public playgrounds, public parks, and zoos;

(e) the location of any program licensed, regulated, certified, funded, or approved by the office of children and family services that provides services to children, youth, or young adults…

(f) nursery schools, preschools, and summer camps;

(g) the location of any program licensed, regulated, certified, operated, or funded by the office for people with developmental disabilities;

(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;

(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;

(j) the location of any program licensed, regulated, certified, operated, or funded by the office of temporary and disability assistance;

(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;

(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;

(m) in or upon any building or grounds, owned or leased, of any educational institutions, colleges and universities, licensed private career schools, school districts, public schools, private schools licensed under article one hundred one of the education law, charter schools, non-public schools, board of cooperative educational services, special act schools, preschool special education programs, private residential or non-residential schools for the education of students with disabilities, and any state-operated or state-supported schools;

No carrying in any school. Anywhere. The hypothetical from Bruen comes to life. Is the "campus" of NYU--that is, much of Greenwich Village--a "ground" owned or leased by the institution?

(n) any place, conveyance, or vehicle used for public transportation or public transit, subway cars, train cars, buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in connection with service in the transportation of passengers, airports, train stations, subway and rail stations, and bus terminals;

All public transit is out. And streets with bus routes may also be out. Those are most streets in Manhattan.

(o) any establishment issued a license for on-premise consumption pursuant to article four, four-A, five, or six of the alcoholic beverage control law where alcohol is consumed and any establishment licensed under article four of the cannabis law for on-premise consumption;

(p) any place used for the performance, art entertainment, gaming, or sporting events such as theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;

Just about all indoor places of public gathering are out.

(q) any location being used as a polling place;

(r) any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;

Presumably, any street which is authorized for a parade, or other gathering, will not permit carry.

(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;

My goodness. This exception can swallow the entirety of New York state. Any place where two or more people gather to express their constitutional right becomes a "sensitive place."

(t) the area commonly known as Times Square, as such area is determined and identified by the city of New York; provided such area shall be clearly and conspicuously identified with signage.

And Times Square will become a 24/7 sensitive place. I'm sure New York City will stretch Times Square from Heralds Square to Central Park.

Sixth, a person has the burden to know he is in a sensitive location, even if there is no sign indicating that it is a sensitive location.

A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.

As if the categories above were not broad enough. Now, people have the extra obligation to know a place is "sensitive."

Seventh, you may think that it is safe to leave a gun in your car. Not exactly.

No person shall store or otherwise leave a rifle, shotgun, or firearm out of his or her immediate possession or control inside a vehicle without first removing the ammunition from and securely locking such rifle, shotgun, or firearm in an appropriate safe storage depository out of sight from outside of the vehicle.

The glove box will not suffice. You must use a "safe storage depository" with a key, keypad, or some other locking mechanism. Yes, to keep the gun in your car, you must unload it, and lock it. Then put it in a safe. And you have to keep the gun out of sight. Retrieving the gun in a timely fashion from your car is now extremely difficult.

Eighth, licenses are only valid for three years. Applicants will be required to jump through all of these hoops on a regular basis.

Ninth, there is now a database to record the sale of ammunition! As I read the statute, in order to purchase ammunition, a person will have to go through the national instant criminal background check system. Every trip to the range will now require a background check.

If I made any errors with this statute, please email me. I'm happy to post corrections.