Eugene Volokh's Blog, page 2558
May 8, 2012
IG Inspector Claims White House Obstructed Gulf Drilling Moratorium Report
The New Orleans Times Picayune reports the White House denied the Department of Interior’s Office of Inspector General access to e-mails and communications about White House revisions to a report Interior Secretary Ken Salazar relied upon to justify a moratorium in oil drilling in the Gulf of Mexico. The story begins:
A senior federal investigator says he was denied access to a White House official and full email records as he tried to determine whether a BP oil spill report was intentionally edited to erroneously suggest outside experts supported the Obama administration’s deepwater drilling moratorium. The experts, in fact, did not endorse the moratorium the administration ordered after the 2010 spill. The White House and Department of Interior later said the mistake was inadvertent, a result of an early-morning edit that moved some material from the body of the report to the executive summary.
Although some e-mails were provided eventually, the IG’s office was never able to validate their authenticity or completeness, the investigator claims. He also alleges the White House did not allow the IG to interview a White House official involved in editing the report. An official in the IG’s office told the Times Picayune that his office “does not have authority to compel” White House cooperation with its investigation.
Court Won’t Enforce Trust Provision Calling for Appointment of Three Orthodox Jews to Arbitrate a Dispute
From In the Matter of Ismailoff, 2007 WL 7670254 (N.Y. Sur. Ct. Feb. 1) (payment required for access), which was just posted on Westlaw in the last day or two:
This is a proceeding commenced by the grantor of an inter vivos trust for a determination that the trust is the product of undue influence.
Esther Ismailoff (grantor) executed an agreement with her four children (trustees) creating an irrevocable inter vivos trust….
Article XXIV of the agreement provides:
In the event that any dispute or question arises with respect to this Declaration of Trust, such dispute or question shall be submitted to arbitration before a panel consisting of three persons of the Orthodox Jewish faith, which will enforce the provisions of this Declaration of Trust and give any party the rights he is entitled to under New York law. This Declaration of Trust shall be construed in order to effectuate the intent of the parties and the parties admit that they have performed all the necessary requirements for this Declaration to be valid under Jewish law. The panel will have the authority to file their decision with the Court under the New York Arbitration Law. The parties have made a Kinyan Siddur with a garment that may be used for that purpose in order to effectuate this Declaration of Trust.
… The grantor argues that the parties intended to empanel a “Beth Din” (rabbinical court). However, the agreement specifically provides for enforcement of the rights of the parties under New York law. In addition, in the absence of any reference in the agreement to a “Beth Din,” the First Amendment to the United States Constitution prohibits the appointment of a religious tribunal ( Sieger v Sieger, 297 AD2d 33 [2d Dept 2002]).
The agreement provides for the selection of “three persons of the Orthodox Jewish faith.” The most common method of selecting a tripartite panel is for each contending party to select one arbitrator and for the two arbitrators to select a third. Written submissions of the parties suggest that the criteria applied to determine whether a proposed arbitrator is “orthodox” would be in dispute. That issue could never be resolved by the court.
The Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice (Presbyterian Church v Hull Church, 393 U.S. 440 [1969]; Kelly v Garuda, _____ AD3d _____ [2d Dept 2007]; 2007 WL [60334]; Sieger v Sieger, 297 AD2d 33 [2d Dept 2002])…. Although the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.
The court then provided for appointment of arbitrators in the normal way that arbitrators are appointed (each side selects one arbitrator and the two arbitrators select a third). This strikes me as quite right, because secular courts are not allowed to examine would-be arbitrators’ supposed religious bona fides, and decide who really is Orthodox enough. On the other hand, if the trust had called for the appointment of arbitrators by some named organization, such as the Beth Din of America, the court likely would have enforced that provision, even if the organization only appointed orthodox Jews — the court then wouldn’t have had to decide who’s Orthodox enough, but could have enforced the terms of the trust without any religious decisions on the court’s own part.
For an earlier case in which a similar issue might have arisen, but didn’t have to be decided, see In re Aramco Servs., where the contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations that apparently call for the arbitrators to be Muslims or Saudi citizens.
Generic Iconoclasm vs. Some Sensible Things You Were Taught in School
Forbes runs this item:
Nine Dangerous Things You Were Taught In School
Be aware of the insidious and unspoken lessons you learned as a child. To thrive in the world outside the classroom, you’re going to have to unlearn them.
Dangerous things you were taught in school:
1. The people in charge have all the answers. That’s why they are so wealthy and happy and healthy and powerful — ask any teacher.
2. Learning ends when you leave the classroom. Your fort building, trail forging, frog catching, friend making, game playing, and drawing won’t earn you any extra credit. Just watch TV.
3. The best and brightest follow the rules. You will be rewarded for your subordination, just not as much as your superiors, who, of course, have their own rules.
4. What the books say is always true. Now go read your creationism chapter. There will be a test.
5. There is a very clear, single path to success. It’s called college. Everyone can join the top 1% if they do well enough in school and ignore the basic math problem inherent in that idea.
6. Behaving yourself is as important as getting good marks. Whistle-blowing, questioning the status quo, and thinking your own thoughts are no-nos. Be quiet and get back on the assembly line.
7. Standardized tests measure your value. By value, I’m talking about future earning potential, not anything else that might have other kinds of value.
8. Days off are always more fun than sitting in the classroom. You are trained from a young age to base your life around dribbles of allocated vacation. Be grateful for them.
9. The purpose of your education is your future career. And so you will be taught to be a good worker. You have to teach yourself how to be something more.
I’ve always been quite skeptical of this sort of generic iconoclasm, for three related reasons: (1) It debunks categorical assertions that the debunkees actually rarely make in that categorical a way, and that in case are obviously wrong if made so categorically. (2) This debunking is rarely useful, because just as “always” assertions are rarely right where practical matters are involved, “not always” assertions are rarely useful. (3) The things being debunked are actually often pretty good rules of thumb for daily life, which are right more often than not; friendly amendments pointing out the exceptions can be helpful (especially if they are specific rather than generic), but categorical attempts at debunking miss the general wisdom in the rules.
For instance, behaving yourself is often more important than getting good marks. Sometimes even knowing when to question the status quo and when to follow it is important, as is knowing when to at least temporarily follow conventional wisdom (especially in an environment where error can cause a lot of damage) instead of coming up with your own approaches. But beyond that, “behaving yourself” in the sense of learning how to operate productively within an organization of two or more people, in a way that maximizes results while minimizing needless friction with your colleagues, superiors, and subordinates, and needless pushback from people who see you as misbehaving is a tremendously important life skill in a vast range of occupations. Even geniuses need it, and ordinary people who will have to work closely with others and will rarely have the “he’s rude and a pain in the neck, but he’s brilliant” excuse need it even more.
As to the purpose of education, schools rarely teach that the only purpose of your education is your future career (especially since many literature and history teachers realize that such an argument will go only so far with their students). But throughout your life you’ll want access to goods and services, and unless you try to force people to give them to you, you’ll need to offer something in return; in our society, many of the things you offer require specialized knowledge, which a good education will help give you. And while college is certainly not a very clear, single path to success, and it won’t get you to “the top 1%,” for many people it’s a pretty important part of the path to careers that are both more financially and intellectually rewarding.
Likewise, the best and brightest follow the rules the great majority of the time, and we take it for granted because it’s “just following the rules.” They follow rules about how to do good science, how to write well, how to craft effective arguments, how to operate within organizations, how to deal with other people’s understandings of what is their property or institutional bailiwick, and so on. Of course, they realize that to succeed in really big and innovative ways they need to do more than follow the rules. “Always follow the rules, and nothing more” would be lousy advice. But “learn the rules well, because they are the repository of important wisdom accumulated through the efforts of many smart people, and then think creatively about how to go beyond the rules or even break some rules” is good advice.
What’s true of the rules is also true of the books and of the messages passed along by people in authority. What the books say isn’t always true, but they have a lot of truth in them, and 99% of what we need to know we learn from the books (especially if we learn how to find the right books). Similarly, the people in charge often have some pretty important answers — again, answers that are so important and foundational that we take them for granted (once we learned them from people in charge).
That’s true of specific knowledge about particular academic subject matters; teachers are hardly perfect, but they know some important information that most students need to learn to succeed. It’s also true of “answers” in the sense of character traits that are conducive to success: Answers to questions such as, “Should I work hard?,” “Should I invest for the future?,” “Should I work well with others?,” and so on; and these answers do tend to make people more “wealthy and happy and healthy and powerful,” though of course they are not perfectly correlated with success.
Finally, while learning doesn’t end when you leave the classroom, standardized tests don’t measure your entire value, and days off aren’t always more fun than sitting in the classroom, few schools seek to try to teach that, and my sense is that few students actually learn this. Rather, classroom learning — if done right — is an important part of your learning, being able to demonstrate your abilities even in the imperfect way that tests capture is important in a society where employers and universities have to sort through thousands of applications, and classroom learning even at a good institution can involve kinds of work that aren’t as fun as what you can do on your own but are still important.
So if the Forbes column is merely saying “remember that the practical rules for life that you’re taught in school are true only most of the time, and always think about whether some occasion is an exception to the rule,” then it’s correct but banal to the point of uselessness. And if it’s trying to say that those rules really are things that you have to outright “unlearn,” to the point of actually rejecting them much of the time, then it seems to me to be generally wrong.
Seventh Circuit: Ban on Audio Recording of Police Officers Likely Unconstitutional
From ACLU v. Alvarez (7th Cir. May 8, 2012) (Judge Sykes joined by Judge Hamilton, with Judge Posner dissenting):
We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.
The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the re cording is open or surreptitious.
Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.
I’m just beginning to read the opinions, but I wanted to flag the key holding. [UPDATE: Sorry, meant to also say that this decision reaches pretty much the same result as Glik v. Cunliffe (1st Cir. 2011), which I blogged about last year.]
UPDATE: A few follow-up thoughts:
1. The opinion specifically sets aside the question whether state law could (1) ban surreptitious interception even of public communications, and (2) ban surreptitious interception of communications that the parties would reasonably expect to remain private. (“[T]his case has nothing to do with private conversations or surreptitious interceptions.” “We are not suggesting that the First Amendment protects only open recording. The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”). For an example of a state high court decision that affirmed a citizen’s conviction for surreptitiously recording his encounter with the police, see Commonwealth v. Hyde (Mass. 2001), though the court did not discuss the First Amendment.
But I think the Seventh Circuit’s reasoning should apply to a person’s surreptitious recording of his interactions with the police in the course of their jobs, and not just to open recordings. Among other things, even content-neutral restrictions are immune from strict scrutiny only if they are narrowly tailored to an important government interest and leave open adequate alternative channels for speech (or, here, for gathering the information needed to speak). The Seventh Circuit didn’t decide whether this adequate alternative channels requirement was satisfied here (because it found the law to be overinclusive with respect to any privacy interests that might justify a narrower law), and wasn’t certain that the factor applies to information gathering restrictions, though I think it should so apply given that information gathering restrictions may burden the ability to speak much like direct speech restrictions would. Yet it did suggest that bans on recording information don’t leave open adequate alternative channels:
We note, however, that audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.
And this is also true of surreptitious recording, since often surreptitious recording will yield more accurate information about how police officers actually behave in ordinary interactions with citizens (as opposed to how they behave when they know that their statements could be heard that day on the evening news).
Some Baffling Copyright Law
The Supreme Court has granted cert in Kirtsaeng v John Wiley, another of the series of rather baffling cases involving interpretation of the scope of copyright’s “importation right.” It’s a rather wonderful example of how baroque the structure of copyright law has become, as well as the ways in which interpretation of some very arcane and obscure statutory formulations can have rather significant effects on the conduct of those subject to the law.
The statutory provisions at issue are these: First, sec 602(a) of the Copyright Act says that:
Importation into the United States, without the authority of the owner of copyright under this title, of copies . . . of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies [of the work] [subject to certain exceptions not relevant here].
So if you buy 1000 copies of a copyright-protected work in Singapore and attempt to bring them into the United States, even if those copies are being sold with the authority of the copyright holder, you need an additional authorization from the copyright holder for the importation; without that authorization, you will be violating the copyright holder’s exclusive right to distribute copies of the work.
So far so good. There is, however, a well-established defense to a claim of unauthorized distribution: the so-called “first sale doctrine.” The first sale doctrine says that “notwithstanding the [copyright holder's exclusive distribution right,] the owner of a particular copy . . . lawfully made under this title, . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” That would seem to mean that if those 1000 copies were “lawfully made” under the Copyright Act, I can’t be liable for violating the copyright owner’s distribution rights when I bring them into the US.
It’s a bit of a conundrum. Several years ago the Court resolved part of it: In Quality King v. L’Anza, the Court said: the first sale defense is available against a claim of unlawful importation, at least if the copies that were involved were made in the US (and therefore “lawfully made under this title”). Justice Ginsburg, concurring, noted that a different result might be warranted if the copies themselves were made overseas — in that case, it’s not so clear that they’re being made “lawfully under this title” (because it’s not so clear that the Copyright Act has extraterritorial effect, and therefore one could argue that a copy actually made in Singapore was not lawfully made “under this title”), and if they’re not “lawfully made under this title” the first sale defense would not apply to them.
Life, of course, imitates concurring opinions, and soon after the Quality King case was handed down the 9th Circuit decided a case presenting these other facts — Omega v. Costco, where the copyrighted works (the Omega logo imprinted on each of their watches) were made overseas, purchased from an authorized overseas distributor, and then imported into the US by Costco. [The economics of this should be clear: Costco can buy Omega watches in the Philippines, perfectly lawfully, at a price that is low enough that even with the additional costs of transporting them into the US, they can be sold at a price cheaper than authorized US Omega distributors charge for the same watches]. The 9th Circuit took Ginsburg’s suggestion, and held that the Omega watches, because they had been manufactured overseas, were not lawfully made under the Copyright Act, and therefore the first sale doctrine would not protect Costco’s sales. The Supreme Court heard that case, and split 4-4 (Justice Kagan recusing herself).
Now, in Wiley, the issue returns to the Court; the 2d Circuit followed the 9th Circuit lead, and the Court took the opportunity to take on the issue once again – this time, hopefully, with an odd number of Justices . . .
It’s one of the gnarliest statutory issues around – take a look at the opinion in the link in the first paragraph if you are interested. When I teach these cases in my Copyright class, students generally emerge from the discussion dazed and confused, further demonstration that our Copyright Act is becoming more like the Tax Code every day. But there’s a lot riding on the outcome. Suppose you are, say, a book publisher (or a watch manufacturer, or anyone who sells items with some copyrighted material on or in them). You want to price discriminate in the global marketplace – you know that you can sell your items at a higher price in the US than in Turkey, or in Argentina. You want to maintain the ability to discriminate, and you are careful when you parcel out geographic territories to your distributors. You don’t want to see the Costco’s of the world undercutting your carefully wrought scheme, through the use of this “gray market” overseas.
The competing interpretations have significant implications for your ability to keep the scheme intact. Under the Omega v Costco/Wiley rule, you can prevent the importation of your items, but only if you manufacture them abroad. Under the opposite view, the copyright holder gets one bite at the apple, worldwide: once you obtain compensation for the “first sale” of the copy, wherever you started and wherever the sale takes place, you can no longer control its distribution.
There are not many examples in copyright law where the two big copyright circuits (the 2d and the 9th) agree but the Supremes go in a different direction – but I hope this becomes one of them. For complicated reasons, I think that the 2d and 9th Circuits’ reading is incorrect, on purely textual grounds. But putting that aside, I think the opposing view (the the first sale doctrine applies regardless of where an item is manufactured) is surely preferable as a matter of policy. The Omega/Wiley rule is a substantial incentive to outsource manufacturing activities overseas — which is a most peculiar policy for the US to have (and to hide away in the Copyright Act, of all places).
[Update - some factual errors about the decisions in the cases mentioned have been corrected in the above - thanks to Steven Horowitz for alerting me to the problems]
Rehabilitating Lochner Paperback and Kindle Price Drop
Rehabilitating Lochner is now available for pre-order at Amazon for $15.30–quite a discount relative to the $37.00 the hardcover is going for (Cato sells it for $10 less). Amazon has meanwhile reduced the price of the Kindle edition to $15.07.
Interested readers can check out a recent LibertyLaw blog symposium on the book, with reviews by professors Keith Whittington, George Thomas, and Ted McAllister.
Assessing Gary Johnson
Conor Friedersdorf compares former New Mexico Governor Gary Johnson with prior Libertarian Party candidates for President. His post concludes:
A former governor of New Mexico, he was re-elected by that state’s voters, left office popular after two terms, and therefore has the most executive experience of any Libertarian Party presidential nominee. He can also cite the state he ran as evidence that nothing radical happens when he’s put in charge. An economic conservative and social liberal, he represents a new direction for a party that has long wrestled with its paleo-libertarian wing. And yet he too is certain to lose on Election Day, as third-party candidates in American presidential elections do. The question is whether he can match his party’s 1980 high-water mark and win 1 percent or more of the vote, and whether he might win even more in the key swing state of New Mexico, where voters already know and have cast ballots for him.
May 7, 2012
Constitutional Separation of Powers vs. Parliamentary Government
In this interesting recent op ed in Canada’s National Post , my George Mason colleague Frank Buckley argues that parliamentary systems of government are less likely to become dysfunctional than separation of powers systems such as that of the United States:
Before Standard and Poor’s downgraded U.S. public debt, Barack Obama mused that the American system of separation of powers might not be all that it is cracked up to be. It results in gridlock, and had raised the specter that Congress would fail to raise the debt ceiling. “We did not have a AAA political system to match our AAA credit rating,” Obama noted….
By contrast, the Canadian system of government has never seemed more attractive, if one judges these things by their results. Notwithstanding its generous social-welfare safety net, Canada is ranked as economically more free than the United States by the conservatives at the Heritage Foundation in Washington, which puts Canada in sixth, and the U.S. in 10th place, in the group’s most recent international survey. On per capita government spending, the two countries are tied, and on corporate taxes Canada is way ahead. On public debt levels, it’s no contest….
Getting legislation passed or repealed in America is like waiting for three cherries to line up in a Las Vegas slot machine. Absent a supermajority in Congress to override a presidential veto, one needs the simultaneous concurrence of the president, Senate and House.
In a parliamentary system, however, one needs only one cherry. In Canada, neither the governor-general nor the senate has a veto power. All that matters is the House of Commons, dominated by the prime minister’s party.
An American separation of powers might nevertheless be thought better able to screen off bad laws, which might more easily be enacted in a parliamentary regime. The flip side is that bad laws, once enacted, can more easily be reversed when a government doesn’t face the gridlock of the separation of powers.
So which is more valuable: Pre-enactment screening or ex post reversibility? I’d suggest the latter, for one important kind of legislation: “Experience laws,” whose effects cannot be judged without the benefit of hindsight. Then, reversibility trumps ex ante screening — not that there’s much of the latter in Washington. And when you get down to it, just about all laws are experience laws.
Frank makes a good case. But I remain unpersuaded. It is indeed true that Canada’s government has performed better than the United States over the last decade, which has enabled Canada to (slightly) surpass the US on the Heritage Foundation’s measure of economic freedom in recent years, and to establish a much better fiscal position. On the other hand, that same Heritage rating had the US ahead of Canada for many years before the late 2000s (as was also true in the rival Cato/Fraser Institute index). During much of that period, Canada also had much worse fiscal problems, higher taxes, and higher per capita government spending than the United States. And obviously the US had a separation of powers system and Canada a parliamentary system in those days too.
The recent reversal is a result of Canada’s impressive economic reforms since 1996 and the massive growth of American government under George W. Bush and Barack Obama. That growth did not occur because of “gridlock,” but because Congress and the president successfully enacted major new laws greatly increasing spending and regulation. It would be dangerous to generalize from this relatively brief period, or even from the US and Canadian experience as a whole. Studies that compare the records of many countries, such as Persson and Tabellini’s Economic Effects of Constitutions show that, controlling for other variables, presidential separation of powers systems have smaller public sectors than parliamentary systems.
Frank’s argument that post-enactment reversal is more valuable than preenactment screening in preventing bad laws overlooks the problem of institutionalization. Once a bad law is enacted, interest group pressures and inertia often make it difficult to repeal – even in a parliamentary system. Moreover, widespread political ignorance ensures that voters often don’t even realize that a law is having bad effects or even that it exists at all. That is one of the reasons why so many European governments are experiencing severe fiscal crises caused by overspending – despite the fact that nearly all of them have parliamentary governments. Even if most “bad” laws are “experience laws,” it is also true that many such laws have been tried elsewhere previously. Opponents can rely on that experience without having to first try out the bad law themselves.
Frank also contends that parliamentary systems will distribute government spending more equitably than separation of powers systems:
A party leader who seeks support across the country must have the interest of the country as a whole in mind. If he concentrates government spending in one region only, he will lose support in other regions. That’s why strong a prime minister and a Parliament of nobodies better serves the country than the separation of powers and earmark-seeking Congressmen, like the late John Murtha of Pennsylvania (of the John Murtha Airport, John Murtha Center, etc.).
Porkbarrel spending for local projects is a genuine problem in the US. But the same is true in many parliamentary systems. In the latter, parties often include narrow interest groups who get compensated for their support with government spending grants. It’s far from clear that the problem of fiscal favoritism for narrow interest groups or particular regions is less severe under a parliamentary system than in the US. Western Canadians have long complained about the concentration of federal grants in Quebec and the Atlantic provinces.
This is not to suggest that the US system is ideal or that all other nations should copy it. There are a variety of reasons why a nation might prefer a parliamentary system to presidentialism. For example, a powerful presidency that concentrates executive authority in one person’s hands might be a bad idea for a nation with deep ethnic divisions or one with a long tradition of authoritarianism. Obviously, people who want high levels of government spending and regulation also have good reason to prefer parliamentary systems – a point made by many American liberals going back to Woodrow Wilson in the late 19th century. However, the available evidence suggests that separation of powers is an important constraint on the growth of government and that parliamentary systems are not, on average, better at preventing fiscal crises.
Orders Banning Speech That “Ha[s] a Substantial Adverse Effect … on the … Privacy of Another”
Minnesota law defines “harassment” to include,
repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.
If someone complains about “harassment,” a court can issue an order banning such “harassment,” and violation of the order will then be a crime. Given this, what are you free to say about other people in Minnesota, assuming you want to say it several times, and they’re willing to go to court to stop you?
Say that you have been (accurately) telling your and your ex’s acquaintances that your ex cheated on you, or infected you with a sexually transmitted disease — is that a “repeated incident[] of intrusive or wanted … words … that ha[s] a substantial adverse effect on the [ex's] privacy”? What if you tell people that someone holds some publicly condemned religious or political beliefs that he has tried hard to conceal? The list could go on.
Note that there’s nothing in the statute that purports to limit this to speech that is a tortious disclosure of private facts, though that tort is itself constitutionally questionable, both on overbreadth grounds and vagueness grounds (given the lack of clear definition of the “newsworthiness” exception to the tort, an exception that does not appear in the statute).
Tenth Circuit Upholds Ban on Gun Possession by Illegal Aliens
From United States v. Huitron-Guizar (10th Cir. May 7, 2012) (thanks to Prof. Doug Berman (Sentencing Law & Policy) for the pointer):
We applied “intermediate” scrutiny in Reese, 627 F.3d at 802, which involved a Second Amendment challenge by a citizen to 18 U.S.C. § 922(g)(8), the provision forbidding firearms to those subject to a domestic-protection order. If we assume that an illegal alien like Mr. Huitron-Guizar, who has been here for decades and nowhere else, is entitled to the lawful exercise of this enumerated right, and if we observe that the law here not only burdens but eliminates the right by placing, on a class of perhaps millions, a total prohibition upon possessing any type of gun for any reason, “intermediate” scrutiny would seem to apply. Id., at 800 (comparing burdens imposed by the various § 922 restrictions). Under this standard a law is sustained if the government shows that it is “substantially related” to an “important” official end. Id. at 802.
The “principal purposes” of the Gun Control Act of 1968 are to “make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, and to assist law enforcement authorities in the States and their subdivisions in combating the increasing prevalence of crime.” S.Rep. No. 90-1501, at 22 (1968). The alien-inpossession ban was incorporated from a predecessor statute by the 1986 Firearm Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449, likewise with purpose of keeping instruments of deadly force away from those deemed irresponsible or dangerous. S.Rep. No. 98-583, at 12 (1986).
Congress may have concluded that illegal aliens, already in probable present violation of the law, simply do not receive the full panoply of constitutional rights enjoyed by law-abiding citizens. Or that such individuals, largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them. It is surely a generalization to suggest, as courts do, see, e.g., United States v. Orellana, 405 F.3d 360, 368 (5th Cir. 2005), that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities. The class of convicted felons, too, includes non-violent offenders. See McCane, 573 F.3d at 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (suggesting that Heller’s “dictum” should not foreclose challenges to the felon-dispossession law in § 922(g)(1)). The law applies with equal force to those who entered yesterday and those who, like Mr. Huitron-Guizar, were carried across the border as a toddler. The bottom line is that crime control and public safety are indisputably “important” interests.
If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should all aliens who are not lawfully resident be left to the mercies of burglars and assailants? That must be at least one reason behind the wave of challenges to § 922(g)(5). But courts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.
Here’s the Tenth Circuit’s reasoning in Reese explaining why intermediate scrutiny was the proper test:
The initial question we must address is whether intermediate scrutiny is also appropriate for the statute challenged by Reese. To be sure, § 922(g)(8) is arguably more restrictive than § 922(k), the statute at issue in Marzzarella, in that it prohibits the possession of all types of firearms. On the other hand, however, § 922(g)(8) is less restrictive than § 922(k) in that it applies only to a narrow class of persons, rather than to the public at large. And, in that regard, § 922(g)(8) is substantially similar to § 922(g)(9), the statute at issue in Skoien. Specifically, both statutes prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence. Based upon these characteristics, we conclude that § 922(g)(8), like the statutes at issue in Marzzarella and Skoien, is subject to intermediate scrutiny.
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