Eugene Volokh's Blog, page 2602
March 5, 2012
Catholic Bishops Continue Protesting HHS Mandates
Last Friday, a letter was sent by from Archbishop Timothy Cardinal Dolan, President, United States Conference of Catholic Bishops. What follows are some excerpts. (You can read a pdf of the entire letter here.)
My brother bishops,
. . . Thank you, brothers, for the opportunity to provide this update to you and the dioceses you serve. Many of you have expressed your thanks for what we have achieved together in so few weeks, especially the data provided and the leadership given by brother bishops, our conference staff and Catholic faithful. And you now ask the obvious question, "What's next?" Please allow me to share with you now some thoughts about events and efforts to date and where we might go next.
Since January 20, when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. . . . As pastors and shepherds, each of us would prefer to spend our energy engaged in and promoting the works of mercy to which the Church is dedicated: healing the sick, teaching our youth, and helping the poor. Yet, precisely because we are pastors and shepherds, we recognize that each of the ministries entrusted to us by Jesus is now in jeopardy due to this bureaucratic intrusion into the internal life of the church. You and I both know well that we were doing those extensive and noble works rather well without these radical new constrictive and forbidding mandates. Our Church has a long tradition of effective partnership with government and the wider community in the service of the sick, our children, our elders, and the poor at home and abroad, and we sure hope to continue it.
Of course, we maintained from the start that this is not a "Catholic" fight alone. I like to quote as often as possible a nurse who emailed me, "I'm not so much mad about all this as a Catholic, but as an American." And as we recall, a Baptist minister, Governor Mike Huckabee, observed, "In this matter, we're all Catholics." No doubt you have heard numerous statements just like these. We are grateful to know so many of our fellow Americans, especially our friends in the ecumenical and interreligious dialogue, stand together in this important moment in our country. They know that this is not just about sterilization, abortifacients, and chemical contraception. It's about religious freedom, the sacred right of any Church to define its own teaching and ministry.
When the President announced on January 20th that the choking mandates from HHS would remain, not only we bishops and our Catholic faithful, but people of every faith, or none at all, rallied in protest. The worry that we had expressed — that such government control was contrary to our deepest political values — was eloquently articulated by constitutional scholars and leaders of every creed.
On February 10th, the President announced that the insurance providers would have to pay the bill, instead of the Church's schools, hospitals, clinics, or vast network of charitable outreach having to do so. He considered this "concession" adequate. Did this help? We wondered if it would, and you will recall that the Conference announced at first that, while withholding final judgment, we would certainly give the President's proposal close scrutiny.
Well, we did — and as you know, we are as worried as ever. For one, there was not even a nod to the deeper concerns about trespassing upon religious freedom, or of modifying the HHS' attempt to define the how and who of our ministry. Two, since a big part of our ministries are "self-insured," we still ask how this protects us. We'll still have to pay and, in addition to that, we'll still have to maintain in our policies practices which our Church has consistently taught are grave wrongs in which we cannot participate. And what about forcing individual believers to pay for what violates their religious freedom and conscience? We can't abandon the hard working person of faith who has a right to religious freedom. And three, there was still no resolution about the handcuffs placed upon renowned Catholic charitable agencies, both national and international, and their exclusion from contracts just because they will not refer victims of human trafficking, immigrants and refugees, and the hungry of the world, for abortions, sterilization, or contraception. In many ways, the announcement of February 10 solved little and complicated a lot. We now have more questions than answers, more confusion than clarity.
So the important question arises: What to do now? How can we bishops best respond, especially united in our common pastoral ministry as an Episcopal Conference? For one, . . . we will continue our strong efforts of advocacy and education. In the coming weeks the Conference will continue to provide you, among other things, with catechetical resources on the significance of religious freedom to the Church and the Church's teaching on it from a doctrinal and moral perspective. We are developing liturgical aids to encourage prayer in our efforts and plans on how we can continue to voice our public and strong opposition to this infringement on our freedom. And the Ad Hoc Committee on Religious Liberty, that has served the Conference so well in its short lifespan, will continue its extraordinary work in service to this important cause.
Two, we will ardently continue to seek a rescinding of the suffocating mandates that require us to violate our moral convictions, or at least insist upon a much wider latitude to the exemptions so that churches can be free of the new, rigidly narrow definition of church, minister and ministry that would prevent us from helping those in need, educating children and healing the sick, no matter their religion.
In this regard, the President invited us to "work out the wrinkles." We have accepted that invitation. Unfortunately, this seems to be stalled: the White House Press Secretary, for instance, informed the nation that the mandates are a fait accompli(and, embarrassingly for him, commented that we bishops have always opposed Health Care anyway, a charge that is scurrilous and insulting, not to mention flat out wrong. Bishop Blaire did a fine job of setting the record straight.) The White House already notified Congress that the dreaded mandates are now published in the Federal Registry "without change." The Secretary of HHS is widely quoted as saying, "Religious insurance companies don't really design the plans they sell based on their own religious tenets." That doesn't bode well for their getting a truly acceptable "accommodation."
At a recent meeting between staff of the bishops' conference and the White House staff, our staff members asked directly whether the broader concerns of religious freedom—that is, revisiting the straight-jacketing mandates, or broadening the maligned exemption—are all off the table. They were informed that they are. So much for "working out the wrinkles." Instead, they advised the bishops' conference that we should listen to the "enlightened" voices of accommodation, such as the recent, hardly surprising yet terribly unfortunate editorial in America. The White House seems to think we bishops simply do not know or understand Catholic teaching and so, taking a cue from its own definition of religious freedom, now has nominated its own handpicked official Catholic teachers.
We will continue to accept invitations to meet with and to voice our concerns to anyone of any party, for this is hardly partisan, who is willing to correct the infringements on religious freedom that we are now under. But as we do so, we cannot rely on off the record promises of fixes without deadlines and without assurances of proposals that will concretely address the concerns in a manner that does not conflict with our principles and teaching.
Congress might provide more hope, since thoughtful elected officials have proposed legislation to protect what should be so obvious: religious freedom. Meanwhile, in our recentdebate in the senate, our opponents sought to obscure what is really a religious freedom issue by maintaining that abortion inducing drugs and the like are a "woman's health issue." We will not let this deception stand. Our commitment to seeking legislative remedies remains strong. And it is about remedies to the assault on religious freedom. Period. (By the way, the Church hardly needs to be lectured about health care for women. Thanks mostly to our Sisters, the Church is the largest private provider of health care for women and their babies in the country.) Bishop William Lori, Chairman of our Ad Hoc Committee on Religious Liberty, stated it well in a recent press release: "We will build on this base of support as we pursue legislation in the House of Representatives, urge the Administration to change its course on this issue, and explore our legal rights under the Constitution and the Religious Freedom Restoration Act."
Perhaps the courts offer the most light. In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House. Thus, our bishops' conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days, you will hear much more about this encouraging and welcome development.
Given this climate, we have to prepare for tough times. Some, like America magazine, want us to cave-in and stop fighting, saying this is simply a policy issue; some want us to close everything down rather than comply (In an excellent article, Cardinal Francis George wrote that the administration apparently wants us to "give up for Lent" our schools, hospitals, and charitable ministries); some, like Bishop Robert Lynch wisely noted, wonder whether we might have to engage in civil disobedience and risk steep fines; some worry that we'll have to face a decision between two ethically repugnant choices: subsidizing immoral services or no longer offering insurance coverage, a road none of us wants to travel.
Brothers, we know so very well that religious freedom is our heritage, our legacy and our firm belief, both as loyal Catholics and Americans. There have been many threats to religious freedom over the decades and years, but these often came from without. This one sadly comes from within. As our ancestors did with previous threats, we will tirelessly defend the timeless and enduring truth of religious freedom.
I look forward to our upcoming Administrative Board Meeting and our June Plenary Assembly when we will have the chance to discuss together these important issues and our way forward in addressing them. And I renew my thanks to you for your tremendous, fraternal support and your welcome observations in this critical effort to protect our religious freedom.
With prayerful best wishes, I am
Fraternally in Christ,
Timothy Cardinal Dolan
Archbishop of New York
President, United States Conference of Catholic Bishops
Postal Workers Refusing to Deliver Religious Material They Disagree With
YNet News reports:
Dozens of Israel Postal Company employees in Ramat Gan refused to distribute thousands of copies of the New Testament to city residents. They claimed such distribution is forbidden according to [Jewish religious law], and might even be illegal [under Israeli law]….
[O]ne religious mailman explained that distributing the New Testament goes against his word view. "The halacha forbids me from handing out such idolatry material, and when there's a contradiction between my religious belief and what my job requires of me, it's clear to me what I chose," he said. "It's like if my manager were to come and tell me to work on Shabbat."
According to him this is not the first time the mailmen have refused to distribute the booklets. He said his Gadera counterparts were successful in dodging such distribution ….
The Israel Postal Company (a branch of the Israeli government) is refusing the demand, to its credit. Among other things, the objecting employees' claims that distributing proselytizing material violates Israeli law seems to be mistaken, at least according to the postal service and to the United States State Department (search for "proselytizing"). Nonetheless, at least one member of the Knesset (Orlev) is quoted as saying, "It's unacceptable that the Israel Postal Company should participate in distributing missionary materials to the Jewish residents of Israel. We must clarify to the missionaries that the law forbids it." If this were the law — or if there are proposals to change the law — that would, I think, be a bad law indeed, one that interferes with freedom of speech and religious freedom.
I should note that, if there were a way to easily accommodate the religious employees' objections while still getting the mail delivered, and at no material cost to the post office, that would be good. American employment law generally requires such reasonable accommodations that don't unduly burden employers; perhaps Israeli law does as well. (See this footnote for some cases in which this law was used to excuse people from generally applicable job requirements.) But my suspicion is that this would be very hard to do with postal employees, who have their own routes; filling in the gaps caused by many employees' refusal to deliver particular items would be quite burdensome on the employer. In any event, the postal service's job should be to deliver mailed material, whether or not that requires some route juggling, and that includes material that Member Orlev and various post office employees don't approve of.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
Federal District Court Recognizes Right to Carry Gun Outside the Home, Holds Unconstitutional Maryland's Restrictive Carry Licensing Scheme
Maryland law provides that people may not carry a gun (concealed or otherwise) outside the home without a license, and the license is to be given only when the applicant has "good and substantial" reason to carry a gun. Such reasons, according to Maryland authorities, can be: "(1) business activities that involve heightened risk, such as the need to carry cash or other 'street valued' commodities, (2) participation in 'regulated professions,' such as security guards or armored car personnel, (3) participation in 'assumed risk' professions that involve the ability to restrict or take away civil liberties, such as judges, prosecutors, police officers, public defenders, and correctional officers," and (4) "personal protection" when the applicant can show "some sort of objectively heightened threat, above and beyond the 'personal anxiety' or 'apprehension of an average person.'" (Carrying an "an unloaded handgun" is also allowed "to and from places where it may legally be possessed without a permit, such as the owner's home, a repair shop, a target range, or a gun show.")
Woollard v. Sheridan (D. Md. Mar. 2, 2012) holds that this unconstitutionally restricts the rights of law-abiding people who want to carry for personal protection based precisely on the "apprehension of an average person," with no "objectively heightened threat." The court follows Fourth Circuit precedent (United States v. Masciandaro) in holding that restrictions on gun possession outside the home are subject to "intermediate scrutiny," i.e., must be (in the district court's words) "reasonably adapted to a substantial governmental interest." But these terms are notoriously vague — what's significant is the meaning the court gives them in this context:
The Maryland statute's failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end [of public safety]. The requirement that a permit applicant demonstrate "good and substantial reason" to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States' laws do, limit the carrying of handguns to persons deemed "suitable" by denying a permit to anyone "whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun."
Rather, the regulation at issue is a rationing system. It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate "good reason" beyond a general desire for self-defense….
A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered "reasonably adapted" to a government interest, no matter how substantial that interest may be. Maryland's goal of "minimizing the proliferation of handguns among those who do not have a demonstrated need for them" is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.
I think this result is correct — as I read Heller, it recognize a right to keep and bear arms for purpose of self-defense, and self-defense is needed wherever a person happens to be, not just in the home. (See pp. 1516-1524 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.) Heller does approve of some historically recognized limitations on the right, such as bans on concealed carry or bans on carrying into particular "sensitive places." But I think the logic and language of Heller suggests that the right does extend to other sorts of carrying outside the home. And while I think that talk of "intermediate scrutiny" isn't very helpful here, the district court's analysis in applying intermediate scrutiny seems to me to be quite right.
This having been said, most recent court decisions that have squarely considered the matter have upheld broad restrictions on carrying, though some — like the Fourth Circuit — have suggested that such restrictions' constitutionality remains unsettled, and a Puerto Rico appellate decision reached the same result that this Maryland federal court decision did. Indeed, Maryland's highest court has upheld the Maryland statute, concluding that gun possession outside the home is outside the Second Amendment; it's possible to read that decision more narrowly as simply upholding the permitting requirement but leaving open the question whether permits must be granted to pretty much all law-abiding applicants, but I think the logic of the Maryland high court opinion is broader than that, and would lead to the rejection of the very claim that the federal district court accepted in this case.
So it will be interesting to see what the Fourth Circuit does with this on appeal. And if the Fourth Circuit agrees with the district court, that will likely be seen as creating a split between the Fourth Circuit and Maryland's highest court — plus state courts in some other states — which would mean there would be a substantial chance that the Supreme Court will agree to hear the case. (If the Fourth Circuit reverses the district court, and rejects the Second Amendment claim, then the Supreme Court will be quite unlikely to grant review.)
UPDATE: Whoops — David Kopel beat me to this.
Also, I forgot to note that, while most of the post-Heller cases that have considered whether the Second Amendment secures a right to keep and bear arms outside the home — cases from generally not very gun-friendly states, such as California, Illinois, Maryland, and Massachusetts — have rejected such a right to carry, most of the pre-Heller cases asking the same question about state constitutional rights to keep and bear arms have recognized a right to carry.
For cases or attorney general opinions holding or suggesting that there is a right to carry openly, see State v. Reid, 1 Ala. 612, 619 (1840) (dictum), reaffirmed, Hyde v. City of Birmingham, 392 So. 2d 1226, 1228 (Ala. Crim. App. 1980); Dano v. Collins, 802 P.2d 1021 (Ariz. Ct. App. 1990), review granted but later dismissed as improvidently granted, 809 P.2d 960 (Ariz. 1991); Nunn v. State, 1 Ga. 243 (1846), reaffirmed, Strickland v. State, 72 S.E. 260, 264 (Ga. 1911); In re Brickey, 70 P. 609 (Idaho 1902); Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956) (dictum); State v. Chaisson, 457 So. 2d 1257 (La. Ct. App. 1984); City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971); State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Nieto, 130 N.E. 663, 664 (Ohio 1920) (dictum), reaffirmed, Klein v. Leis, 795 N.E.2d 633, 638 (Ohio 2003); Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988); La. Op. Att'y Gen. No. 80- 992 (1990); Wisconsin Department of Justice Advisory Memorandum (Apr. 20, 2009), http://www.doj.state.wi.us/news/files....
For cases holding the right extends even to carrying a concealed weapon, though perhaps regulated through a nondiscretionary licensing regime, see Kellogg v. City of Gary, 562 N.E.2d 685, 705 (Ind. 1990); Schubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), abrogated as to concealed carry but not as to open carry by Ky. Const. of 1850, art. XIII, § 25; State v. Rosenthal, 55 A. 610, 610–11 (Vt. 1903); State v. Vegas, Case No. 07 CM 687 (Cir. Ct. Milwaukee County Sept. 24, 2007), available at http://www.law.ucla.edu/volokh/vegas.pdf (concluding that under State v. Hamdan, 665 N.W.2d 785 (Wis. 2003), the right to bear arms may include the right to concealed carry in some narrow circumstances, especially where the person is engaging in dangerous activity such as delivering pizzas in high-crime areas).
Oregon courts take the view that the right extends to carrying weapons openly, but allows restrictions on carrying loaded guns, so long as the law allows the carrying of both an unloaded gun and ammunition. See State v. Delgado, 692 P.2d 610, 614 (Or. 1984) (striking down total ban on carrying switchblade knives); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (per curiam) (striking down a total ban on carrying blackjacks); State v. Boyce, 658 P.2d 577, 578–79 (Or. Ct. App. 1983) (upholding a requirement that handguns be carried unloaded). The Louisiana Chaisson decision struck down a very limited carrying ban — one that applied only while hunting frogs at night — but its reasoning suggested that there was a constitutional right to carry for self-defense (including self-defense against alligators). 457 So. 2d at 1259; see also State v. Chandler, 5 La. Ann. 489, 490 (1850) (taking this view with regard to the Second Amendment). City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972), also struck down a carry ban because it was broad enough to ban gun stores, ban people "from transporting guns to and from such places of business," and ban people from "possess[ing] a firearm in a vehicle or in a place of business for the purpose of self-defense"; the court concluded that "[s]everal of these activities are constitutionally protected," which suggests that carrying in a car might have been protected. Id. This is consistent with the Colorado right to bear arms' express exclusion of "the practice of carrying concealed weapons," Colo. Const. art. II, § 13, which suggests that carrying weapons unconcealed would be presumptively protected.
All these cases speak of carrying in most public places; they often leave room for restrictions on carrying in particular places, such as businesses that serve liquor, churches, or polling places.
For some state courts' decisions that a state constitutional right to keep and bear arms does not extend outside the home, see City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo. Ct. App. 1994); Pierce v. State, 275 P. 393 (Okla. Crim. App. 1929); i, 272 A.2d 275, 278–79 (Pa. Super. Ct. 1970), vacated, 292 A.2d 410 (Pa. 1972); Masters v. State, 685 S.W.2d 654 (Tex. Crim. App. 1985) (per curiam). But see Cockrum v. State, 24 Tex. 394, 401–02 (1859) (taking the view that the right to bear arms includes the right to carry them); Galloway v. State, 69 S.W.2d 89, 90 (Tex. Crim. App. 1933) (per curiam) (likewise).
Right to carry victory in Colorado: Students for Concealed Carry on Campus v. Regents
Colorado's 2003 Concealed Carry Act provides that licenses issued pursuant to the CCA shall be valid "in all areas of the state, except as specifically limited" by other portions of the CCA (such as the rule that CCA licensees can have a gun in the car when they are on K-12 school property, but may not carry the gun outside the car). Nevertheless, the University of Colorado refused to allow licensed carry on the university's campuses, and maintained its policy of automatic expulsion or firing for any student or faculty member who violated the policy. CU likewise insisted on its right to forbid automobile carry by licensees whose east-west travel in Boulder took them through Colorado Avenue, a street which passes through the CU campus, but which is used by many persons who never stop at CU.
In a case brought by Mountain States Legal Foundation attorney Jim Manley, the district court dismissed the plaintiffs' claims. The Court of Appeals reversed, and the Colorado Supreme Court granted certiorari.
Today, the Colorado Supreme Court, in a unanimous decision written by Justice Allison Eid, affirmed the Court of Appeals. The Court held that the CCA entirely preempts the University of Colorado's power to prohibit licensed carry. The Court rejected CU's theory that because the University is created by the State Constitution, the Concealed Carry Act could only apply to the University if the statute expressly mentioned CU.
Because the case could be fully decided on statutory grounds, the Court declined to address constitutional issues involving the right of self-defense (Colo. Const., art. II, sect. 3) and the right to arms (art. II, sect. 13).
The case was remanded to the district court for further proceedings.
Since the 2003 CCA, non-interference with licensed carry has been the practices at the campuses of Colorado State University (whose main campus is in Fort Collins). Since the April 2010 decision of the Court of Appeals, all other public colleges and universities in Colorado (except for CU) have acquiesced to licensed carry. Today's decision removes the last hold-out, the last of the Colorado public institutions of higher education which was attempting to maintain a policy of segregation against people who exercised their civil rights.
I first met Jim Manley when he was President of the CU Federalist Society, and he invited me to campus to speak on the day of the SCCC "empty holster" protest against CU's civil rights ban. As a MSLF, he has played a leading role in many important cases, but it is an especially impressive accomplishment for a young attorney from a small public interest law firm to win a unanimous state Supreme Court victory against an institution whose largest campus (Boulder) has an annual budget of over a billion dollars.
My amicus brief on behalf of the County Sheriffs of Colorado is here. The Supreme Court decision is here. [Link fixed.]
Right to carry victory in Maryland: Woollard v. Sheridan
Earlier today, Maryland federal district Benson Everett Legg decided the case of Woollard v. Sheridan. Plaintiffs on the case are Robert Woollard and the Second Amendment Foundation. The lead attorney for plaintiffs is Alan Gura, the winning attorney in D.C. v. Heller and McDonald v. Chicago.
As explained in the district court's Dec. 2010 ruling, rejecting a motion to dismiss:
Plaintiff Woollard initially obtained a handgun carry permit after he was assaulted by an intruder in his home in 2002. The permit was renewed in 2005. At that time, the intruder had recently been released from prison, providing a "good and substantial reason" for Woollard to carry a firearm. In 2009, Woollard again sought to renew his permit so that he could carry a handgun for self defense. MSP Secretary Sheridan denied Woollard's application, however, because Woollard failed to provide sufficient evidence "to support apprehended fear."
At issue in the case is the Maryland statute which says that the Secretary of the State Police can issue a carry permit if the applicant "has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger." Md.Code Ann., Pub. Safety § 5-306(a)(5)(ii).
In today's decision on the merits, the "good and substantial reason" requirement was ruled to violate the Second Amendment. The court held that the Second Amendment right is not limited to self-defense in the home. It also includes the militia and hunting. None of the Second Amendment rights can logically be confined solely to the home: "In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment's protections must extend beyond the home: neither hunting nor militia training is a household activity, and 'self-defense has to take place wherever [a] person happens to be'."
The internal quotation, by the way, is from Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). Based on judicial citations, the Volokh article appears to be by far the most influential post-Heller article on the Second Amendment.
The Maryland carry license law was not "narrowly tailored," says the Woollard opinion. Moreover, "A citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights." Rather, "The right's existence is all the reason he needs."
The case is headed to the Fourth Circuit, which has a mixed record on Second Amendment issues. From there, Woollard could be the case in which the Supreme Court chooses to tell recalcitrant lower federal courts that Heller and McDonald really do mean what they say: that the Second Amendment includes the right to carry, albeit not in "sensitive places," and the government may, if it wishes, require that carry be open rather than concealed.
The SAF press release is here, and a terse AP story is here. Congratulations to Alan Gura and to SAF President Alan Gottlieb!
Judge Turns Away Challenge to Recess Appointees on NLRB
Last Friday, a federal judge turned away a challenge to President Obama's recess appointment of three members to the National Labor Relations Board. As Lyle Denniston reports on SCOTUSBlog, Judge Amy Berman Jackson refused to consider the claim in the context of a challenge to a recent NLRB rule requiring employers to provide certain information to employees. "Several plaintiffs have attempted to shoehorn a challenge to the President's recent recess appointments into a pending APA case about the validity of a rule issued by the National Labor Relations Board," Judge Jackson wrote in her opinion. "But the rule was promulgated by a quorum of undisputedly duly authorized members well before the recess appointments were announced, and it is set to go into effect automatically on April 30, 2012." As a consequence, she explained the court "declines this invitation to take up a political dispute that is not before it." The industry groups fared somewhat better in their challenge to the substance of the new NLRB rule.
Defending Equilibrium Adjustment
As a follow-up to my recent article, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011), the editors of the Harvard Law Review published a short response to the article by Professor Christopher Slobogin, An Original Take on Originalism, 125 Harv. L. Rev. F. 14 (2011). Professor Slobogin contends that equilibrium-adjustment is just originalism, and therefore has all of the problems that Professor Slobogin identifies with originalism.
The Forum editors offered to publish my reply, and I have just posted this 8-page essay, Defending Equilibrium Adjustment, 125 Harv. L. Rev. F. (forthcoming 2012). From the introduction:
Equilibrium adjustment is not originalism. Equilibrium adjustment is a theory of maintaining the status quo balance of power, not restoring the rules of the eighteenth century. That explains why living constitutionalists and pragmatists alike have embraced equilibrium adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Professor Slobogin says, that the theory "harks back to some earlier time." But that does not make it originalist. The relevant "earlier time" is a time before the technological development, not specifically the year the Fourth Amendment was ratified.
In short, Slobogin's critique misses the mark by aiming at the wrong target. His response critiques originalism but not equilibrium adjustment. I will develop my reply in three parts. First, I will show how the theory of equilibrium adjustment differs from originalism. Second, I will use the Supreme Court's recent decision in United States v. Jones to show how equilibrium adjustment coexists in both originalist and non-originalist forms. Finally, I will address Professor Slobogin's criticism that the theory of equilibrium adjustment does not necessarily answer which way the Supreme Court should rule in difficult cases. I concede the point, but challenge the assumption that a theory of Fourth Amendment law should provide such answers.
Koch v. Cato – Monday Morning Roundup
The Koch brothers lawsuit to take control of the Cato Institute has continued to receive commentary, and has even inspired a Facebook page. Over the weekend, I posted a statement from Jerry Taylor of the Cato Institute. I will present the the Kochs' perspective if and when I get a statement or am able to speak with a Koch representative on the record. In the meantime, here's some of what's out there.
The Washington Post reported on the Cato Institute's "unusual structure," as it is not common for non-profits to have shareholders, something Matt Yglesias also discussed here. Relatedly, Frank Pasquale points to this paper on takeovers of non-profit organizations.
GMU's Don Boudreaux discusses the relationship between ideas and advocacy, noting he believes the Kochs are "most imprudently and unwisely threatening the long-term health of the liberty movement." Economist Arnold Kling believes less is at stake. Cato's Jason Kuznicki is quite upset with the Kochs' actions. Jordan Bloom's not happy, but notes the irony of these events so close to Murray Rothbard's birthday.
Gene Healy, who was publicly toasting Charles Koch last fall, has written an open letter to Koch program alumni. Jacob Grier also has a comment worth quoting:
In the past I've defended the Koch brothers from charges that their political activities are motivated by narrow self-interest. Funding scholarships for libertarian college students or sending them to week-long academic seminars are hardly profit-maximizing uses of their money. Though they are famously secretive, the only sensible interpretation of their actions over the past few decades is that they sincerely believe in broadly libertarian ideas and want to see them succeed in the long-run. Their investment in think tanks, journalism, and other non-profits are groping attempts to discover how best to bring that about.
However this takeover attempt seems in no way compatible with the greater good of libertarian ideas. Whatever the legal merits of the Kochs' claim, the best outcome for the cause of individual liberty is that Cato continues to operate as an independent, non-partisan, respected think tank with a diversity of funders. There is currently no other libertarian organization fulfilling that role in such a high-profile way. In acquiring the asset the Kochs would inevitably decrease its value. This view is, from what I can tell, widely shared among libertarians who have posted about the matter. Perhaps there is something we don't know, but given how many people involved in institutional libertarianism have benefited at least indirectly from the Kochs' donations, that dissent should be telling.
I'm left wondering about the internal institutions surrounding the Koch brothers. They are known for their advocacy of Market-Based Management, but do they receive enough criticism within their non-profit work from the bottom-up? Having become accustomed to holding the purse strings, are they open to negative feedback? Do they have advisers who have the security to be able to tell them to back off? If personal animosity is blinding them to the greater good of the causes they've spent decades supporting, is there anyone to tell them that?
Skip Oliva rounds up still more stuff here.
ADDED THOUGHT: I've seen lots of libertarian-types come out against the Kochs' efforts, but hardly any in support. Even those who have received Koch money and would hope to again are saying this a bad move. Even more are saying this in private. That should say something.
MORE: A longer story from Weigel.
MORE: Erick Erickson blames Ed Crane.
March 4, 2012
The New Yorker on Dale Carpenter's New Book
Congratulations to co-blogger Dale Carpenter for the excellent review by Dahlia Lithwick of his new book, Flagrant Conduct: The Story of Lawrence v. Texas, in the latest issue of The New Yorker.
Are Historical Cell-Site Data Protected Under the Fourth Amendment After United States v. Jones?
No, concludes Judge Bennett in United States v. Graham (District of Maryland, March 1, 2012). Judge Bennett concludes that historical cell-site records are not protected because they fall under the third-party doctrine:
Like the bank records at issue in [United States v.] Miller, the historical cell site location records in this case are not the 'private papers' of the Defendants—instead, they are the 'business records' of the cellular providers. Federal law does not mandate that cellular providers create or maintain this type of data,11 and even courts that have concluded that government acquisition of cumulative cell site location records can violate the Fourth Amendment generally acknowledge that these records are 'generated in the ordinary course of the provider's business.' In re Application of the United States, 747 F. Supp. 2d 827, 841 (S.D. Tex. 2010) (Smith, Mag. J.), appeal docketed, No. 11-20554 (5th Cir. Dec. 14, 2011). Moreover, insofar as historical cell site records are created and maintained by the cellular providers, individual customers do not generally have access to those records, and could not be expected to produce them in response to a subpoena. Under the reasoning of Miller, therefore, historical cell site location records are the provider's business records, and are not protected by the Fourth Amendment.
. . .
Based on clear Supreme Court and Fourth Circuit precedent, this Court finds the third-party doctrine applicable to historical cell site location information. Like the bank records at issue in Miller, the telephone numbers dialed in Smith, and the subscriber information collected in Bynum, historical cell site location records are records created and kept by third parties that are voluntarily conveyed to those third parties by their customers. As part of the ordinary course of business, cellular phone companies collect information that identifies the cellular towers through which a person's calls are routed.
Judge Bennett also includes an extensive analysis of the concurring opinions in Jones that appear to embrace what I have called a "mosaic theory" of the Fourth Amendment. He concludes that he cannot embrace a mosaic theory in this case, however, because the theory is so different from what has come before that it should be construed narrowly until the circuit courts or Supreme Court indicate to the contrary:
[I]t appears as though a five justice majority is willing to accept the principle that government surveillance over time can implicate an individual's reasonable expectation of privacy. However, as will be discussed below, the factual differences between the GPS technology considered in the Jones case and the historical cell site location data in the present case lead this Court to proceed with caution in extrapolating too far from the Supreme Court's varied opinions in Jones. Until the Supreme Court or the United States Court of Appeals for the Fourth Circuit definitively conclude that an aggregation of surveillance records infringes a Fourth Amendment legitimate expectation of privacy, this Court must apply the facts of this case to the law as currently interpreted.
Judge Bennett ultimately concludes that the established caselaw on the third-party doctrine trumps the mosaic theory, at least for now: "unless and until the Supreme Court affirmatively revisits the third-party doctrine, the law is that a 'person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.' Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (citing, e.g., United States v. Miller, 425 U.S. 435, 443 (1976))."
This strikes me as a pretty sensible resolution of the issue given the current state of the caselaw. Note that Judge Bennett suggests that there may be a constitutional difference between collecting prospective and historical cell-site information, so the decision is relatively narrow. Also note that the issue in Graham arises in a motion to suppress filed in a criminal case, so the case does not raise the ripeness concerns I have addressed in my amicus brief in the Fifth Circuit case that otherwise raises similar issues.
Thanks to reader Michael Wein for the pointer.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
