Eugene Volokh's Blog, page 299

[Josh Blackman] New in the American Spectator: The 11th Circuit Should Reject Jack Smith's Past Political Justifications to Expedite His Latest Appeal

["The Court of Appeals for the Eleventh Circuit has no reason to accommodate politically motivated efforts to convict Trump before the election or inauguration."]

Seth Barrett Tillman and I published a new essay in the American Spectator concerning Special Counsel Jack Smith's pending appeal to the Eleventh Circuit. We write that Smith's only justification to expedite the appeal is to obtain a conviction before the election, or even before the inauguration. The courts are under no obligation to accommodate Smith's politically motivated efforts.

Here is the introduction:

Special Counsel Jack Smith is on a mission to convict Donald Trump before the election, and if needed, before the inauguration. At every level of the judiciary, Smith has urged federal judges to move at breakneck speed so he can get his man. Now that Judge Aileen Cannon has determined that Smith was unlawfully appointed, Smith is once again racing for another appeal. But there is no good reason for the courts to move more quickly than they usually would. Indeed, moving any faster or slower than normal would suggest that the judges are favoring one side or the other.

Despite all the faux outrage over Judge Cannon's decision, she disqualified only one person from pursuing this case: Jack Smith. Cannon did not grant Trump any immunity for his actions during or after he left office. The United States attorney for the southern district of Florida is fully capable of prosecuting Trump. To be sure, Attorney General Merrick Garland does not want his Justice Department to take the heat for prosecuting his boss's political rival, but that is a political problem for Garland and the administration and not a legal problem for the judiciary. The Court of Appeals for the Eleventh Circuit has no reason to accommodate politically motivated efforts to convict Trump before the election or inauguration. Trump should be treated like any other defendant.

And from the conclusion:

Smith seems to have determined that it is in the best interest of our democracy for voters to know whether Trump is convicted of a federal felony before voting. This is an extremely difficult political judgment that turns on disputed conceptions of what the public ought to know for the sake of democracy. Moreover, seeking to time a trial and conviction in this manner would mark a public and complete break with DOJ principles and policies of prosecutorial neutrality. It is imperative that the case against Trump be tried in the ordinary course of law, in the ordinary way, under an ordinary schedule. This case cannot be tried using newly invented legal rules, by a faux prosecutor, under an expedited schedule serving nakedly political (if not partisan) ends. Then-Attorney General Robert H. Jackson wisely observed that "the most dangerous power of the prosecutor" is "that he will pick people that he thinks he should get, rather than cases that need to be prosecuted." Only by adhering to this course of conduct does the judiciary uphold the rule of law.

I will report back when Smith files a motion to expedite the appeal to the Eleventh Circuit, or whether he seeks certiorari before judgment.

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[Eugene Volokh] Is a Parking Structure a Building, When It Comes to Ban on Gun Possession "in Any Publicly Owned Building"?

From a South Carolina Attorney General July 9 opinion:

We received your letter requesting an Attorney General's opinion regarding whether section 16-23-420 of the South Carolina Code prohibits a person from carrying a firearm in a publicly owned parking lot or publicly owned parking garage….

Section 16-23-420 provides in relevant part:

… It is unlawful for a person to possess a firearm of any kind on any premises or property owned, operated, or controlled by a private or public school, college, university, technical college, other post-secondary institution, or in any publicly owned building, without the express permission of the authorities in charge of the premises or property. The provisions of this subsection related to any premises or property owned, operated, or controlled by a private or public school, college, university, technical college, or other post-secondary institution, do not apply to when the firearm remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle…..

The opinion concluded (relying on a past opinion that) "any premises or property owned, operated, or controlled by" modifies only "school, college, …," and not "publicly owned building"; because of that, the statute doesn't limit firearm possession in non-school/college buildings' "surrounding premises." It then went on to conclude that parking garages shouldn't count as "building[s]" for purposes of the statute:

Black's Law Dictionary defines a building as "[a] structure with walls and a roof, esp. a permanent structure." We believe it is plain a parking lot would not be considered a building in accordance with its usual and customary meaning….

As to whether a parking garage qualifies as a building as used in section 16-23-420(A), we believe this is a closer question. Black's Law Dictionary does not define the term "parking garage"; however, Merriam-Webster English Dictionary defines a parking garage as "a building in which people usually pay to park their cars, trucks, etc." Despite this definition's use of the word building, we nevertheless believe a court would likely find a parking garage would not be considered a building under this statute because to hold otherwise would lead to a result clearly unintended by the General Assembly.

Like a parking lot, a parking garage's primary purpose is to provide parking for vehicles. To interpret the plain language of the statute as encompassing parking garages in the term building while excluding parking lots would result in an inconsistent application of the firearm prohibition in publicly owned buildings.

Moreover, section 16-23-20(D) of the South Carolina Code expressly grants a person legally possessing a firearm to store it anywhere in a vehicle, whether occupied or unoccupied. Construing this statute together with the firearm prohibition in publicly owned buildings, we believe a court would hold these two statutes can be read harmoniously by finding the term building does not encompass parking garages. Based on the foregoing, we believe a court would likely find the prohibition of firearms in publicly owned buildings under section 16-23-420(A) does not encompass publicly owned parking garages….

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[Eugene Volokh] The Latest in the Prosecution of eBay Managers for Cyberstalking Online Critics

From the Justice Department's Thursday press release:

The former Senior Manager of Special Operations for eBay's Global Security Team was sentenced today in federal court in Boston for his role in a cyberstalking campaign targeting a Massachusetts couple. The defendant and his co-conspirators harassed and intimidated the victims in retaliation for their publication of an industry newsletter that eBay executives viewed as critical of the company.

Brian Gilbert, 56, of San Jose, Calif., was sentenced by U.S. Senior District Court Judge William G. Young to time served, one year of supervised release with the special condition that he have no contact with either of the victims in the case and a $20,000 fine. In October 2020, Gilbert pleaded guilty to conspiracy to commit cyberstalking and conspiracy to tamper with witnesses.

Gilbert is one of seven now-former eBay employees and contractors on the company's security team who were charged and ultimately convicted for their roles in the cyberstalking campaign:

Jim Baugh, eBay's former Senior Director of Safety and Security, was sentenced to 57 months in prison in September 2022; David Harville, former Director of Global Resiliency, was sentenced to 24 months in prison in September 2022; Stephanie Popp, former Senior Manager of Global Intelligence, was sentenced to 12 months in prison in October 2022; Philip Cooke, a former Senior Manager of Security Operations, was sentenced to 18 months in prison and 12 months of home confinement in July 2021; Stephanie Stockwell, a former Manager of Global Intelligence, was sentenced to one year in home confinement in October 2022; and Veronica Zea, a contract intelligence analyst, was sentenced to one year in home confinement in November 2022.

"Today's sentencing brings an end to our prosecution of eBay's horrific conduct. The company's culture resulted in seven eBay employees and contractors inflicting an unspeakable campaign of harassment and intimidation against the victims in this case, all to silence their reporting and protect the eBay brand," said Acting United States Attorney Joshua S. Levy. "We left no stone unturned to hold accountable every individual who engaged in criminal conduct, including the ringleader, who was sentenced to 57 months in federal prison. We also charged eBay criminally and required it to pay $3 million–the maximum fine allowed by law. The charges against eBay will only be dismissed if eBay commits no crimes over the next three years and satisfies both my office and an independent monitor that compliance with the law is paramount, starting with the C-Suite all the way down to the newest hire. This series of prosecutions should ensure that every eBay employee understands that the idea of terrorizing innocent people and obstructing investigations will never again be tolerated."

"No sentence can ever make up for the devastating and irreversible impact Brian Gilbert's actions had on the victims in this case. As a former law enforcement officer, Mr. Gilbert should have stepped in and stopped this unprecedented, relentless, and over-the-top harassment campaign that he and others at eBay orchestrated to try and protect their company's reputation," said Jodi Cohen, Special Agent in Charge of the Federal Bureau of Investigation Boston Division. "Anyone who thinks they can terrorize innocent people, obstruct investigations, and get away with it can expect to be brought to justice to face similar consequences."

In August 2019, the defendants executed a three-part harassment campaign against the Natick, Mass. couple. Among other things, several of the defendants ordered anonymous and disturbing deliveries to the victims' home, including a preserved fetal pig, a bloody pig Halloween mask and a book on surviving the loss of a spouse.

As part of the second phase of the campaign, some of the defendants sent private Twitter messages and public tweets criticizing the newsletter's content and threatening to visit the victims in Natick. Gilbert, Cooke, Baugh and Popp planned for these messages to become increasingly disturbing, culminating with "doxing" the victims (i.e., publishing their home address). The same group intended then to have Gilbert, a former Santa Clara police captain, approach the victims with an offer to help stop the harassment that the defendants were secretly causing, in an effort to promote good will towards eBay.

The third phase of the campaign involved surveilling the victims in their home and community. The victims spotted the surveillance, however, and notified the Natick Police, who began to investigate.

Aware that the police were investigating, the defendants sought to interfere with the investigation. For example, several of the defendants discussed the possibility of presenting Natick Police with a false investigative lead to keep the police from discovering video evidence that could link some of the deliveries to eBay employees. As the police and eBay's lawyers continued to investigate, the defendants deleted digital evidence that showed their involvement, further obstructing what had by then become a federal investigation.

In January 2024, eBay was charged criminally with two counts of stalking through interstate travel, two counts of stalking through electronic communications services, one count of witness tampering and one count of obstruction of justice. eBay entered into a deferred prosecution agreement and admitted to a detailed recitation of all the relevant facts about its conduct and agreed to pay a criminal penalty of $3 million, which is the statutory maximum fine for these six felony offenses. As part of this resolution, eBay was required to retain an independent corporate compliance monitor for a period of three years and to make extensive enhancements to its compliance program….

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[Ilya Somin] Biden's Withdrawal From the Presidential Race Is Not Anti-Democratic

[Among other reasons, it's actually supported by a large majority of voters, including most Democrats.]

(NA)

There's plenty of room for disagreement over whether President Biden's decision to withdraw from the presidential race is a good development, or not. But one common trope that deserves to be rejected is the idea that his withdrawal somehow undermines democracy. This argument was first deployed by die-hard Biden backers, but has more recently been taken up by Republicans. For example, GOP House Speaker Mike Johnson complains that "[h]aving invalidated the votes of more than 14 million Americans who selected Joe Biden to be the Democrat nominee for president, the self-proclaimed 'party of democracy' has proven exactly the opposite."

I am skeptical that Johnson and other GOP leaders actually care much about the will of Democratic voters. If they did, they would not have supported Trump's efforts to overturn the 2020 election (which, if it had succeeded, would have been a genuine massive affront to democracy). But even aside from the glaring hypocrisy, the argument has little merit.

Start with the obvious point that democracy does not require Biden or any other candidate to stay in the race if he or she concludes he wants to get out—even if the motive for dropping out is that the candidate believes there is no longer much chance of winning. Similarly, democracy doesn't preclude politicians, activists, and other elites from urging a candidate to leave the race, or even from threatening to withdraw their support if the candidate refuses to listen. All of this is itself a part of the democratic process. Subject to a few legal constraints, voters and elites can choose to give or withdraw their support, as they choose. And they can urge a candidate to drop out, if they want to.

If democracy is about following the will of the majority of voters, than Biden's withdrawal clearly qualifies. Survey data indicates a large majority of Americans, including some 65% of Democrats, wanted Biden to drop out, so the Democrats could select a different candidate. It's hard to argue that the democratic prerogatives of primary voters were somehow violated when most of those voters themselves wanted Biden out.

And it's also hard to argue that voter preference was a result of manipulation by elites. If anything,  most voters regarded Biden's age and infirmity as a serious weakness long before most Democratic elites decided it was. Biden's troubling performance in the June 28 was a kind straw that broke the camel's back. Even viewers who don't follow politics closely and pay little attention to the views of elites could see something was wrong. My nine-year-old daughter—who had never previously watched a presidential debate—commented that Biden looked old and "overwhelmed." Was her reaction somehow dictated by nefarious Democratic elites? Pretty obviously not.

Moreover, democracy doesn't require parties to use primaries to select candidates in the first place. Throughout most of American history presidential candidates were selected by party leaders at conventions and in the proverbial "smoke-filled rooms." Democracy came in because those leaders had incentives to select candidates likely to be popular with general election voters. Indeed, one disadvantage of primaries is that they often tend to advantage candidates who cater to the extremes of the party's base, but are less appealing to general election voters, thereby actually being less responsive to the majoritarian preferences of the voting public, as a whole. In that respect, primaries are actually a relatively less democratic way of choosing candidates than selection by party elites would be.

I am no great fan of Kamala Harris (Biden's likely replacement on the Democratic ticket), and she is not the candidate I would have chosen, if it were up to me. But her ascension clearly has the support of a large majority of Democratic voters. Democracy doesn't require the party to choose a candidate I like, and it certainly doesn't require it to choose one the Republicans would prefer to run against.

The fact that Biden's withdrawal wasn't undemocratic does not necessarily mean it was a good thing. I have long emphasized that democratic processes aren't always good, and should be constrained in many ways.  Such constraints are justified by the dangers of voter ignorance, tyranny of the majority, and other pathologies. In this particular case, I happen to agree with the majority of the public in thinking that Biden's withdrawal was, on balance, a good thing. But it would be wildly inconsistent for me to argue I'm right merely because majority public opinion—for once! –  happens to be on my side.

If you're a Democrat who thinks Biden is preferable to Kamala Harris or a Republican who would rather have Biden as an opponent because he would be easier to beat, you have reason to lament his downfall. But you should not condemn it as undemocratic.

In addition to the argument that Biden's withdrawal was undemocratic, there is the closely related –  but much more ridiculous—theory that it was a "coup." I'm not going to argue against this idea at any great length. Those who believe it are probably beyond rational persuasion. I will only say that a real coup involves violence, or at least the threat of it. The January 6, 2021 attack on the Capitol is plausibly described as a coup, though it is more accurate to call it an insurrection. Biden's withdrawal wasn't anything like that. Perhaps he got a raw deal; but a coup it was not.

 

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[Josh Blackman] Chief Justice Roberts, The Judicial Supremacist in Jarkesy

[The Chief Justice wavers on many issues, but never in returning power to the federal judiciary.]

Jarksey continues a trend by the Chief Justice: the transfer of power from the executive and legislative branches to the judiciary. From Stern v. Marshall to Loper Bright, Chief Justice Roberts rejects effort to deprive the federal courts of its powers to decide cases. Justice Sotomayor makes this point in her dissent:

Beyond the majority's legal errors, its ruling reveals a far more fundamental problem: This Court's repeated failure to appreciate that its decisions can threaten the separation of powers. Here, that threat comes from the Court's mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary.

Indeed, Sotomayor pokes Roberts's much-vaunted "umpire" analogy:

The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.

On many issues, Chief Justice Roberts's jurisprudence is situational, and depends on a a confluence of many factors. But with regard to judicial independence, Roberts is dogmatic. In Jarkesy, Roberts extended this philosophy to the context of the Seventh Amendment. 

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:@WilliamBaude: Graduate Students for Academic Freedom v. Graduate Students United at UChicago

A few years ago, the graduate students at the University of Chicago, where I teach, formed a legally recognized labor union. Last year, that union expanded to include the law school, at least to the extent that law students engage in paid work such as providing research assistance. Law students who want to work as research assistants must either join the union and pay dues, or else pay agency fees to the union even if they do not join. Either way, giving money to the union is a legally required condition of working as a research assistant.

Graduate Students United at the University of Chicago, the union, engages in political speech that some law students find quite objectionable. The union is part of the United Electrical, Radio and Mine Workers of America, which also engages in political speech. For some law students, having to give money to these causes is an unacceptable condition of employment.

Yesterday, a group of those students, Graduate Students for Academic Freedom, filed a federal lawsuit against the union arguing that the arrangement violates their First Amendment rights under cases like Janus v. AFSCME, which holds that compelled agency fees "violate[] the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern."

You can read the complaint here, and the motion for a preliminary injunction here.

From the start of the complaint:

INTRODUCTION

1.  Graduate students at the University of Chicago have been put to the choice of halting their academic pursuits, or funding antisemitism. That is unlawful.

2.  In the Winter of 2023, graduate students at Chicago voted to unionize, and are now exclusively represented by GSU-UE—a local of United Electrical (UE).

3.  That is a real problem. Among much else, UE has a long history of antisemitism. It is an outspoken proponent of the movement to "Boycott, Divest, and Sanction" Israel (BDS)—something so clearly antisemitic that both Joe Biden and Donald Trump have condemned it as such. Indeed, for years, the union has had a consuming fixation with the world's only Jewish state—a fixation peppered with all-too-common rhetoric. UE has charged Israel with "occupying" Palestine; has branded Israel an "apartheid regime"; and has accused Israel of committing "ethnic cleansing."

4.  GSU-UE is cut from the same cloth. On campus, it has not only echoed its parent union's rhetoric, but has added to it. It took pains to publicly "reaffirm" its commitment to BDS just one week after the October 7 terrorist attacks. And it has joined the "UChicago United for Palestine Coalition," which gained notoriety for its protest encampment and hostile takeover of the Institute of Politics. Through it, GSU-UE has joined calls to "honor the martyrs"; fight against campus "Zionists"; resist "pigs" (i.e., police); "liberate" Palestine from the "River to the Sea," and by "any means necessary"; and "bring the intifada home." Jimmy Hoffa's union this is not.

5.  Nonetheless, under a recent collective bargaining agreement extracted by the GSU-UE, graduate students at the University must now either become dues-paying members of the union, or pay it an equivalent "agency fee," as a condition of continuing their work as teaching assistants, research assistants, or similar positions.

6.  Constitutionally speaking, that is not kosher. The union's ability to obtain agency fees from nonconsenting students is the direct product of federal law—i.e., it involves governmental action, subject to the First Amendment. But if GSU-UE wishes to wield such federally backed power, it must accept the responsibility that comes with it; it cannot use a government-backed cudgel, outside constitutional constraint. And if the First Amendment means anything, it means students cannot be compelled to fund a group they find abhorrent as the price of continuing their work.

7.  The stories of Plaintiff's members lay bare the stakes that are at issue here. One member is an Israeli; another a proud Jew with family fighting in Israel; and some are graduate students simply horrified by the union's antisemitism—as
well as its other (to put it mildly) controversial political positions, which reach well beyond collective bargaining to virtually every hot-button subject (e.g., abortion, affirmative action, policing, gender ideology, even the judiciary). Although members come from different backgrounds, none can stomach sending a penny to this union.

8.  But that is the position they find themselves in—put to the choice of funding the union, or stopping their academic work. Some have chosen to opt-out entirely, and have quit pursuing RA work so long as it comes at the cost of their values. Others do not have the luxury. One student is here on a visa from Israel—something, of course, GSU-UE denounces under BDS—and cannot stop his work as a TA if he wants to stay in the country. Another depends on his RA work to help cover cost-of-living expenses, and cannot forgo that income if he wishes to stay at Chicago. Others are deeply torn—tortured as to how to weigh their consciences against their careers.

9.  The First Amendment was adopted to prevent these sorts of choices. Forcing a person to associate with—let alone fund—a particular ideological organization is always a fraught First Amendment endeavor. But the constitutional infirmity here is exceptionally stark. Unlike a garden variety agency fee in the private sector, the agency fees here work as an academic toll on graduate students' ability to pursue expressive activities at the very heart of the First Amendment: Students cannot perform certain teaching or research activities without first paying a kick-back to the union. And to make an intolerable situation worse, that compulsion is especially problematic here, given GSU-UE's decision to adopt a divisive political identity, based on issues well outside the ambit of traditional collective bargaining.

10. What is happening at Chicago is thus as clear an example as it gets of an agency-fee scheme that violates the First Amendment, by the Supreme Court's own lights. An agency fee scheme cannot "force[] men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought." Harris v. Quinn, 573 U.S. 616, 631 (2014). But that is exactly this case. And for that reason, what is happening at Chicago is unlawful, and in violation of the First Amendment's most basic guarantees. It needs to be stopped.

There's much more detail in both documents—especially concerning the "state action" doctrine, one of the legal issues on which the suit will turn. The plaintiffs are represented by Jon Linas, Brett Shumate, Harry Graver, and Riley Walters at Jones Day.

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[Josh Blackman] Today in Supreme Court History: July 23, 1936

7/23/1936: Justice Anthony Kennedy's birthday.

Justice Anthony Kennedy

 

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[Steven Calabresi] Academic Tuition and Student Loan Relief

[My thoughts on this as a policy issue]

There is an important issue that reached the Supreme Court in Biden v. Nebraska, 600 U.S. 477 (2023). President Biden and his Vice President, Kamala Harris, are on the record as favoring the use of presidential power to enact student loan relief without an appropriation by Congress. This is both a bad idea and is unlawful, as the Supreme Court explained in Biden v. Nebraska last year. Since then, President Biden has continued his unlawful attempts to spend money without an appropriation from Congress, an appropriation that is required under Article I, Section 9 of the Constitution.

It is worthwhile, however, to consider the merits of this as a policy idea. Retroactive relief from student loans seems unfair to those who have been paying student loan debt or who never borrowed money in the first place. There are some, however, like Sen. Bernie Sanders, who are on the record as believing that federal money ought to be used to pay for anyone's college tuition. Is this a good idea?

It is certainly true that college tuition, which costs more than $100,000 a year, is unaffordable by 99% of the American people. I am acutely aware of this, having paid for my four children's college tuition myself. Should taxpayers play a role in financing a college education? This is an important public policy question, which will certainly come up in the next two years.

As a law professor for the last 34 years, I have a special window into understanding the forces that are driving historically unprecedented tuition increases in academia. I believe that one of the main drivers of tuition increases is not faculty salaries, which have been stagnant, but instead increases in the size of university bureaucracies. These increases in my view are often harmful to the academic mission. They also impose an insurmountable burden on the American people.

Faculty members are powerless in addressing this problem because tuition is set by University administrators and not by a vote of the faculty. I think alumni and faculty are often unaware of how unaffordable tuition has become. They are also unable to do anything about it. There thus exists a huge problem with record high college tuitions and with essentially no market forces constraining it.

I have, quite reluctantly, come to the conclusion that the unaffordability of college to 99% of the American people must be addressed in the same way as was done in the 1880's for monopoly railroad rates when the Interstate Commerce Commission (ICC) was created. I regrettably see no way of addressing the roots of this problem except by creating a new federal regulatory commission with the power to regulate any college tuition increase above the national rate of inflation.

I do not like the idea of empowering the government in this way over academia, but I see no other way out of a situation that has become a crisis. The government already plays a huge role in academic life as a result of many federal statutes, and as a result of the role the Department of Education plays. The creation of a federal agency with the power to regulate tuition increases beyond the rate of inflation will not undermine academic freedom anymore than existing federal laws have already done.

Such a commission should consist of two members from both political parties plus a chair of the president's party who serve for five year terms. Commissioners should serve at will, and the Commission must be a part of the executive branch. Commissioners should be nominated by the president subject to confirmation by the Senate. Presidents and senators should be admonished to appoint people of judgment and impartiality to this commission. There should be a requirement that commissioners be at least forty years old and that they have knowledge about the forces that are driving tuition increases.

One of many problems with Sen. Bernie Sanders' idea of making federal taxpayers responsible for paying all college tuition is that it addresses none of the root problems that are driving increases in college tuition, which have nothing to do with faculty salaries. My proposal at least addresses the root causes of the huge increases in college tuition that have occurred during the last 34 years.

Putting federal taxpayers on the hook for paying for increases in university bureaucracies will only cause the problem to get worse. Universities and colleges would respond to such a federal subsidy by doubling the size of university bureaucracies, which would aggravate the underlying problem. Such a reaction would be more of a threat to academic freedom than would be the creation of an ICC-like federal regulatory commission.

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:@WilliamBaude: New Episode: Evil Batman

[Dan Epps and I discuss Loper Bright and Corner Post on the latest episode of Divided Argument]

In the most recent episode of Divided Argument, "Evil Batman," Dan Epps and I talk about the Court's two big non-constitutional administrative law cases from this term: Loper Bright Enterprises v. Raimundo (overruling Chevron deference), and Corner Post v. Federal Reserve Board of Governors (statute of limitations for facial challenges to regulations). We conclude that it's far too hasty to say that either case, or both together, spell the end of the administrative state.

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[Stephen Halbrook] Second Amendment Roundup: 8th Circuit Rules for 18 to 20-Year-Olds

[Court relies on Rahimi in support of liberalized gun carry permits.]

Anyone hoping that the Supreme Court's Rahimi decision (which I analyzed here) would represent a roll-back in recognition of Second Amendment rights must be in for a surprise with the Eighth Circuit's decision in Worth v. Jacobson.  Authored by Judge Duane Benton, the court affirmed the decision of the district court and held that Minnesota's limitation of gun carry permits to persons 21 years old and over violates the right to bear arms of persons aged 18-20.

This is the first decision by a circuit court of appeals, mind you, to rely on Rahimi, which was rendered on June 21.  Several courts have  put off action in  Second Amendment cases while awaiting the decision in Rahimi.  While Worth liberally relied on Heller and Bruen, the following focuses on the extent to which Rahimi is already a new sword in defense of Second Amendment rights.

Plaintiffs in the 18-20 age group along with firearm associations mounted a facial challenge to the Minnesota statute.  The court first cited Rahimi for the proposition that such challengers must "establish that no set of circumstances exists under which the Act would be valid."  That rule was the death knell for Mr. Rahimi's challenge to the federal law banning possession of firearms by a person subject to a court order finding him to be a credible threat to the physical safety of an intimate partner. But it would have no bearing in Worth.  Here's why.

Minnesota argued that at the Founding, states restricted guns in the hands of "irresponsible or dangerous groups, such as 18 to 20-year-olds."  (In reality, no state banned carrying guns by that age group.)  Quoth Rahimi: "[W]e reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible.'" That concept is too vague and elusive.

A historical analogue that "remotely resembles" the carry ban, the court noted, will not suffice, then  looked to Rahimi for the test: "A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit[.]" As Rahimi added: "Why and how the regulation burdens the right are central to this inquiry."

Minnesota failed to support its claim that 18 to 20-year-olds are a danger to the public. Contrast that with Rahimi, which repeatedly emphasized that the law at issue "applies only once a court has found that the defendant 'represents a credible threat to the physical safety' of another." The statistics applicable to the subject age group did not show that an 18-year-old, in Rahimi's words, "poses a clear threat of physical violence to another." Unlike the Minnesota law, the statute in Rahimi did "not broadly restrict arms use by the public generally."

Furthermore, the statute affected only those young people who were otherwise eligible to receive a permit to carry.  They must complete "training in the safe use of a pistol" and not be "listed in the criminal gang investigative data system." The record lacked support for the claim that those individuals (quoting Rahimi) "pose [such] a credible threat to the physical safety of others" that their "Second Amendment right may … be burdened."

Worth echoed language from the Rahimi opinion: "An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." Minnesota failed to make a showing of any such credible threat.

Minnesota also relied on the Eighth Circuit's 2023 decision in United States v. Jackson. That case cited historical restrictions on Catholics, Indians, slaves, and people who would not swear a loyalty oath in holding that no as-applied challenge could be made to the federal ban on felon firearm possession.  But as Worth pointed out, the Supreme Court vacated and remanded that case for reconsideration in light of Rahimi.

The Supreme Court further expressed its interest in the felon issue by also vacating and remanding the Third Circuit's 2023 en banc decision in Range v. Garland, which recognized an as-applied challenge to the felon ban.

Judge Benton had joined in the Jackson opinion.  Now, writing in Worth, he described how "many circuits—but not this court" had "coalesced around a 'two-step' framework" that included means-ends scrutiny, which was rejected by Bruen.  Under Bruen, an activity or person covered by the literal text is presumptively covered by the Second Amendment.

Minnesota argued that the plaintiffs did not meet their alleged "burden" of proving they are covered by the text "because they did not submit expert reports or facts about the Second Amendment's text."  No such requirement exists, as Rahimi made clear.  Instead, as Worth observed, the plaintiffs are among "the people" based on the following:

Ordinary, law-abiding, adult citizens that are 18 to 20-year-olds are members of the people because: (1) they are members of the political community under Heller's "political community" definition; (2) the people has a fixed definition, though not fixed contents; (3) they are adults; and (4) the Second Amendment does not have a freestanding, extratextual dangerousness catchall.

Minnesota contended that, at the Founding, the "political community only extended to those over the age of 21, and to "eligible voters, namely white, male, yeomen farmers."  The court found that argument to be "bordering on the frivolous."  The 26th Amendment gave  18 to 20-year-olds the right to vote.  They have all of the other freedoms under the Bill of Rights.

The federal Militia Act of 1792 required able-bodied white males aged 18-45 to provide arms for themselves and enroll in the militia.  Curiously, Minnesota asserted that this was "inverse evidence" that males under 21 had no right under the common law to carry arms.  Instead, the Worth court found the Act to be evidence of the codification of the right instead.

Minnesota argued that the increased prevalence of handguns in the second half of the 19th century presented "unprecedented social concerns" requiring the court to take a more "nuanced approach."  The court flatly rejected this because Heller held that arms in "common use" today are protected and that handguns are in common use.

While the Fourteenth Amendment made the Second applicable to the states, the court followed Bruen's directive to prioritize Founding-era history. The Supreme Court has relied on the public understanding when the Bill of Rights was adopted in 1791, and it would be inconsistent to have different standard for the states and for the federal government.  Worth thus found it "questionable whether the Reconstruction-era sources have much weight."

Moreover, the laws from the latter part of the nineteenth century cited by Minnesota generally did not impose an outright ban on persons under 21 from carrying firearms.  Some only concerned concealed carry, while others related to sales and to discharge of firearms.

The issue of whether courts should give any weight to late nineteenth-century laws that have no parallel to or are inconsistent with those in 1791 has been brewing in the courts.  The Second Circuit in Antonyuk v. Chiumento relied on such laws to uphold New York's ban on gun possession in many public places.  Antonyuk is yet another case that the Supreme Court vacated and remanded for reconsideration in light of Rahimi.

Attorney General Garland must have hoped that by winning Rahimi, the tables would be turned and Supreme Court jurisprudence would support other gun restrictions.  But Worth, the first post-Rahimi appellate horse out of the gate, proves that wish to be unsupported so far.  Now Garland needs to start preparing how to defend 18 U.S.C. § 922(b)(1), which prohibits a licensed dealer from selling a handgun to a person in the 18-to-20 age group.

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Continuing our analysis on the impact of Rahimi from my last post, I'd like to call attention to Mark W. Smith, "Much Ado about Nothing: Rahimi Reinforces Bruen and Heller," JLPP Per Curiam, July 22, which concludes:

The Supreme Court's decision in Rahimi, while substantively routine, is momentous in a different sense: it is a harbinger of the doctrinal steadiness and reinforcement that, until very recently, the courts have uniquely denied the Second Amendment. Rahimi, then, is pathbreaking because it is pedestrian—a sign that the Second Amendment, long the "constitutional orphan" of the Court's jurisprudence, has been welcomed at last into the constitutional family as an equal member.

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