Eugene Volokh's Blog, page 71

[Josh Blackman] The Court Might Favor Standing For Business Interests, But Blue States Beat Red States

[Justices Jackson and Kavanaugh both miss the obvious distinction.]

Diamond Alternative Energy v. EPA presented the question of whether fuel manufacturers had standing to challenge regulations of fossil-fuel vehicles. Justice Kavanaugh, writing for seven members, found that the fuel company had standing. Justice Jackson, in dissent, found that the plaintiffs lacked standing.

Jackson's dissent repeats the familiar refrain that the Supreme Court is pro-business, and is more likely to find standing for businesses backed by the Chamber of Commerce than for civil rights plaintiffs. Jackson writes:

Standing is a constitutional doctrine meant to promote judicial restraint. By design, it "'prevent[s] the judicial process from being used to usurp the powers of the political branches'" and "helps safeguard the Judiciary's proper—and properly limited—role in our constitutional system." United States v. Texas, 599 U. S. 670, 675–676 (2023). But standing doctrine cannot serve that important purpose if the Judiciary fails to apply it evenhandedly. When courts adjust standing requirements to let certain litigants challenge the actions of the political branches but preclude suits by others with similar injuries, standing doctrine cannot perform its constraining function. Over time, such selectivity begets judicial overreach and erodes public trust in the impartiality of judicial decisionmaking. . . . 

Jackson continues that the Court "rests its decision on a theory of standing that the Court has refused to apply in cases brought by less powerful plaintiffs." She concludes that "[t]his case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens."

Justice Kavanaugh responds to Justice Jackson in a paragraph with a long string cite:

JUSTICE JACKSON separately argues that the Court does not apply standing doctrine "evenhandedly." Post, at 1 (dissenting opinion). A review of standing cases over the last few years disproves that suggestion. See, e.g., Alliance for Hippocratic Medicine, 602 U. S., at 374; United States v. Texas, 599 U. S., at 674; Haaland v. Brackeen, 599 U. S. 255, 291–292 (2023); Reed v. Goertz, 598 U. S. 230, 234 (2023); TransUnion LLC v. Ramirez, 594 U. S. 413, 417– 418 (2021); California v. Texas, 593 U. S. 659, 666 (2021); Uzuegbunam, 592 U. S., at 282–283; Thole v. U. S. Bank N. A., 590 U. S. 538, 541–542 (2020); Department of Commerce, 588 U. S., at 766–768.

Kavanaugh offers no actual analysis on this point. He simply lists a series of standing cases from the past five years that "disprove" Jackson's point that the Court is likely to find standing for "moneyed interests." Kavanaugh acts as if this point is self-evident. But there is a problem. The string cite doesn't actually make his case--or at least not without some substantial explanation.

Of the nine cases cited, only two are business cases. TransUnion found that only certain plaintiffs had standing to sue TransUnion. And Thole found that participants in a benefit plan lacked standing to sue the bank. These cases, which generally favor big business, do not rebut Justice Jackson's point.

Two of the case involve civil rights cases. Uzuegbunam found that a student had standing to challenge a University's censorship of his speech. And Reed found that a prisoner had standing to challenge a DNA testing statute. These cases sort of address Justice Jackson's point, but not directly.

The other cases concern ideological strategic litigation brought by states or public interest groups. First, Alliance for Hippocratic Medicine (2024) found that a non-profit lacked standing to challenge the FDA's approval of mifepristone. Second, United States v. Texas (2023) found that Texas lacked standing to challenge a Biden-era immigration policy. Third, Haaland v. Brackeen (2023) found that Texas (and private plaintiffs) lacked standing to challenge the enforcement of the Indian Child Welfare Act. Fourth, California v. Texas (2021) found that Texas (and private plaintiffs) lacked standing to challenge the constitutionality of the Affordable Care Act after the penalty was reduced to $0. Fifth, in Department of Commerce (2019), New York had standing to challenge the inclusion of the citizenship question on the census. There is a sixth case that Justice Kavanaugh inexplicably did not cite: Murthy v. Missouri (2024) held that Missouri lacked standing to challenge the Biden Administration's "jawboning" of social media companies.

What do these six cases have in common? Red states lack standing, but blue states do have standing. It's really that simple--or at least that is the perception here in Texas. To show the Court is being "evenhanded," Kavanaugh lists how often conservative litigants lose on an otherwise conservative court.

Early in Kavanaugh's tenure, I when he made a point about how President Clinton signed a "strict" immigration bill. I wrote:

I have no doubt that Kavanaugh's intent here was as innocuous as in Rimini. But the implication was very different: The Court was not being "strict" toward immigrants; a bipartisan Congress and Clinton were being "strict" toward immigrants. In other words, don't blame us for interpreting the law in a tough fashion—even a Democrat was fine with it.

As several Kavanaugh clerks promptly told me, it has long been Kavanaugh's practice to reference the name of the President who signed the bill. There is definitely a Schoolhouse Rock virtue here. But I also think it conveys a substantive point. Indeed, I often stress that President Clinton signed both DOMA and RFRA to stress the bipartisan nature of those laws.

In Diamond Alternative Energy, Justice Kavanaugh lists all the times that the Court ruled against conservatives to show how it is being "even-handed." I recently wrote that "If [Chief Justice] Roberts views himself as an umpire, his strike zone will ensure that the red team and the blue team usually play a close game, and neither side wins by a large margin." Kavanaugh, regrettably, suggests he is keeping score as well. Kavanaugh has similarly praised the Nixon appointees for ruling against the President who appointed them in United States v. Nixon. Why is that fact relevant unless the standard presumption is that a Nixon appointee should rule in favor of President Nixon? Is this how Kavanaugh thinks of things? I suggested as much after reading Gorsuch and Kavanaugh's perplexing decisions in the tax return cases.

In any event, when Justice Kavanaugh says these cases "disprove" Justice Jackson's argument, he is tacitly acknowledging how the Court refuses to grant standing to red cases, even as it finds standing for moneyed interests. Both Jackson and Kavanaugh miss the obvious distinction. Here, we have another manifestation of Originalism, Inc.

By the way, I did not know this factoid, which I learned in Justice Jackson's dissent: "Cass Gilbert, who designed the Supreme Court building, also designed the Chamber of Commerce's headquarters in Washington, D. C., and the New York Life building in Manhattan, among other major commercial offices." 

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[Josh Blackman] Will The Court GVR The Skrmetti Parental Rights Petition In Light Of Mahmoud?

[The substantive due process question remains.]

On Wednesday, the Court decided United States v. Skrmetti. This petition, brought by the Biden DOJ, only presented the question whether Tennessee's law violated the Equal Protection Clause. DOJ did not petition on the substantive due process issue. Indeed, under 42 U.S.C. § 2000h-2, the Attorney General only has the authority to intervene in an equal protection case.

Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex or national origin, the Attorney General for or in the name of the United States may intervene in such action upon timely application if the Attorney General certifies that the case is of general public importance. In such action the United States shall be entitled to the same relief as if it had instituted the action.

The ACLU, which represented the plaintiffs, petitioned on both due process and equal protection in the case known as . The ACLU's petition remains pending, even though counsel for the ACLU was permitted to argue.

What happens next? Mahmoud v. Taylor is awaiting a decision. If Mahmoud addresses the due process clause with regard to parental rights, the Court might GVR the ACLU's Skrmetti petition.

In other words, Skrmetti may be far from over.

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[Josh Blackman] Today in Supreme Court History: June 22, 1992

6/22/1992: R.A.V. v. City of St. Paul is decided.

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[Ilya Somin] Conservative and Libertarian Public Interest Group Letter Opposing "Big Beautiful Bill" Provision that Undermines Access to Justice

[The provision requires litigants seeking preliminary injunctions against illegal government actions to post potentially enormous bonds.]

Flynt / Dreamstime

In a previous post, I criticized a dangerous provision of the Senate version of Trump's "Big Beautiful Bill" that would radically undermine judicial protection for constitutional rights by requiring litigants seeking preliminary injunctions against illegal federal government actions to post potentially enormous bonds. There, I highlighted a critique by Arizona Supreme Court Justice Clint Bolick, who was previously a prominent libertarian public interest litigation.

Yesterday, a coalition of major, mostly libertarian and conservative, - public interest group leaders submitted a letter to the Senate opposing this provision and urging Congress to reject it. Signatories include leaders of the Firearms Policy Coalition (which organized the letter), the Institute for Justice, FIRE, the Goldwater Institute, the Liberty Justice Center, and more. Here is an excerpt from the letter:

We write as a coalition of organizations who rely on the federal judiciary to uphold constitutionally protected rights and serve as a check on unlawful government action. We are gravely concerned about a proposed provision in the Senate Judiciary Committee's language of the reconciliation package (Subtitle B, Section 203 of H.R. 1, the One Big Beautiful Bill Act) that, if enacted, would mandate that courts require security in order to issue a temporary restraining order or preliminary injunction against the federal government, effectively shutting down access to justice for most Americans. As it stands today, this provision would require a bond that covers the "costs and damages" sustained by the government if it were to ultimately prevail in the case. We're talking upwards of millions, if not billions, of dollars that could be required upfront, effectively shutting off people's ability to enjoin the federal government from causing irreparable harm….

This is not a partisan issue—it's a direct threat to constitutional accountability. If enacted, this provision could seriously impair meritorious public interest litigation across the board, no matter the issue or ideology. The substance of a claim wouldn't matter. What would matter is whether the plaintiff can afford to pay. Access to justice would hinge on wealth, not merit, leaving Americans of all political stripes without recourse when their rights are violated.

The courts use temporary restraining orders and preliminary injunctions to prevent unconstitutional or illegal policies from taking effect while a case is being litigated. This is often the only way to avoid immediate and irreversible harm, censorship of protected speech, illegal regulations that destroy livelihoods, or restrictions that prevent the peaceable exercise of constitutionally protected freedoms. These injunctions are only granted when a court determines the plaintiff is likely to prevail and that the harm without relief would be serious.

But under this provision, a plaintiff's ability to obtain that critical protection would depend not on the merits of their case, but on their ability to pay a potentially astronomical bond up front….

This is not legal reform. This is a financial blockade on constitutional accountability. It rigs the system in favor of unchecked federal power, and it sends a chilling message: unless you're wealthy, don't bother trying to protect your rights.

If this provision is enacted, it won't matter what political party is in power: its impact will be felt by everyone. Whether the issue is freedom of speech, religious liberty, due process, or any other fundamental freedom, this kind of legal barrier puts them all at risk in a "heads I win, tails you lose" framework—with the federal government on top.

No government should be allowed to insulate itself from judicial review by making it prohibitively expensive for Americans to petition the government for redress and seek to protect their rights through restraining orders and preliminary injunctions, often the last line of defense before suffering irreparable harm.

I agree completely! I would add that this provision creates a perverse incentive for government officials to actually increase the scale of their illegal policies. The larger the scale, the higher the potential costs "suffered" by the government if it is unable to immediately implement them. Challenging the illegal detention of a thousand people will probably require a bigger bond than challenging that of one or a few. Challenging the illegal seizure of a large amount of property would require a larger bond than challenging that of a small amount. And so on.

In my earlier post, I made a few additional points that bear repetition here:

Right now, Republicans are seeking to enact these restrictions in order to block injunctions constraining a GOP administration's policies. But, as Bolick notes [the coalition letter makes this point, as well], under a more left-wing administration the same tool can easily be turned against rights conservatives value. Consider a left-wing president who targets gun rights or religious liberty rights, or tries to censor speech DEI activists consider offensive.

Ultimately, it is more important to ensure the vast powers of the federal government cannot be used to undermine the Constitution and take away our rights than to ensure an administration can swiftly implement all its preferred policies. And if a rogue district court does impose an injunction improperly, higher courts can quickly stay or overturn it, as has happened a number of times in recent months.

If this Senate provision gets enacted, there is a chance courts might invalidate it as an unconstitutional assault on the power of judicial review - which it is. But it would be better if Congress does not go down this dangerous road in the first place.

It may be that this provision will be ruled out of order, because it violates the "Byrd Rule," which restricts the range of policies that can be enacted through reconciliation bills, bypassing the Senate filibuster. If not, Congress should strip this unjust and dangerous policy from the bill.

NOTE: As regular readers know, I have longtime associations with some of the groups that signed the coalition letter. for example, the Institute for Justice and I have worked together on various property rights issues, and I was a summer clerk there when I was a law student. Currently, the Liberty Justice Center and I are working together on the tariff case, where I am co-counsel along with several LJC attorneys.

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[Josh Blackman] Today in Supreme Court History: June 21, 1989

6/21/1989: Texas v. Johnson is decided.

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[Josh Blackman] Chief Justice Roberts and Justice Gorsuch Walk Back Bostock

[Justice Sotomayor is right. The majority cannot just wish away Bostock.]

A lot can happen in five years. June 2020, or Blue June as I called it, was one of the most depressing periods in recent Supreme Court history. After Justice Kennedy retired, Chief Justice Roberts became the new swing vote, and swung to the left in nearly every case. Perhaps the most confounding decision was Bostock. Justice Gorsuch, joined by Chief Justice Roberts, ruled that the Civil Rights Act of 1964 all along prohibited discrimination against gays, lesbians, and transgender people.

The decision was profoundly wrong. Yet, I think Bostock can be understood, at least in part, as a reflection of the zeitgeist. June 2020 was close to peak woke. The pandemic combined with #MeToo and the George Floyd "racial reckoning" created a perform storm for progressivism. All of the trend lines seemed to be moving towards the acceptance of what is often described as transgender ideology--the argument that biological sex and gender identity were distinct, and that irreversible medical treatment should be provided to minors to conform biological sex sex to gender identity.

But over the past five years, those trend lines reversed. This reversal was due, in part, to new medical information about how puberty blockers and cross-sex hormones affect minors. It was also due to revelations that public schools were secretly transitioning children without their parents' consent. And perhaps most critically, people became no longer afraid to criticize the orthodoxy. The left's most powerful tool was censorship--on social media in particular. But boycotts against Target and Bud Light, as well as demonstrations about biological males competing in female sports, shifted the Overton Window on what could be discussed. (I worry that Justice Barrett would see these movements as "animus.")

Supporting these shifts were state legislatures that passed laws restricting providing medical treatment to minors, and barring transgender athletes from sports. Were these laws clearly constitutional under United States v. Virginia? I'll just say that Justice Sotomayor's dissent was more persuasive than I expected. Were these laws consistent with the "because of" analysis under Bostock? Again, I think the dissent made the case more persuasively than I expected. Chief Justice Roberts gave us yet another Houdini opinion: focus on the exceptions for the medical treatment, and ignore the necessary role that biological sex plays in the regime. The man is a master of misdirection. Don't be fooled. I think the Sixth Circuit and Justice Alito got it right.

So what changed between 2020 and 2025? In particular, what can explain the votes of Chief Justice Roberts and Justice Gorsuch. In fairness, I'm not sure the Chief ever fully bought Gorsuch's position. As the sixth member, he had a free vote, and he could cast it to help create the appearance of bipartisanship. I would like to give Roberts the benefit of the doubt, but he surrendered the presumption of regularity after NFIB.

What about Justice Gorsuch? It is difficult to describe how much anger Gorsuch received within conservative circles for Bostock. That decision gave Adrien Vermeule the perfect opportunity to advance common good constitutionalism. Bostock also opened a window for the James Wilson Institute to promote the study of natural law. For many people (not me) Bostock was the first hint that something was wrong with the Trump appointees. At a Federalist Society Convention, Gorsuch joked that he doesn't care what we think about his decisions. But that isn't true. One doesn't become a Supreme Court justice unless one deeply cares what members of his community think. Noscitur a sociis. Judge a judge by the company he keeps.

I remain convinced that the full court press placed on the conservative Justices helped grease the skids for Dobbs. And I think that pressure had an effect on Justice Gorsuch as well.

For example, during oral argument in Skrmetti, Justice Gorsuch did not say a word. He did not open his mouth once. Even as the word "Bostock" was uttered more than twenty times, Gorsuch said nothing. He gave the Wall Street Journal editorial page nothing to scrutinize.

What about during the opinion hand down? Mark Walsh offered this account:

As she discusses her view that the majority is trying to distinguish "away" Bostock v. Clayton County, the 2020 decision that said Title VII covered sexual orientation and gender identity in employment, Justice Neil Gorsuch, the author of Bostock but a member of today's majority, turns just to his left and looks at her intently, with his hand to his head.

The sound of silence.

(I am grateful that SCOTUSBlog-Dispatch is re-investing in this valuable feature.)

In Skrmetti, Roberts and Gorsuch walked back Bostock. That much is clear. Will it be overruled? Justice Alito said he would sail under that pirate flag as a matter of statutory stare decisis.

I dissented in Bostock, but I accept the decision as a precedent that is entitled to the staunch protection we give statutory interpretation decisions

But it will not be extended a single league further.

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[Eugene Volokh] Court Rejects Sealing and TRO in EverQuest Lawsuit

From Daybreak Game Co. v. Takahashi, decided Wednesday by Judge Cynthia Bashant (S.D. Cal.):

Per the Complaint, Daybreak owns the intellectual property to EverQuest, including trademarks and copyrights associated with the EverQuest franchise. EverQuest is a "massively multiplayer online role-playing game" that has achieved a measure of commercial success. Daybreak alleges that Defendants Kristopher Takahashi and Alexander Taylor, as well as yet to be identified Defendants Does 1-20, collaborate to "create, develop, distribute, and promote an unauthorized and illegal EverQuest emulator called 'The Heroes' Journey'" ("THJ"). Defendants Takahashi and Taylor are the respective lead producer and developer of THJ and play primary roles in promoting it through interviews and communications in online forums such as Discord. By operating the emulator, Daybreak alleges that Defendants engage in "systematic and deliberate copyright and trademark infringement." …

The court denied Daybreak's attempt to seal the case:

Daybreak moves to temporarily seal this case in its entirety, asserting that sealing is necessary "to prevent Defendants from learning of the proceedings prior to the service of and execution of any temporary restraining order." Accordingly, Daybreak requests that the Court seal the Complaint, the TRO Application, the Ex Parte Motion for Leave to Exceed Page Limits, and the Motion to Seal.

As an initial matter, the Court notes that both the Complaint and the TRO Application are more than tangentially related to the merits of this case. "A complaint is the document delineating what the merits of the case are." And "[p]articularly relevant here, a motion for [temporary restraining order] frequently requires the court to address the merits of a case, which often includes the presentation of substantial evidence." Thus, the "compelling reasons" standard applies.

Here, Daybreak's assertions that Defendants "likely will destroy relevant documentary evidence and hide or transfer assets to foreign jurisdictions" are too speculative to overcome the strong presumption in favor of public access to judicial records. Absent concrete factual support, the Court would be required to "rely[ ] on hypothesis or conjecture" tojustify sealing the Complaint and TRO Application in this action. In support of its sealing request, Daybreak cites declarations from Nicholas B. Janda, counsel of record, and David Youssefi, Senior Vice President and General Counsel at Daybreak; however, these declarations merely reiterate the same conclusory assertions without providing specific, substantiated facts. Daybreak also cites the TRO Application itself, but it likewise offers nothing more than speculative predictions regarding Defendants' hypothetical conduct if provided notice.

Moreover, Daybreak filed the Ex Parte Motion for Leave to Exceed Page Limits and the Motion to Seal under seal. Because these are non-dispositive, procedural motions that do not bear on the merits of the underlying claims, they fall below the threshold of "more than tangentially related to the merits of the case." Accordingly, the good cause standard governs whether they may be sealed and requires a "particularized showing" that "specific prejudice or harm will result" if the information is disclosed. "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning" will not suffice.

Since Daybreak relies on the same assertions to justify its request to seal the entire action—namely, generalized concerns that Defendants may destroy evidence or transfer assets if made aware of the proceeding—it offers no separate or independent justification for sealing the Ex Parte Motion for Leave to Exceed Page Limits or the Motion to Seal. As discussed above, these assertions lack concrete factual support and are too conclusory to satisfy the "compelling reasons" standard. They likewise fail to satisfy the less stringent good cause standard applicable here, as they do not provide a particularized showing of specific harm or prejudice that would result from public disclosure of the materials sought to be sealed.

And the court denied the TRO:

As previously discussed, Plaintiff offers only speculation regarding the potential destruction of evidence or transfer of assets if Defendants are provided notice. This conclusory approach is exactly what the Ninth Circuit found insufficient as the basis of an ex parte order….

Here, the TRO Application contains no allegation—let alone evidence—that Defendants have a history of destroying evidence or disobeying court orders. In Plaintiff's Certificate Regarding Notice, counsel asserts that "[a]lthough Defendants Takahashi and Taylor have been identified, no notice has been provided because … [inter alia] … Defendants have demonstrated their intent to evade legal accountability by operating under pseudonyms despite conducting a large-scale commercial operation."

Even assuming the assertion is accurate, the Court remains unpersuaded that Defendants Takahashi, Taylor, and Does 1–20's use of online pseudonyms in commercial activity—standing alone—establishes a likelihood that they will disregard court orders or destroy evidence, let alone demonstrates a history of such conduct. Daybreak has not presented any evidence that Defendants, or that persons similarly situated, have previously destroyed evidence or violated court orders.

The court did, however, allow the redaction of a few specific items:

Daybreak seeks to redact internal data, including engagement metrics—such as monthly and daily active user statistics—and internal financial analyses. Daybreak contends that, inter alia, disclosure of this information would impair its ability to manage communications with investors, partners, and users concerning the future of EverQuest. As discussed in the Court's June 14, 2025 Order, such a request is subject to the "compelling reasons" standard, as it pertains to a motion that is more than tangentially related to the merits of the case.

In this instance, the Court finds that Daybreak has presented compelling, factually supported reasons for sealing, and that public disclosure of the identified information could harm its competitive standing. Moreover, the proposed redactions are narrowly tailored.

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[David Kopel] Machine gun history

[Law and technological development]

While legal scholarship on firearms has grown tremendously since I first started writing on the issue in the late 1980s, one topic that has never been addressed in detail in any law journal is machine guns. My new article in the Wyoming Law Review, Machine Gun History and Bibliography, aims to fill the gap.

The article appears in a symposium issue of the Wyoming Law Review, based on papers presented at a 2024 conference held by the law school's Firearms Research Center, where I am a senior fellow. This was the first law school symposium ever on the National Firearms Act of 1934, one of the two foundational federal gun control statutes.

Of the five other articles in the symposium issue, one of my favorites is The Tradition of Short-Barreled Rifle Use and Regulation in America, by Joseph G.S. Greenlee. While this is not the first article about NFA regulation of short-barreled rifles (SBRs), it is the first to examine in depth the history of SBRs, which before the 1934 NFA imposed a $200 tax on them, were quite common. And they're common today too; as of May 2024, there were 870,286 registered in the National Firearms Registration and Transfer Record, which is maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. (ATF, Firearms Commerce in the United States, Statistical Update 2024, p. 12.)

My other favorite in the symposium is Stephen Halbrook's The Power to Tax, The Second Amendment, and the Search for Which "Gangster' Weapons" to Tax. In brief, the NFA bill as introduced also included handguns, but they were removed from the bill at the insistence of the National Rifle Association and the National Guard Association, which at the time were very closely allied. The inclusion of SBRs and short-barreled shotguns (SBSs) was simply an effort to prevent evasion of the draft restrictions on handguns. Once handguns were deleted from the NFA bill, there was no longer any reason for the bill to include SBRs or SBSs. No testimony or congressional statement claimed that either of these firearms types were a particular crime problem.

My own article, on machine guns, does not delve into legislative history, nor does it make any arguments pro or con about special laws for machine guns. Rather, the articles aims to be useful to courts, lawyers, and scholars in two ways: First, the article explains the statutes, regulations, and other important legal texts for American machine gun law. Second the article provides a history of the development of machine guns and their impact on warfare, including a comprehensive bibliography of books for each machine gun type. The Article begins with the 1862 Gatling gun and continues through the present.

Here is the abstract:

This Article provides an introductory history of machine guns and books about them. First, the Article describes federal machine gun laws and regulations, and related legal resources. Then the Article presents the historical development of machine guns from 1862 to the present, covering the various types of machine guns: heavy, medium, light, general purpose, submachine gun, machine pistol, and assault rifle.

The first machine gun to achieve broad commercial success was the Gatling gun, invented during the American Civil War. Although the Gatling had little effect on that war, shortly thereafter the Gatling gun and other manual machine guns started to change warfare. Later, heavy machine guns such as the automatic Maxim gun, and its successor, the Vickers gun, dominated battlefields. Towards the end of World War I, the heavy machine gun was dethroned from its supremacy by the widespread adoption of new, portable light machine guns, which could be used to suppress an enemy machine gun nest while other troops advanced.

In the subsequent two decades, especially during World War II, machine guns that were easily portable by a single soldier became much more common, such as the Thompson submachine gun widely used by American and British forces. During the Cold War, the assault rifle, no bigger than an ordinary rifle, became increasingly important. Most influential, almost always for ill, was the Soviet Union's AK-47 and its progeny. The American counterpart, the M16, proved much less effective in battle, at first due to technical problems, and everlastingly because of its puny bullet.

Improvements in metallurgy, manufacturing, and design have improved the quality of infantry machine guns. But a soldier with a machine gun on a battlefield in the third decade of the twenty-first century will likely be using a machine gun of a broad type that was already in widespread use by the 1950s.

Besides the machine guns named in the abstract, some of the other machine guns covered in the article include the Lewis Gun, the execrable French Chauchat, Browning Automatic Rifles, Browning Machine Guns, the Finnish Suomi, the British Bren Gun, Sten Guns, Grease Guns, the many German and Soviet innovations of WWII,  plus Cold War and subsequent machine guns from companies such as Belgium's Fabrique Nationale and Germany's Heckler & Koch, the American M14 and others, and lastly the modern machine pistols from Uzi, MAC, and Heckler & Koch. The Article concentrates on infantry arms, with only passing attention to aircraft-mounted machine guns.

Finally, I would like to thank the staff of the Wyoming Law Review for an outstanding job on editing and cite-checking. With over 120 published journal articles, I have been through the cite-check process many times, and the Wyoming process was among the very best. Their rigor much improved the precision of the article, and the editors had a strong knowledge of firearms.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Hapless lawyers, police auditors, and Welsh laws.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case: Officials in James Island, S.C. say they are using eminent domain to take IJ-client Kyle Taylor's property to build a park. But it's a ruse! The land is ill-suited to be a park; that's just something the town made up after caving to NIMBYs who don't want anything built. Indeed, Kyle's plans are fully compliant with the zoning, and he's spent years jumping through every hoop the planning commission threw at him. The taking is pretextual, which the Fifth Amendment forbids. Boo hiss.

New on the Bound By Oath podcast: The Fifth Amendment says that the gov't must pay just compensation when it takes private property, a command that, regrettably, is often treated as a mere suggestion. On this episode, we take a look at a variety of gambits and flim-flammeries that let the gov't take property without paying for it.

New on the Short Circuit podcast: IJ's school choice leader Michael Bindas discusses a qualified immunity case about a police shooting. (Which, believe us, is actually relevant to school choice.)

Independent journalist runs a YouTube channel, "Long Island Audit," where he posts his encounters with police. He's arrested for trying to record in an NYPD stationhouse lobby. District court: No preliminary injunction on his First Amendment claim, but supplemental state law claims are likely to succeed. Second Circuit: Perhaps, but the state statutes are kind of unclear and new. Certified question to the New York Court of Appeals!Qualified immunity is the Veg-O-Matic of modern constitutional law—It slices! It dices! It kicks plaintiffs out of court!—but it doesn't, the Third Circuit reminds us, change the basic rule that a plaintiff's complaint need only contain a short, plain statement of facts, not allege enough facts to show a right was "clearly established."
18-20 year olds may be able to vote these days, but because at the Founding they were "infants" for purposes of contracting it's fine to prohibit them from buying handguns, says the Fourth Circuit (over a dissent).Pretrial detainees: Judges in Prince George's County, Md. apply policies that arbitrarily deprived us the opportunity to be bailed out. District court: You cannot sue because of arcane principles of judicial absolute immunity. Fourth Circuit: Actually, it's arcane principles of Article III standing that mean you can't sue the judges. But you can sue the county, and it has no immunity.Is a Welsh law adopted under Henry VIII "relevantly similar" to the federal ban on possessing a firearm within 1,000 feet of a school? Fifth Circuit: For this guy? (Who for days slept in his car parked by a Beaumont, Tex. school, had notes referencing Islamic terrorists on his phone, and told a concerned parent that he had a "mission" that meant that after tomorrow no one would ever see him again.) Sure, close enough. Second Amendment defense is denied.Man who's high on PCP crashes car and, though handcuffed, thrashes and struggles against Harris County, Tex. officers trying to get him into the back seat of a police SUV. An officer tases him repeatedly in drive-stun mode. He dies. Too much force? Fifth Circuit (over a dissent): Nope.Handcuffed detainee curses, pulls away from Saginaw, Mich. officer, who suplexes him headfirst into the ground, fracturing the detainee's skull. Sixth Circuit (unpublished): To trial this must go. No qualified immunity. No municipal immunity.Another week, another Seventh Circuit panel eviscerating hapless lawyers for failing to comply with briefing requirements—this time, the requirement to include in the appendix all orders and oral rulings under review. In a charming variant on Muphry's Law, the panel also fulminates at having been obliged to waste time "pouring through the record." See generally Bryan A. Garner, Garner's Modern American Usage 643 (3d ed. 2009) ("This blunder occurs in writing not pored over carefully enough by a good proofreader . . . .").Allegation: Camden County, Mo. man repeatedly criticizes local officials—for instance, accusing them of overpaying for a building purchased from a county employee. They retaliate by banning him from county property for a year and criminally investigating him after he votes at the courthouse. Eighth Circuit: To trial this must go.During the War of 1812, a New York militiaman declined President Madison's call to federal duty, and, after a court martial, the state seized his property to pay off his fine. In 1827, the Supreme Court upheld the fine and upheld the president's delegated authority to call up state militias, further noting that any "wanton tyranny" that resulted could be remedied at the ballot box. Ninth Circuit: The recent unrest in Los Angeles seems unrest-y enough to fall within the president's delegated authority. TRO stayed. [PI hearing is today]California probationer is subject to a warrantless search condition, which allows police to search his person, property, or residence without a warrant. Acting on a tip, police catch man with drugs and search his car and apartment. Man challenges search of his apartment, arguing that police did not have probable cause to believe it was his residence (though it was). Ninth Circuit: They had plenty of probable cause. Concurrence (joined by two judges): But we should take this case en banc to remove the probable cause requirement, which makes it easier for probationers to keep safehouses for illegal activity. Concurrence (joined by one judge): If California wants to change the conditions of supervised release, that's up to them, not us.When Grants Pass, Or. public-school employees (working in part on school time) started a campaign to change the school's new policy on transgender students, a firestorm ensued, as staff, parents, students, and (apparently) internet randos all filed complaints about their efforts. Ninth Circuit: That's definitely disruption, but was there enough disruption to justify firing the campaigning employees? Who knows? You guys should go find out at trial!Cameras capture two men and a woman arriving via Jeep at an Artesia, N.M. motel, leaving two hours later with the woman sobbing, and the men returning three hours later without her. Her body is found that afternoon, shot 21 times. The men are charged with federal kidnapping because, according to the feds, vehicles are instrumentalities of interstate commerce, making all car-related kidnappings federal. Tenth Circuit: "The Constitution does not tolerate such extremities" as allowing the feds to regulate everything that moves. (Ed. note: Arguable circuit split alert! Check out the Sixth and Seventh circuits.)Oklahoma City police detain driver whose passenger is wanted for failing to appear in court. Ten minutes after the passenger is arrested, a drug doggie arrives on scene, does an open-air sniff of the vehicle, and alerts. Driver: Suppress the evidence? Tenth Circuit: Indeed. Vacated and remanded.Colorado podcaster is subpoenaed to testify at deposition in a defamation lawsuit brought by a former executive at Dominion Voting Systems. Halfway through the deposition, the podcaster leaves the courthouse and starts bragging about it on his podcast. He's held in civil contempt and appeals the contempt order. Tenth Circuit: Affirmed, and your arguments on appeal were so frivolous that you're paying fees for this, too.And in en banc news, the Second Circuit will not reconsider its opinion affirming a $5 mil award ordered against President Donald Trump for sexually assaulting and defaming E. Jean Carroll. Two judges dissent, arguing that the trial court should have excluded evidence of previous sexual assaults allegedly committed by the president, because, in their view, the evidence didn't show any particular modus operandi besides the president's being generally sexual-assaulty.

New case: In April, Perth Amboy, N.J. officials declared that properties owned by IJ clients Honey Meerzon and Luis Romero, a multi-family home and an auto-repair shop, are "blighted," a designation that allows the city to use eminent domain to seize them for a private developer. But the properties are not blighted, and the study that says otherwise is chock-full of egregious errors—claiming, for instance, police stops of passing drivers as police visits to the properties. The designation is an end run around New Jersey law, which does not allow for blighting properties absent conditions that really, truly, actually threaten public health and safety.

 

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[Ilya Somin] The Ninth Circuit's Flawed Decision Upholding Trump's Federalization of the California National Guard

[The ruling gets several important issues right - and one big one wrong.]

California National Guard members in Los Angeles. (Apex/Mega/DFBEV/Newscom)

 

Yesterday, the US Court of Appeals for the Ninth Circuit issued a decision overturning a trial court ruling that had invalidated President Trump's federalization of 4000 troops of the California National Guard. The Ninth Circuit gets several important issues right, but ends up getting the bottom line wrong.

Trump federalized the National Guard in response to protests and unrest caused by ICE deportation operations. The statute Trump relied on, 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

All parties agree there is no "invasion" by a foreign power. District Court Judge Charles Breyer correctly ruled the very limited violence in LA was nowhere near the type or scale needed to qualify as a "rebellion," and also that mere impediments to law enforcement don't qualify as an "inability" to "execute the laws" with "regular forces." Otherwise, as I pointed out in my analysis of his ruling, an "inability" to enforce the laws would exist in virtually every city at any time, since there are always many lawbreakers whom "regular forces" are unable to detect and detain.  Judge Breyer also ruled, correctly, that the determination about whether the prerequisites for invoking the statute exist is not a "political question" exempt from judicial review.

Interestingly, the per curiam Ninth Circuit ruling actually endorses much of the above. Like Judge Breyer, the appellate court rejects the administration's position that the criteria for invocation are a political question immune from judicial review. Indeed, the Ninth Circuit actually goes further than Breyer, concluding that the political questions doctrine doesn't apply to statutory issues at all, only certain constitutional ones. I am not sure this is correct, as a general matter. But I do agree that the president does not have unconstrained authority to invoke extraordinary emergency powers purely based on his say-so.

The Ninth Circuit does not address whether there is a "rebellion" in Los Angeles, basing their ruling purely on the supposed "inability" to execute federal law with "regular forces." On that score, they, much like Judge Breyer, recognize that this provision is only triggered by extreme situations:

[W]e do not think that any minimal interference with the execution of laws is, by itself, enough to justify invoking § 12406(3). The statutory context confirms that. Subsections one and two of the statute discuss unusual and extreme exigencies—invasions and rebellions—that threaten the normal operations of civil government. If we were to adopt the federal government's reading of subsection three, it would swallow subsections one and two, because any invasion or rebellion renders the President unable to exercise some federal laws.

As Judge Breyer explained in his detailed opinion, there was no such "unusual and extreme exigency" in LA on June 7. ICE and other federal law enforcement agencies continued to operate - including by detaining numerous supposedly illegal migrants - despite a few violent incidents in which no one was killed or even - apparently  - seriously injured.

The Ninth Circuit also emphasizes that the courts can overturn invocations of the act made in "bad faith" for pretextual reasons.

The evidence the Ninth Circuit cites as justifying federalization seems skimpy, at best:

There is evidence that the day before, protesters threw objects at ICE vehicles trying to complete a law enforcement operation, "pinned down" several FPS officers defending federal property by throwing "concrete chunks, bottles of liquid, and other objects," and used "large rolling commercial dumpsters as a battering ram" in an attempt to breach the parking garage of a federal building. Plaintiffs' own submissions state that some protesters threw objects, including Molotov cocktails, and vandalized property. According to the declarations submitted by Defendants, those activities significantly impeded the ability of federal officers to execute the laws.

Such actions are reprehensible and should be prosecuted in court. But they fall far short of an "unusual and extreme exigency."As Elizabeth Goitein, a leading expert on presidential emergency powers and the domestic use of the military, points out, "[t]he [govenment's] declarations do not provide a single example of a case in which an attempted ICE raid was thwarted or a planned raid was canceled."

Moreover, allowing these kinds of low-level violence and impediments to law enforcement to justify invocation Section 10,246 violates the Ninth Circuit's own strictures against interpreting Subsection 10,246(3) so broadly as to "swallow subsections one and two." Virtually Any invasion or rebellion necessarily involves much greater violence than this, and much greater consequent interference with federal law enforcement. The only way to avoid the redundancy is to limit Subsection 3 to large-scale civil disorder that does not amount to a "rebellion" or "invasion," but does cause a major breakdown in law enforcement. By contrast, some invasions and rebellions, because of their short duration or limited geographic focus (e.g. - the enemy invades a very lightly populated area where there is relatively little crime), may create only modest obstacles to law enforcement, and those come under one of the first two subsections without triggering the third.

Why, then, does the Ninth Circuit rule in favor of Trump? Largely because they apply "a highly deferential standard of review" to presidential determinations here. The court admits that "the text of the statute does not make the President the sole judge of
whether one or more of the statutory preconditions exist," and that "if we were considering the text of § 12406 alone, we might conclude that the President's determination is subject to review like certain other factual findings that are preconditions for executive action under a statute." They nonetheless opt for broad deference because "a line of cases beginning with Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), interpreting those delegations, strongly suggest that our review of the President's determinations in this context is especially deferential."

Martin was an 1827 case interpreting a predecessor statute to Section 12406, in which the Supreme Court held that "the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons." This strikes me as terrible reasoning, essentially allowing the president to assert extraordinary emergency powers based on his unsupported say-so. If he truly has unreviewable authority to determine whether the relevant "exigency" exists, he could declare that, e.g., illegal marijuana possession qualifies as "rebellion" (or as an inability to enforce the laws with regular forces, so long as many violators aren't caught), and federalize the Guard throughout the nation, indefinitely.

If Martin were a binding precedent indistiguishable from the present case, the Ninth Circuit would have to apply it. But the Ninth Circuit judges themselves note multiple plausible reasons to make distinctions. Among other things, Martin 1) addressed a predecessor statute enacted many decades earlier (Section 10246 was enacted in 1903), 2) it dealt with an obvious genuine "invasion" - the War of 1812, 3) "the Court relied in part on the nature of a foreign invasion and the need for military subordinates to follow orders" [Martin involved a case of a New York militiamen who refused orders to help repel British attacks during the War of 1812], and 4) recent precedents, including the Supreme Court's own approach to similar language in the Alien Enemies Act (authorizing detention and expulsion of non-citizens in the event of "invasion"), are far less deferential. Even if none of these points is individually sufficient to justify reading Martin narrowly, they are surely enough in combination.

In addition, the Ninth Circuit should have paid greater heed to its own stricture that deference should not be applied to presidential determinations made in "bad faith." There is considerable evidence of such bad faith here. Trump has a long history of advocating the use of the military against political opponents, and generally praising political violence against them. More recently, high-ranking administration officials have openly stated that the goal of deploying the military in LA is to usurp the authority of the state and local governments. For example, DHS Secretary Kristi Noem has said that "[w]e are staying here to liberate this city from the socialist and burdensome leadership that this governor and this mayor have placed into this city."

At the very least, if courts (wrongly) reject other reasons for invalidating Trump's federalization of the Guard, they should closely investigate the evidence of bad faith here, instead of just presuming good faith, as the Ninth Circuit judges did. Bad faith, even if present, might not by itself justify striking down the President's actions. Sometimes government officials do the right thing (or at least the legal thing) for the wrong reason. But extensive evidence of bad faith is sufficient reason to deny deference that might otherwise be appropriate.

Finally, I think the Ninth Circuit flubbed the statutory requirement that "federalization orders must be issued "through the governor of the respective State … from which State … such troops may be called." The judges were wrong to conclude this requirement is met by issuing the orders to the state's Adjutant General, a subordinate official who is the commander of state military forces. It seems clear that "through the governor" means "through the governor," not through a subordinate of his. That said, there is legitimate dispute over whether that provision is purely ministerial or whether it requires the government to consent to the orders.

Overall, the Ninth Circuit decision makes some good points, and gets several important issues right. Sadly, they then largely ruined their own good work by engaging in excessive deference.

As the decision notes, they do not address some important issues still before the trial court, most notably whether the president's use of the military in LA violates the Posse Comitatus Act (which bars the use of the military for civilian law enforcement in most circumstances).

More can be said. But this post is already too long, and I will stop here.

Elizabeth Goitein, mentioned above,  has additional analysis and criticism of the Ninth Circuit ruling in an insightful Twitter/X thread.

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