Law – Page 8 – Shall Not Be Questioned

Revisiting the Treaty Power?

Ilya Somin notes that Bond v. United States could possibly be going back to the Supreme Court, with a question that raises the Treaty Power of the United States. The treaty power is currently interpreted by the Courts to be an independent power that can be separately exercised from Congresses other enumerated powers, so the normal federalism limits don’t apply when it comes to a treaty. No treaty can stomp on the Bill of Rights, but beyond that the treaty power is fairly unlimited. I agree with Prof. Somin that this presents a problem:

I think the power to make treaties is best understood as a power allowing the federal government to make commitments regarding the use of its other enumerated powers, not a power that allows the federal government to legislate on whatever subjects it wants, so long as the issue is covered by a treaty. Among other things, the latter would enable the federal government to circumvent limits on the scope of its power by paying off a foreign power (e.g. â€“ a weak client state dependent on US aid) to sign a treaty covering the subject.

I’d love to see the Supreme Court revisit this topic, and hold the treaty power can only be exercised within the scope of Congress’ other enumerated powers, but this would call a number of treaties into question, including those that affect hunting. I tend to think the Court will be cautious about a ruling that would affect current treaties.

The landmark ruling that lead to Congress’ treaty power being interpreted this way was Missouri v. Holland, which upheld the Migratory Bird Treaty Act of 1918. Since then the Courts have tended to limit this power. Of course, Missouri v. Holland was decided in 1920, when the scope of the federal governments enumerated powers were considerably more constricted, so today it would probably be possible to argue that the 1918 treaty is a legitimate exercise of Congress’ enumerated powers, and is therefore still constitutional, even if the Court decides to further limit the treaty power.

Embody Suit Dismissed by 6th Circuit

From the decision:

For his troubles, Embody has done something rare: He has taken a position onÂ the Second and Fourth Amendment that unites the Brady Center to Prevent GunÂ Violence and the Second Amendment Foundation. Both organizations think that theÂ park ranger permissibly disarmed and detained Leonard Embody that day,Â notwithstanding his rights to possess the gun. So do we.

This was a bad case taken forward by someone who doesn’t want to leave things to experts, so SAF went in with arguments that would kill the suit. The Court essentially concluded it was a legitimate Terry stop, so there was no 4th Amendment case to be made:

Embody does not quarrel with this accounting of what happened. To his mind, all thatÂ matters is that carrying an AK-47 pistol in a state park is legal under Tennessee law; the gunâ€™sÂ resemblance to an assault rifle, the conspicuous arming of it, his military clothing and theÂ concerns of passers-by add nothing. But the constitutional question is whether the officers hadÂ reasonable suspicion of a crime, not whether a crime occurred. Otherwise, all failedÂ investigatory stops would lead to successful Â§ 1983 actions. Having worked hard to appearÂ suspicious in an armed-and-loaded visit to the park, Embody cannot cry foul after park rangers,Â to say nothing of passers-by, took the bait. The officers stopped him only as long as it took toÂ investigate the legitimacy of the weapon and, at his insistence, bring the supervisor to the park.Â No Fourth Amendment violation occurred.

The court skirted the Second Amendment issue by upholding the qualified immunity of the officers in question:

To the extent Embody means to argue that the Second Amendment prevents TennesseeÂ from prohibiting certain firearms in state parks (and thus prohibited Ward from detainingÂ Embody on suspicion of possessing an illegal firearm), qualified immunity is the answer. SeeÂ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). No court has held that the SecondÂ Amendment encompasses a right to bear arms within state parks. See District of Columbia v.Â Heller, 554 U.S. 570 (2008) (individual right to bear arms in the home); United States v.Â Masciandaro, 638 F.3d 458 (4th Cir. 2011) (upholding regulation prohibiting firearms inÂ national parks). Such a right may or may not exist, but the critical point for our purposes is thatÂ it has not been establishedâ€”clearly or otherwise at this point. That suffices to resolve thisÂ claim under the Courtâ€™s qualified-immunity precedents. See Pearson v. Callahan, 555 U.S.Â 223, 236 (2009).

The Bradys are, of course, treating this like some kind of victory, but the fact is we got what we wanted here, and in a pretty non-damaging way. The Brady folks could have hoped for a lot more from a suit as reckless as this. The standard for overcoming qualified immunity is pretty high, and this dismissal here does not mean what the Brady folks would like it to mean. I am sure, however, we have not seen the last of Leonard Embody’s one man crusade to ruin Second Amendment precedent in the 6th Circuit.

When addressing a crowd of gun bloggers, Alan Gura mentioned the biggest threat to our Second Amendment rights was these kinds of oddball pro se litigants, who take forward bad cases with no legal expertise, and proceed to establish negative precedent that is difficult to overcome. So far, I think we’ve seen less of that than I expected. I applaud SAF and Mr. Gura for intervening in this case, and crushing it like the cockroach in the kitchen that it was.

Prof. Volokh on Large Capacity Magazine Restrictions

I’ve never really understood why we want to offer the federal judiciary grounds for finding restrictions on commonly owned arms constitutional. I’m generally a pretty big fan of Professor Eugene Volokh’sÂ Implementing the Right to Keep and Bear Arms, which has been cited by multiple courts in Second Amendment cases. But when it came out I wrote a series of posts offering some criticism on Prof. Volokh’s paper, where I thought he needlessly ceded ground with a federal judiciary eager for reasons to uphold the status-quo on guns, and find as much as possible constitutional. Because magazines holding more than ten rounds are overwhelmingly preferred by both police and armed citizens for self-defense, it’s difficult for me to see how they can be restricted under theÂ HellerÂ common use test. When it comes to banning arms from civilian hands, the state should face the highest possible burden in showing either the arm is not a personal arm, and doesn’t fall under the right, or that it is, as Heller noted “dangerous and unusual.” Magazines that hold more than 10 rounds are certainly not dangerous, and nor are they unusual, at least not in relation the dangerousness of firearms generally. Prof. Volokh suggests as much in his paper. Given that they are commonly used, they ought to fall under Second Amendment protection according to Heller. I just don’t see any reading of Heller that indicated we needed to concede that ground.

I don’t believe we ought to encourage the courts to use these kinds of balancing tests where courts get to evaluate the lethality of the weapon at hand, and then evaluate how minor or major the burden on self-defense the challenged restriction presents. The rights and interests of the citizen is almost always going to be trumped by the interest of the government when the courts engage in this kind of balancing act.

I prefer a few brighter line tests, some of which Heller has suggested already.Â I also strongly believe in Prof. Nelson Lund’s supposition,Â that you have to look at police use when determining whether an arm ought to be protected, because otherwise the government’s default move is going to be to ban any new technology before it becomes in widespread use, such as many states have done with electric stun weapons.

UCMJ Prohibitions

Reports are emerging that the deranged murdering psycho (I shan’t name him) responsible for shooting up the Sikh temple was discharged from the military under less-than-honorable conditions. The Gun Control Act requires someone to have been discharged under dishonorable conditions, which is distinct from less-than-honorable, in order to be prohibited from purchasing or possessing firearms. You generally have to do something pretty serious, and be convicted via court martial, in order to qualify for a dishonorable discharge. I figured I’d mention this, because no doubt people will be claiming he was prohibited from owning a firearm on the basis of his military discharge, which if it’s less-than-honorable is not correct.

UPDATE: Sean in the comments:

This is partially true. A Dishonorable Discharge is a direct bar to gun ownership, but there are other ways.

Other Than Honorable discharge is a negative type of administrative discharge and is not a bar to gun ownership. Could happen due to drugs or getting caught being part of a white supremacist group.

Bad Conduct Discharge, however, can only be issued as a result of a Special or General Court Martial. Any conviction at Court Martial is a Federal felony, and is generally barring.

Gun Laws By State

A friend e-mailed a recommendation for this resource, which is a comprehensive guide to the gun laws of the 50 states done in a fairly non-technical manner.

On the Roberts Opinion in NFIB

Tam laments that Chief Justice Roberts doesn’t seem to understand the role of the courts in being a check against excesses of democracy. I believe the NFIB opinion was unequivocally a loss for freedom, and created an unnecessary expansion of federal power through the power to tax. But I do not believe it was a disastrous loss, because the opinion places greater restraint on federal power in other areas, and does not specifically overturn many of the limitations placed on Congress’ power to tax, which is not unlimited.

A lot of folks on blogs have been suggesting that whether the power is reached through taxing power or commerce power is six one way half-dozen the other. I don’t agree that’s the case. The taxing power is more limited than if Congress could exercise one of its enumerated powers to enact a mandate. First, The Roberts Opinion did not directly overturn Bailey v. Drexel Furniture Co.Â which held the Child Labor Tax unconstitutional because it was a penalty masquerading as a tax. Robert went on at some length to distinguish the ACA’s mandate as from the one in Drexel Furniture. Some of his reasoning was painfully weak, but by making the distinction, it keeps in place a limit on how far Congress could go before a tax is considered a penalty in disguise. The ACA exempts people who pay no income taxes, and then taxes at a base rate of 700 dollars, continuing at 2.5 percent of income up to a maximum of the cost of a plan purchased from one of the health exchanges. This was enough for Roberts to distinguish it from Drexel Furniture, where the penalty was 10% of net profits. Roberts considered the ACA “tax” was not punitive in nature. Because Roberts maintained limits to this new power, it leaves open the path for future challenges should Congress decide to exercise its taxing power similarly in the future. If this act was ruled a valid exercise of Congress’ power under the Commerce Clause, or Necessary and Proper Clause, there would be no limit; Congress could impose burdensome, punitive fines, and/or impose jail sentences.

Because of the way the case was decided, I think it’s a a stretch to put Roberts in the same category as the left-wing of the court, or to suggest he’s turned liberal, or is as liberal as anyone Obama would nominate. Obama’s and Clinton’s court nominees, if they had gotten their way, would have abolished the entire idea that Congress’ powers are limited. Roberts has been willing to strike down legislative enactments where it’s been in clear violation of Constitutional standards, and has indicated a willingness to go along with restricting federal power in several areas that aren’t trivial, including restraining federal and state power to regulate guns. While I am greatly disappointed in his expansion of the federal taxing power, I am quite pleasedÂ he agreed to expand coercion doctrine, meaning the federal government does not have plenary power to blackmail the states into doing its bidding by threatening withdrawal of funding. This isn’t a small deal.

While I don’t think the NFIB decision was a complete disaster for liberty, we still need to be watchful. There’s a strong current in conservative legal thought that supports the concept of judicial restraint.Â Conservative justices always seem torn betweenÂ judicial minimalism, originalism, and other competing ideas in conservative legal thought which leads them to sometimes wander off the reservation. I would argue we need nominees who are committed to the destruction of the New Deal, and to the restoration of our federal government as one of limited and enumerated powers — justices who won’t hesitate to strike down enactments of Congress in order to limit its power. IÂ doÂ expect the Court to save us from ourselves. That’s the body’s purpose. Our founders were not the proponents of democratic rule that many on both the left and right of legal thought are today, and I think they were correct in their skepticism of it. It’s a shame our political class has seemingly lost that healthy skepticism.

A Partisan Shift

A little commentary by Jeff Bishop of damnum absque injuria about a decision that came down today:

Falwell v. Hustler Magazine, the case widely misrepresented as “People vs. Larry Flynt,” was decided 8-0 on First Amendment grounds in favor of a corporation. Citizens United and today’s American Traditions Partnership decision were both decided 5-4, with all four liberals arguing in dissent that legal persons (corporations, LLCs, etc.) aren’t really “people” and therefore, any natural person with the audacity to form one should check his own First Amendment rights at at the door.

So for all four liberals on the Supreme Court, along with an overwhelming majority of self-described liberals outside it, corporations are “people” with First Amendment rights when they peddle porno and smear public figures, but cease to be “people” as soon as they contribute anything of value to national political discourse.

What Isn’t News Today

So no healthcare decision today. According to SCOTUS Blog, they weren’t too far from having 100,000 people on their live coverage site today. They have planned for Thursday and realize that they could reach 250,000.

While we wait, I thought there were parts of this NYT article that gave a preview of how little thought many in Congress and the White House gave to the idea of any kind of legal challenge:

In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The White House held a conference call to tell reporters that any legal challenge, as one Obama aide put it, â€œwill eventually fail and shouldnâ€™t be given too much credence in the press.â€

Congress held no hearing on the planâ€™s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. â€œAre you serious?â€ she asked with disdain. â€œAre you serious?â€
…
The first lawsuits were filed the day Mr. Obama signed the plan in March 2010. By the end of January 2011, judges in Florida and Virginia had ruled it unconstitutional. Only then did the Senate and the House hold hearings on its constitutionality, and the administration grew worried.

More on Zimmerman Prosecutor Targeting Critics

It turns out that Angela Corey has a history of targeting critics, something that’s really getting attention ever since she threatened to sue Harvard Law School for employing a critic of her work.

She hinted at going after a newspaper columnist for libel (and called him stupid) for disagreeing with her treatment of another big case she’s handling. She also targeted the university that employees another critic of her handling of a different case by submitting records requests for the school to turn over all documents from the law professor regarding the other case Corey is handling. While there isn’t a claim in this article that she threatened to sue this critic or her employer, it does seem absurd for the prosecutor to waste her time on such an exercise.

Specifically, the act of calling a critic’s employers to rant and scream apparently isn’t a first. She has done the same thing two other times. (h/t Harold)

Angela Corey Goes Off on Critics

It would appear that questioning the quality of the job a prosecutor does during a case is unacceptable according to Angela Corey.

State Attorney Angela Corey, the prosecutor in the George Zimmerman case, recently called the Dean of Harvard Law School to complain about my criticism of some of her actions.

She was transferred to the Office of Communications and proceeded to engage in a 40-minute rant, during which she threatened to sue Harvard Law School, to try to get me disciplined by the Bar Association and to file charges against me for libel and slander.

When Harvard disputed this, she apparently emphasized that because they hire him as a professor, they can be sued for anything he says, even his personal opinions outside of the classroom. It would seem that if the woman has time to rant to a communications staffer for 40 minutes about the horrors of freedom of expression, she would have the time to review her cases a little more thoroughly to avoid the kinds of criticism that have been heaped on her by legal professionals.

Of course, this also leaves one to wonder if Corey is threatening other critics through their employers, but they don’t have the protection of tenure and academic institutions. If she has not done so yet, there will likely be plenty of time for her to do so, and likely many reasons for critics to speak up if her track record of submitting only facts that support her case continues.

Beyond the simple issue of trying to suppress speech against government actions, Legal Insurrection points out that she may be digging herself into a hole.

Corey now has made the prosecution a personal issue. Will she conduct the prosecution in such a way as to achieve justice, or to set herself up for a personal lawsuit against Dershowitz and Harvard?

Corey certainly has a right to protect and defend her reputation in civil actions, but she cannot interject those concerns into a prosecution. By threatening suit against a critic in the middle of the case, Corey has put her own financial interests at stake in the outcome and conduct of the prosecution.

So now, according to Corey’s own claims, she plans to seek financial gain from her prosecution of George Zimmerman. But we wouldn’t want to criticize her for such unprofessional behavior or she might threaten to sue us. Because who wants to live in a country where we are allowed to question the state’s prosecution of citizens? Freedom is just so overrated.