Friday, April 5, 2013
A three-judge panel of the Second Circuit ruled this week in United States v. Bryant that the Second Amendment does not protect a right to possess a gun for drug trafficking. With the ruling, the Second Circuit joins the Seventh and Ninth Circuits in rejecting Second Amendment challenges to 18 U.S.C. Sec. 924(c), providing criminal sanctions for using or carrying a firearm during and in relation to a drug trafficking crime.
The Second Circuit seized on language in D.C. v. Heller that says that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." (Emphasis added, both times.) The court ruled that possession of a gun for a drug trafficking crime is (obviously) not possession for a lawful purpose, and therefore federal law can punish such possession without running afoul of the Second Amendment. The court explained:
Here, Bryant may have purchased and possessed the Remington shotgun for the "core lawful purpose" of self-defense but his right to continue in that possession is not absolute. The jury determined there was sufficient evidence to convict Bryant of drug trafficking and also to convict him of possessing a firearm in connection with that drug trafficking. . . . Thus, once Bryant engaged in "an illegal home business," he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.
Wednesday, April 3, 2013
North Carolina lawmakers introduced a bill earlier this week that declares the state exempt from the First Amendment's Establishment Clause. The bill is apparently a reaction to an ACLU suit filed last month against the Rowan County Board of Commissioners for opening its meetings with explicitly Christian prayers.
But the bill doesn't just take aim at the Establishment Clause. It also challenges federal supremacy and takes on federal judicial review. Here are some of the whereases:
Whereas, [the Establishment Clause] does not apply to states, municipalities, or schools; and . . .
Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and
Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and
Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion . . . .
Here's the punch-line:
Section 1. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.
Section 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivision of the State from making laws respecting an establishment of religion.
More than a year after Federal Judge Richard Cebull of the District of Montana (pictured)reported himself to the Ninth Circuit after a "joke" he forwarded on email became public,
Ninth Circuit Chief Judge Alex Kozinski has issued a statement announcing that Judge Cebull is retiring:
Judge Cebull's self-filed complaint and another were referred to a Special Committee which conducted a thorough and extensive investigation, interviewed numerous witnesses, considered voluminous documentation, including emails, and conducted an interview with Judge Cebull. The Special Committee's Report was submitted to the Judicial Council in December 2012. On March 15, 2013 the Judicial Council issued an Order and Memorandum. Judicial Conduct Rule 20(f). Pursuant to Judicial Conduct Rules 22 and 24(a), the Order and Memorandum remains confidential during the appeal period.
At this time, Judge Cebull has submitted his retirement letter, pursuant to 28 U.S.C. § 371(a), effective May 3, 2013. The Council will have no further statement on this matter until Judge Cebull's retirement is effective.
We will await the Council's statement and release of the Order and Memorandum.
[image of Judge Cebull via]
Monday, April 1, 2013
The United States District Court for the Southern District of Indiana last week ruled in Buquer v. City of Indianapolis that two provisions of Indiana's immigration law, SEA 590, were preempted by federal law. The ruling on one of the provisions, Section 20, followed the Supreme Court's ruling last summer in Arizona v. United States. (H/t Indianalawblog.com)
The ruling permanently enjoins Sections 18 and 20 of SEA 590.
Section 20 says that an Indiana officer "may arrest a person when the officer has . . . a removal order issued for the person by an immigration court; a detainer or notice of action for the person issued by the United States Department of Homeland Security; or probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. Sec. 1101(a)(43)). The court ruled that Section 20 was preempted for the same reason that a similar provision in SB 1070 was preempted in Arizona v. United States:
Similarly, in the case before us there is no indication that state or local law enforcement officers would be required to consult federal immigration officers before effecting an arrest . . . . [W]here the federal government has exercised it discretion to release an individual who has had a removal order issued, the subsequent arrest of that person by Indiana law enforcement officers would directly conflict with the federal decision, obviously and seriously interfering with the federal government's authority in the field of immigration enforcement.
Op. at 19-20. The court said that "it is even more apparent with [the section's] authorization of the arrest of individuals who have been issued a notice of action." That's because such notices are inherently non-criminal. The court also ruled that Section 20 violates the Fourth Amendment, because it allows a warrantless arrest for a non-criminal action.
Section 18 outlaws the use of a consular identification document, or CID--an identification issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state. The court said that Section 18 "directly interferes wtih the rights bestowed on foreign nations by treaty by virtually nullifying the issuance of one of the tools used by foreign nations to exercise those rights." Op. at 29. "It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the field of foreign affairs." Id.
The same court earlier rejected three state senators' effort to intervene in the case. The senators argued that because they voted for SEA 590, they had a sufficient interest in the case. But the court held that they did not satisfy standing requirements under Coleman v. Miller, because the law actually passed. "We find that the three legislators here have not alleged a vote nullifcation injury sufficient to bestow standing in this case." Op. at 7.
Can a judge - - - a Supreme Court Justice - - - be a practitioner of "popular constitutionalism"? Was Justice Felix Frankfurter such a judge?
Snyder's view of popular constitutionalism may be a broader than some, but his linking of judicial restraint with popular constitutionalism, especially when situated in the New Deal era, is sound. Snyder concentrates on three of the most important and oft-criticized constitutional moments of Frankfurter's judicial career – the flag salute cases of Minersville School Dist. v. Gobitis (1940), reversed a mere three years later in West Virginia Bd. of Educ. v. Barnette (1943); Brown v. Board of Education and its progeny; and Baker v. Carr (1962).
Snyder concludes: "Frankfurter’s judicial reputation suffered at the hands of scholars intent on preserving the Warren Court’s legacy of protecting civil rights and civil liberties. Frankfurter’s Baker [v. Carr] dissent, however, has proven to be just as prophetic as some of Holmes’s and Brandeis’s dissents because it revealed the ugly underside of the Warren Court’s legacy – judicial supremacy."
While others have certainly noted the vacillations of progressive and conservative judicial activism, Snyder's article calls for a renewed evaluation of Frankfurter and perhaps of popular constitutionalism.
In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.
Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints. The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed. Batts dispatched this argument with a rehearsal of the causal connections:
But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.
She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.
The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.
In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971). The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion. Judge Batts found it important that
there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.
She disagreed that the size of the cross was determinative. First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall. Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."
As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review. The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history. The museum has the choice whether or not to include atheistic symbols.
Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful. It looks as if the September 11 Museum will include the seventeen foot cross.