Topic: Law and Civil Liberties

The Fact-free Gun Control Debate

By
Tim Lynch

From Thomas Sowell’s latest column:

Amid all the heated, emotional advocacy of gun control, have you ever heard even one person present convincing hard evidence that tighter gun-control laws have in fact reduced murders? …

What almost no one talks about is that guns are used to defend lives as well as to take lives. In fact, many of the horrific killings that we see in the media were brought to an end when someone else with a gun showed up and put a stop to the slaughter. The Cato Institute estimates that there are upwards of 100,000 defensive uses of guns per year. Preventing law-abiding citizens from defending themselves can cost far more lives than are lost in the shooting episodes that the media publicize. The lives saved by guns are no less precious just because the media pay no attention to them.

Read the whole thing. Go here for the Cato research that Mr. Sowell is talking about.

Topics: 
Law and Civil Liberties

Paring Back Leviathan, One Case at a Time

By
Roger Pilon

In an email this morning, Institute for Justice President William “Chip” Mellor was crowing, and rightly so, about IJ’s latest win for economic liberty – a decision by Milwaukee Circuit Court Judge Jane Carroll striking down the city’s 20-year-old taxicab law prohibiting competition in the taxi market. That adds one more city to the string: IJ’s attorneys have brought an end to similar taxi monopoly statutes in Denver, Indianapolis, Cincinnati, and Minneapolis.

What caught my eye here, however, was the attorney who won the case, Anthony Sanders, working out of IJ’s Minneapolis office. Back in the summer of 2002, after his first year of law school, Anthony did a bang-up job at Cato helping us put together the very first volume of the Cato Supreme Court Review.

But that’s hardly the only IJ/Cato connection. The one I’m most proud of goes back to 1989 and my very first summer intern, Scott Bullock, now an IJ senior attorney. Just last January Scott won an important civil asset forfeiture case up in Boston – that’s an obscure issue we’ve worked for years to bring to the fore. And in March, Scott won a crucial Fifth Circuit economic liberty case, resulting in a circuit split on the issue and hence a good chance that the Supreme Court will at last revisit its jurisprudence concerning this “second-class” right.

We train ’em, Chip sends ’em out to do battle in the courts, and little by little we pare back Leviathan.

Topics: 
Law and Civil Liberties

Supreme Court Wisely Rules that U.S. Law Doesn’t Apply Outside the U.S.

By
Ilya Shapiro

As Walter Olson notes below, today the Supreme Court correctly ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, like any federal law not explicitly stating otherwise, does not cover actions occurring outside the United States.  That is, you can’t bring a suit in U.S. court just because it involves a “violation of the law of nations” (the conduct that the ATS addresses).

As Chief Justice Roberts said in announcing the decision, even a claim that a foreigner committed such an international-law violation against another foreigner isn’t enough to counter the presumption that laws don’t have extra-territorial application.  Indeed, in such a case – and Kiobel’s allegations of human rights abuses by Nigerians against Nigerians in Nigeria is such a case – there is even less of a reason to invoke the jurisdiction of American courts than if some American dimension existed (e.g., the citizenship of one of the parties or the location of the conduct).  

Nothing in the text of the ATS overcomes that basic presumption against extra-territoriality and the Court’s fascinating historical exposition demonstrates why the First Congress – the ATS was enacted in 1789 as one of our first laws – wouldn’t have wanted to change that practice or make the fledgling republic a “uniquely hispitable forum for the enforcement of international norms.”

As Cato’s amicus brief argued, the Founders understood “the law of nations” to provide a methodology for defining the extraterritorial scope of ATS jurisdiction. Their understanding of jurisdiction rested on the nexus between territory and sovereignty; the law of nations as of 1789 recognized a territorial nexus between the state asserting jurisdiction and the claim asserted. That the law of nations permits jurisdiction over piracy on the high seas or in other unique circumstances doesn’t mean that a U.S. court may assert jurisdiction over conduct occurring entirely within the territory of a foreign sovereign.

Finally, the Court correctly noted that the mere fact that corporations are present in the case – the original issue was whether the ATS recognized corporate liability – doesn’t somehow change the extraterritorial-applicability calculus.  In Kiobel, even the corporations were foreign (Dutch and British oil companies), with nobody alleging that so much as a U.S. subsidiary was involved.

At the end of the day, this was an exceedingly complicated case with a relatively simple solution.  Well done, Supreme Court.

Topics: 
Law and Civil Liberties

SCOTUS Gets It Right in Kiobel

By
Walter Olson

My reaction to today’s Supreme Court decision in Kiobel v. Royal Dutch Petroleum:

Just as the United States should not play policeman to the world, so our courts should not play tort-suit venue to the world. Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades-long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide-ranging method of hauling overseas damage claims into American courts. All nine Justices agreed with the Second Circuit that the statute does not grant jurisdiction for our courts to hear a controversy over alleged assistance in human rights violations outside the U.S. against non-U.S. plaintiffs by a non-U.S. business.A majority of five justices reiterated and relied on our law’s strong traditional presumption against extraterritoriality, that is to say, presumption against applying the law to actions that take place in other countries. While parting from this reasoning, four concurring justices nonetheless endorsed a view of ATS as applicable extraterritorially only to very extreme misconduct comparable to piracy, and also as sharply limited by considerations of comity with foreign sovereigns.

It is a good day for a realistic and modest sense of what United States courts of justice can successfully do, namely: do justice within the United States.

Topics: 
Law and Civil Liberties

Don’t Fall For Obama’s Gun Control Folly

By
Tim Lynch

Washington Post Columnist Courtland Milloy says he isn’t falling for Obama’s gun control proposal.  Here’s an excerpt from his column today:

Politicians would do well to learn how the real war on gun violence is being fought. For example:

In federal court last week, 23-year-old Ezra Griffith was convicted of unlawful possession of a firearm by a felon. D.C. homicide detectives had confiscated a 9mm Glock with an extended 30-round magazine during a search of Griffith’s apartment in Southeast Washington. The U.S. Attorney’s Office successfully prosecuted the case.

Another gunman off to jail. Another gun off the streets. That’s how it’s done. Go after the criminal. Take his illegal gun. Leave everybody else alone.

The proposed national gun control legislation would make it harder for law-abiding citizens to purchase guns — and, if passed, would surely be hailed as a victory over the “gun lobby.” But it would do nothing to curb gun violence where the problem is at its worse — in black neighborhoods. Nor would it do much to stop the kind of carnage that occurred in Newtown last year.

Topics: 
Law and Civil Liberties

Changing the World, Little By Little

By
Roger Pilon

If ever you wondered how important institutions were for changing the climate of ideas, the Chronicle of Higher Education released a cover article today, “How Conservatives Captured the Law,” that should settle the question. Written by Michael Avery and Danielle McLaughlin – she a Boston attorney, he a Suffolk University law professor and former president of the far left National Lawyers Guild, whom I’ve debated more than once – it’s a surprisingly dispassionate chronicle of the growth and influence of the Federalist Society over the past 30 years.

Cato, our outreach, and our Supreme Court Review come in for mention early on. And the Legal Studies Institute of The Fund for American Studies, in which I co-teach, gets credit at the outset. But the main focus is understandably on the Federalist Society. Reflecting on its origins at the society’s 25th anniversary gala, Justice Antonin Scalia remarked, “We thought we were just planting a wildflower among the weeds of academic liberalism, and it turned out to be an oak.” It did indeed, with a membership today of more than 50,000 lawyers and law students, lawyer chapters in 75 cities, and student chapters in every accredited law school in the country, the society last year held nearly 2,000 events, including many involving Cato people.

The authors’ dispassionate account notwithstanding, it takes little imagination to see where they stand:

The Federalist Society’s membership includes many brilliant and sincere theorists who raise important and interesting issues. On the other hand, the society’s critics say, its overall impact is reactionary. By glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American exceptionalism as a reason to remain apart from global governance, and pushing related policies, these critics say, the society advocates a form of social Darwinism that has been discredited by mainstream American legal thought since the 1930s.

Social Darwinism? That must be how Progressives see the eclectic group that speaks and debates through the Federalist Society’s auspices, because without so much as a beat in between, the authors continue:

Membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with one another on significant issues, but who cooperate in advancing a broad conservative agenda. They generally support individual rights and a free market, and prefer states’ rights to action by the federal government.

We do indeed, discrediting the “Darwinism” – the Hobbesian war of all against all – that is the product today of the jurisprudence of the 1930s. And in that cooperation there is a lesson. To be sure, we don’t always agree. But we agree on enough to be able to work together to get something done. Read the whole piece to see how much has been done.

Topics: 
Government and Politics, Law and Civil Liberties, Political Philosophy

Supreme Court Ducks Key Second Amendment Issue — For Now

By
Ilya Shapiro

Alas this morning the Supreme Court declined to review Kachalsky v. Cacace the challenge to New York City’s effective ban on carrying firearms (which I’ve previously discussed).  To correct some early media reports, this does not mean that the Court upheld the law or affirmed the decision of the U.S. Court of Appeals for the Second Circuit.  It simply means that the scope of the Second Amendment right to keep and bear arms outside the home remains an open question, subject to divergent rulings in the lower courts.

But those lower-court rulings have indeed diverged greatly, creating what lawyers call a “circuit split.”  The Second Circuit in Kachalsky applied a nominal intermediate scrutiny that ultimately became perfunctory deference to the legislature, with the burden on the plaintiffs to justify the exercise of their rights. The Seventh Circuit, meanwhile, in an opinion by Judge Richard Posner in Moore v. Madigan, struck down Chicago’s complete prohibition on carrying firearms, finding that Illinois could not justify such extreme measures.  For “a severe burden on the core Second Amendment right of armed self-defense,” the same court ruled in an earlier case, the government must provide “an extremely strong public-interest justification and a close fit between the government’s means and its end.””  The D.C. and Fourth Circuits, meanwhile, have presumed the constitutionality of legislated restrictions, although D.C. Circuit Judge Brett Kavanaugh wrote an important dissent suggesting that the scope of the right to carry should be determined by analogizing historical practice and precedent.

Those who follow firearms policy now recognize that this issue that was left open by District of Columbia v. Heller – the scope of the individual right that the Second Amendment protects – is crying out for resolution.  As Cato said in the brief we filed supporting the Kachalsky petition:

The Second Amendment’s scope and the means of assessing restrictions on that right thus remain largely undefined. No other constitutional right has been so left to fend for itself in the lower courts. This Court has not hesitated to seize opportunities to ensure the protection of other constitutional rights—recognizing historically based categorical rules, developing comprehensive methodologies, and announcing robust standards. The Second Amendment merits, and now needs, the same solicitude.

Whatever analytical approach the Court ultimately employs, the time has come to begin filling in the picture that the Court outlined in Heller, and to bring some harmony to the cacophony below.

We’ll now have to wait a bit longer for the Court to do that. As is always the case, the Court doesn’t give reasons for granting or denying review, but it’s possible that the Court didn’t want to take a gun case from the Second Circuit, which has jurisdiction over Connecticut, where the Newtown shootings occurred.  Or it may be waiting for Moore v. Madigan, because taking a petition brought by a state government would be seen as less discretionary – and would also allow the Court to focus on a complete ban on the right to carry rather than severe restrictions.  (D.C. and Illinois are the only jurisdictions that have flat bans, while 10 states, including New York, “may issue” such licenses in practice, but most rarely do in practice except to celebrities and former law enforcement officers.  The vast majority of states “shall issue” carry licenses unless the applicant has a felony conviction or mental illness, while a handful don’t require a license at all.)  

In any event, the issue isn’t going away and there’s only so long that the Court will be able to bear the legal incongruity and uncertainty. As former solicitor general Paul Clement – who represented the NRA in McDonald v. Chicago – put it, “They’re eventually going to have to take it.”

Topics: 
Government and Politics, Law and Civil Liberties

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