Topic: Law and Civil Liberties

Battle of the Ilyas and More on the Chicago Gun Case

Josh Blackman, my coauthor on “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” has inaugurated a series of podcasts devoted to law and liberty. He’s already has an interview with PLF’s Timothy Sandefur (also a Cato adjunct scholar) and the Independence Institute’s David Kopel (also a Cato associate policy analyst).  Tim authored Cato’s brief in McDonald v. City of Chicago, the case seeking to extend Second Amendment protections to the states – and about which I blogged yesterday.

Well, now Josh has come up with a bit of a twist on the podcast medium: he invited George Mason law prof Ilya Somin (also a Cato adjunct scholar) and me to engage in a contest based on the trivia challenge Sixth Circuit Judge Danny Boggs issues his clerkship applicants. The winner of this “Battle of the Ilyas” would receive the free and exclusive right to the Ilya name – because apparently it’s too confusing to have two libertarian lawyers named Ilya in the same metropolitan area/professional circle. It was a lot of fun, and while I won’t tell you the outcome here, you can easily find that out and listen to the conference call we had about it.

Finally, after this “Battle of the Ilyas,” Josh asked me to record a podcast about McDonald – which inspired our article – and United States v. Comstock (another important case in which Cato filed a brief, and which I blogged about here).  Happy listening!

A Surveillance Newsflash from Planet Hopeychange

Climb aboard the TARDIS campers, we’re going to take a magic YouTube voyage to a strange parallel universe, very much like ours, except Barack Obama sports a dashing goatee and… Sorry, what’s that?  Not a parallel universe, you say? August of 2007, you say?

Wait, that can’t be right. Because right around 20 seconds in, Barack Obama says that under his administration, there would be “no more National Security Letters to spy on citizens who are not suspected of a crime.” That’s not who we are, he says! Not what’s needed to fight terrorists, he says!

And yet his Justice Department has quietly but steadfastly fought any effort to limit the use of National Security Letters. When Democratic lawmakers attempted to require that these administrative subpoenas, issued by FBI agents without judicial supervision, be issued only to obtain the records of suspected terrorists or foreign agents or people they’d been in contact with—or if necessary to obtain records relevant to the activities of suspected terrorists in the interest of identifying specific individuals—the administration worked behind the scenes to rally Republicans and Blue Dogs against those changes.

You know, a few more years like this, I’m liable to run right out of Hope™.

Right and Left Take on Feds

The New York Times has a good article about how lawyers on both the right and left are working together to try and roll back state power in the criminal justice system. Here is an excerpt:

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

There’s plenty to be concerned about – overcriminalization, federalization of crime, and the militarization of police tactics.  I told the reporter that Cato has been uniquely positioned on this subject – that is, we remind our friends on the left that businesspeople have their rights violated all the time.  And we remind our friends on the right that police and prosecutors abuse their powers in the “blue collar” context as well.  It is encouraging that more organizations are taking a more skeptical view of government power generally and are embracing more principled positions with respect to the rights of the accused set forth in the Constitution.

Other blogs are covering this article and subject too – go here, here, and here.

It was also nice to see that our friend Harvey Silverglate’s new book (Three Felonies a Day) was mentioned.  We had a book forum for Harvey a few weeks ago and C-Span was here to cover it.

For additional Cato work on criminal justice, go here,  here, and here.

A Special Kind of Eminent Domain Abuse

In federal eminent domain cases, the “scope of the project” rule requires that in determining “just compensation” under the Fifth Amendment’s Takings Clause, any increase or decrease in property value caused by the federal project be disregarded.  As it turns out, the federal government had discussed the idea of expanding Everglades National Park for over 30 years, and also induced the local government to enact tougher zoning standards that decreased the value of the property that was to be taken for this purpose.  This type of behavior is a special kind of eminent domain abuse called “condemnation blight.”

The Everglades-related federal actions forced Gilbert Fornatora to watch the value of his South Florida property decline until the federal government finally condemned it – and paid him much lower compensation than he would otherwise have received.  Then, once condemnation proceedings began, the government manipulated the hearing schedule by front-loading ill-prepared owners who lacked counsel, thereby setting a low valuation precedent that would then be applied to the later parties with representation, like Fornatora.  The Eleventh Circuit sided with the government, so Fornatora petitioned the Supreme Court to review the case.

Cato filed an amicus brief supporting this petition, arguing that property owners have virtually no “scope of the project” protection if they must prove that the government’s sole or primary purpose for pre-condemnation action was to depress property values for later eminent domain proceedings.  A more workable test, consistent with due process, is merely to require evidence of a nexus between the government’s actions and the depressed property value.  The Court should also hear this case to ensure that just compensation proceedings comport with the due process, equal protection, and general fairness standards the government is required to follow in a variety of other settings.

The Court will be deciding early in the new year whether to hear the case, which has the ungainly name of 480.00 Acres of Land v. United States.

Chapman on Chicago Pols and Guns

Steve Chapman has another terrific column – this one about gun regulations and the tendency of politicians to exempt themselves from such regulations – for the public good, of course.  Here’s an excerpt:

Roland Burris, another Chicagoan, has endorsed a nationwide ban on handguns and, in 1993, organized Chicago’s first Gun Turn-in Day. But the following year, while running unsuccessfully for governor, he admitted he owned a handgun – “for protection,” he explained – and hadn’t seen fit to turn it in along with those other firearms. Lesser mortals apparently can protect themselves with forks and spoons.

The Supreme Court will soon be hearing an important case about Chicago’s firearm regulations and the right to keep and bear arms.  Cato just filed an amicus brief (pdf) in that case.

Also, persons interested in this subject should know that Cato associate policy analyst David Kopel has a new book just out.

For additional Cato work, go here.

Cato Files Brief to Extend Second Amendment Rights, Provide Protections for Privileges or Immunities

Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago’s handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court agreed to review the case – after Cato filed an amicus brief supporting the cert petition – and specifically consider whether the Fourteenth Amendment’s Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states.

Now Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban – who are represented by Alan Gura, the lawyer who successfully argued Heller – and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment’s framers and in direct contradiction to the developments in legal theory that underlay its adoption.

We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine – that the Due Process Clause imposes something more than mere procedural limits on government power – was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.

Again, go here to read Cato’s brief in McDonald v. City of Chicago.  Related, Josh Blackman and I have put up on SSRN our article, “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” which comes out in January in the Georgetown Journal of Law & Public Policy.  I will be blogging more about “Pandora” – and, of course, the McDonald case – in future.

New Trial For Cory Maye

Great news - for a change!  A Mississippi court has ordered a new trial for Cory Maye.

When Cato author Radley Balko was preparing his report on violent, no-knock, drug raids, he discovered the case of Cory Maye, who was then on death row for murdering a police officer.  On closer inspection, Radley thought the shooting looked like self-defense, not murder.  At Maye’s initial trial, he had lousy legal representation.  Thanks to Radley’s writings about the case, Maye secured top notch lawyers for his appeal.  With a new trial, Maye now stands a very good chance of getting out of prison altogether.  Congratulations to Radley Balko!

Previous coverage here.