Roger Pilon (Author at The Cato Institute)

McDonald v. City of Chicago (Legal Briefs)

Sat, 21 Nov 2009 00:00:00 EST

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 has agreed to review the case 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. Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban—who are represented by Alan Gura, 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.

Incorporating the Second Amendment (Daily Podcast)

Mon, 05 Oct 2009 00:00:00 EDT

Alvarez v. Smith (Legal Briefs)

Tue, 04 Aug 2009 00:00:00 EDT

The State of Illinois, like most states and the federal government, authorizes police officers to seize property involved in certain drug crimes. Illinois' forfeiture law allows the State to wait as long as six months before having to prove the legitimacy of the seizure, which proceeding may then be delayed indefinitely for "good cause." The six plaintiffs in this case — three of whom were never charged with a crime — had their cars or money seized without a warrant for months or years without any judicial hearing, and sued the state and city authorities for violating their rights to due process. The Seventh Circuit found the Illinois law to be unconstitutional because of the delay between the seizure and the forfeiture proceeding and ruled that the plaintiffs must be afforded an informal hearing to determine whether there is probable cause to detain the property. The Supreme Court agreed to review the case at the request of the Cook County State Attorney. Cato, joined by the Goldwater Institute and Reason Foundation, filed a brief supporting the individuals whose property was seized. Written by David B. Smith, who previously supervised all forfeiture litigation for the Department of Justice and is now the nation's leading authority on civil and criminal forfeiture, the brief makes three arguments: 1) Because the Illinois law, unlike the federal Civil Asset Forfeiture Reform Act of 2000, is stacked in favor of law enforcement agencies and lacks protections for innocent property owners, the Court should apply the due process analysis from Mathews v. Eldridge, rather than the more lenient test the State proposes; 2) What has become known as a Krimstock hearing has proven to be an effective and not overly burdensome means of preventing government delay and a meaningful opportunity to contest seizure; and 3) the State's comparison of the time limits in CAFRA with those in its own law is misleading.

United States v. Stevens (Legal Briefs)

Tue, 28 Jul 2009 00:00:00 EDT

Although many states have passed laws outlawing acts of animal cruelty, Congress in 1999 for the first time made it a federal crime simply to depict those acts. Under that statute, the government convicted Robert Stevens of selling documentary films containing footage of dog fighting—even though Stevens, a pit bull enthusiast, was opposed to dog fighting and had not engaged in it himself. Seeking to preserve its conviction against a First Amendment challenge, the government took a broad view in the Supreme Court of its power to suppress speech. The government maintained that the "strict scrutiny" test usually applied to content-based speech prohibitions need not apply where speech can be characterized as "unprotected." And although some narrow categories of speech have long been recognized as "unprotected" by the First Amendment (e.g., fighting words, incitement, defamation, obscenity), the government proposed a balancing test that would allow new categories of speech to be carved out from First Amendment protection any time the "societal costs" of the speech are deemed to outweigh its "value." Cato filed a brief supporting Stevens, arguing that the government's position was a dangerous and unprecedented encroachment on the freedom of speech. Our brief canvasses the Court's doctrine to show how inventing a new category of previously unrecognized "unprotected" speech would entail a radical shift in the Court's jurisprudence. Our brief also illustrates how the absence of a limiting principle in the government's proposed balancing test could be used in future cases to impose a host of new speech restrictions—from laws prohibiting "defamation" of religion and hate speech to laws prohibiting the depiction of drug use.

National Rifle Association v. City of Chicago; McDonald v. City of Chicago (Legal Briefs)

Mon, 06 Jul 2009 00:00:00 EDT

Last summer, in District of Columbia v. Heller, the Supreme Court confirmed what the Framers, most scholars, and a substantial majority of Americans believe: that the Second Amendment protects an individual right to keep and bear arms. Heller led to lawsuits raising the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. In a consolidated case involving a challenge to Chicago's handgun ban, the Seventh Circuit answered that question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. Cato, joining with the Institute for Justice, filed an amicus brief supporting requests for the Supreme Court to review that line of precedent. We argue that the Court's initial encounters with the Fourteenth Amendment yielded a profound misreading of its Privileges or Immunities Clause that has haunted the Court's rights jurisprudence ever since. The Chicago petitions present the Court with an unprecedented opportunity to reach back to the very source of that misreading, the 1873 Slaughter-House Cases, and there are three compelling reasons why the Court should do so: 1) the only disagreement among circuit courts in the wake of Heller is whether they are bound by the Court's decisions refusing to apply the right to keep and bear arms against the states; 2) case law and scholarly commentary together form a kind of constitutional conversation, which has arrived at a clear consensus about Slaughter-House that merits the Court's consideration; and 3) the Constitution is not merely a blueprint for government, but a charter of liberty. Accurately placing the Fourteenth Amendment within that tradition would be a virtue in itself and would sharpen the national dialogue regarding the source, nature, and limits of our rights.

Sotomayor and SCOTUS (Daily Podcast)

Thu, 28 May 2009 00:00:00 EDT

Cato Scholars Comment on Obama Supreme Court Nominee Sonia Sotomayor (Scholar Comments)

Tue, 26 May 2009 00:00:00 EDT

In nominating Second Circuit Judge Sonia Sotomayor to fill the seat of retiring Supreme Court Justice David Souter, President Obama chose the most radical of all the frequently mentioned candidates before him.

Given the way she recently all but dismissed the Ricci case –- involving the complaint by New Haven, Connecticut, firefighters that the city had thrown out the results of an officers exam because the results did not come out "right" –- and the expectation, based on oral argument, that the Supreme Court will reverse the Second Circuit decision, there will likely be an extremely contentious confirmation battle ahead. If confirmation hearings are scheduled for summer, they will follow shortly upon the Court's decision in that explosive case.

Are we to imagine that President Obama chose as he did because he wants that battle?