Topic: Constitution, the Law, and the Courts

Natural Law, Gay Rights, and the State Department’s New Commission on Unalienable Rights

More on the State Department’s new Commission on Unalienable Rights, about which I wrote in this space on Friday. Aimed at providing Secretary Pompeo “with fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights,” the commission has raised several concerns. Chief among them is whether “natural law” is code, signaling that the department in future might “focus less on protecting women and LGBT people,” as put by Politico, which broke the story on Thursday afternoon. 

Giving weight to those concerns, ABC News late Friday reported that, according to a source familiar with the plans for the commission, Princeton’s Robbie George has played a prominent role in its creation. I’ve known Prof. George for some time now. He’s a first-rate scholar and advocate for religious liberty. In fact, he spoke at Cato’s 2016 conference on religious liberty, which we memorialized with our book Deep Commitments. But as co-founder of the National Organization for Marriage and a prominent voice in Catholic circles, he has long argued against the gay-rights agenda, especially same-sex marriage.

If this is the course the commission takes, this “fresh thinking about human rights” could seriously complicate the work of the department’s Bureau of Democracy, Human Rights, and Labor, especially in countries with draconian anti-gay laws and practices. But at a theoretical level too, as noted in my earlier post, the promise this “fresh thinking” raises for correcting some of the misconceptions that afflict today’s rights talk could easily be lost by coupling natural law and religious belief. A word is in order on that matter. 

Start with this: Natural law and natural rights are not the same thing. True, natural rights emerged historically from natural law. And in the Declaration of Independence, Jefferson did speak of our rights as being “endowed by [our] Creator.” But that was a very general invocation, suited properly for “a candid World” wherein was found a variety of beliefs. Properly understood, however, especially as modern natural rights theory has evolved, our rights are not grounded in a prescriptive natural law, much less in any belief system, religious or otherwise, but in universal human reason, as John Locke and many of the Founders understood. They saw that liberty—the right to pursue happiness by our own subjective lights—was the very essence of natural rights. 

Thus, on this understanding, natural rights are not derived from natural law. On the contrary, natural law—the rules suited to securing our logically prior natural rights—is derived from those rights. In fact, if you look at the famous second paragraph of the Declaration, that’s exactly the order you’ll find. Jefferson sets forth the moral vision first, defined by our natural rights; only then does he set forth the political and legal order—the law—that is “instituted among Men” to secure those rights. 

Historically, of course, many have associated natural law with, and grounded it on, religious beliefs, and many still do, although the ancient Greeks, especially the Stoics, and Roman Law did not so ground it. But the American founding emerged from the Enlightenment—English, Scottish, and continental—and so is best understood as having eschewed an undue reliance on theological considerations—though I grant that on that historical question it’s a mixed record, despite the theory of the matter. 

As a practical matter, however, it would be far better if this commission emphasized natural rights and the nation’s founding principles rather than natural law, because the former does not carry what many today see, not without reason, as the “baggage” of the latter. I presume that we all want a world that respects liberty, including religious liberty, not one that restricts our freedoms. That is what animated us at Cato’s Center for Constitutional Studies as the same-sex cases were coming along. Thus, we filed amicus briefs with the Supreme Court defending, on equal protection grounds, the liberty of same-sex couples to marry and, after that, the liberty of bakers and others, on religious freedom grounds, to decline to participate in various ways in same-sex weddings. In both cases, the principle was the same—liberty. 

As I intimated in Friday’s post, albeit with a focus on aberrations that have arisen from modern “human rights” thinking, this commission, properly staffed and conducted, affords an opportunity to redirect our public debate to America’s first principles—and to do so on many issues. Given the state of liberty today around the world, the concerns raised so far about this commission should be seen not as something to be countered but to be embraced. There will be close calls, to be sure, and some differences. But in the end, those raising the concerns and those calling for fresh thinking should be focused on the same thing—the liberty that natural rights are all about. 

Natural Rights vs. Human Rights: The State Department’s New Commission on Unalienable Rights

Yesterday afternoon we learned from Politico that the State Department had just “quietly published” in the Federal Register a notice that the department intends to establish a Commission on Unalienable Rights. Its aim, as the notice states, is to

provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.

The Politico report goes on to cite human rights activists and former State Department officials worrying “that talk of the ‘nation’s founding principles’ and ‘natural law’ are coded signals of plans to focus less on protecting women and LGBT people.” And critics note also, correctly, that “the Trump administration’s record on human rights so far is spotty at best.”

Still, properly undertaken, this commission could help correct confusions at the core of modern human rights thinking and policy, many of which were highlighted in a new book we featured at a Cato forum a year ago, Aaron Rhodes’ The Debasement of Human Rights: How Politics Sabotage the Ideal of Freedom. Shortly thereafter, Dr. Rhodes and I summarized those issues with a piece at National Review.

In a nutshell, the modern human rights movement took shape in the aftermath of World War II, with the creation of the United Nations and the drafting of the U.N.’s 1948 Universal Declaration of Human Rights. As we wrote in the National Review piece:

Arising from political compromises between post-war progressives and some of the world’s worst tyrannies, the UDHR bows simply to “inherent dignity,” making no mention of natural law or natural rights. To be sure, it lists rights in that tradition. But it goes on with a list of so-called economic and social rights — to jobs, housing, “periodic holidays with pay” — which today dominate human-rights debate and practice.

Unlike natural rights to freedom, which require only that we be left alone, these economic and social rights, if rights at all, are not universalizable. They’re created by legislatures, requiring endless redistributive schemes. And as demand for them grows, governments grow and liberty yields. More sinister still, the original compromises that elevated these rights to the status of human rights have enabled totalitarian regimes to sit at the human-rights table. After 70 years, a toxic hypocrisy poisons the debate. Russia, China, Cuba, Islamic theocracies, even North Korea boast about their often illusory economic and social programs as evidence of human-rights compliance and their own legitimacy.

We have here, in short, a textbook example of how confused thinking, coming out of the Progressive Era, has led to confused policy, and worse. In fact, the Politico article notes that Kiron Skinner, Secretary of State Pompeo’s director of policy planning and the commission contact listed in the Federal Register notice, “drew criticism recently for seeming to suggest that China, a rising power, is such a fundamentally different culture from the United States that arguments about human rights may not have much effect in dialogue with Beijing.”

But there is truth in that suggestion. As I showed in a chapter on China’s Constitution in Cato’s 1998 book, China in the New Millennium, unlike in the natural rights tradition, which begins with the individual, the socialist tradition—and, in fact, progressivism too—begins with the group, its agenda carried out, in countries like China, through the Communist Party. On that understanding, “human rights” are not innate and unalienable but rather are a function of that starting point. Thus, as I wrote in that chapter, “a careful reading of [the Chinese Constitution] will show that the ‘law’ provides virtually no protection for individual rights, notwithstanding its use of the language of rights.” Indeed,

Article 51 sets out a general defeasance clause: “Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society, or of the collective.” Given that those “interests” are boundless in principle, and vague besides, any claims that individuals might have against the state can always be trumped as a matter of constitutional law. It should hardly surprise that the Constitution elevates the interests of the state above the rights of the citizen. After all, the whole point of the Constitution is to order affairs—including the affairs of individual citizens—toward the goal of building socialism. Given that all-encompassing end, it stands to reason that individuals should not be permitted to act in ways that might compromise the end. In fact, when they do, their acts are branded as “counterrevolutionary” and subject to suppression (Article 28).

If this new commission can refocus America’s human rights thinking and policy on America’s first principles, grounded in our unalienable natural rights, the implications are far reaching, not only for the rest of the world but for America itself.

Trump’s “Trade Aid” Takes Road to Serfdom Paved by Congress

In early 2018, President Trump imposed duties on steel and aluminum imports under patently false pretenses. Despite overwhelming evidence to the contrary, Trump declared that the tariffs were required to ensure commodity supplies “necessary for critical industries and national defense.” In fact, military demand for steel and aluminum represents only a small fraction of U.S. production. Furthermore, our top source for these imports—by a significant margin—is Canada, a country whose industrial base is legally incorporated into U.S. defense planning.

Predictably, our trade partners retaliated with tariffs on almost 800 agricultural goods exported by the U.S., worth roughly $26 billion. To assist agricultural producers harmed by the president’s trade war, the Trump administration last week announced that it would distribute up to $14.5 billion in direct payments to “great patriot” farmers. Last week’s announcement occasioned the second round of so-called “Market Facilitation Program” payments—in 2018, the administration made available $10 billion for the same purpose.

Trump, therefore, regulated domestic agricultural producers out of $26 billion, and then he gave them $24.5 billion in direct payments as compensation (among other announced measures). Big Brother’s right hand gives what his left hand takes.

In achieving this gross inefficiency, Trump’s policymaking tools were the phone and pen, which he wielded with obvious insincerity. Indeed, this is the sort of untruthful central planning typically associated with authoritarian leaders in banana republics, albeit on a far lesser scale. Yet it is occurring here in America, renowned the world over as a beacon of freedom and economic liberty.

How did this happen?

Though the Constitution accords the legislative branch plenary power to impose tariffs and spend public money, Congress possesses wide latititude to delegate these functions to the president and his subordinates. Regarding President Trump’s “national security” tariffs, I previously observed in The Hill:

Although Article I of the Constitution grants the legislature the exclusive authority “to lay and collect” tariffs, Section 232 of the Trade Expansion Act of 1962 gives this power to the president to protect “national security.”

Congress failed to define the term “national security,” however, leaving that determination to the president. Nor did Congress confine the available remedies, merely calling for such decisions to be made “in the judgment of the President.”

Why would Congress give away the farm? The 1962 law was passed at the height of the Cold War, when national security issues were paramount in national politics. Relative to now, lawmakers also harbored greater faith in presidential self-restraint.

In line with these expectations, previous presidents rarely tapped their Section 232 powers to impose import restrictions and never for a product other than petroleum.

Well, the Cold War ended, but the law remained on the books. Then Trump came along…

All Trump had to do was dust off the 1962 statute and, ultimately, issue a proclamation announcing the tariffs.

Federal law, moreover, long has given the Secretary of Agriculture unfettered discretion to support virtually any farm commodity by tapping the Commodity Credit Corporation’s permanent, indefinite authority to borrow up to $30 billion from the U.S. Treasury. It’s essentially a revolving credit line: Congress annually replenishes this borrowing authority by appropriating funding to cover the Corporation’s net realized losses. While a portion of the $30 billion is dedicated by the Farm Bill, the remainder is available for discretionary use. During the Trump administration, the availability of these discretionary funds has averaged about $15 billion annually. All Trump had to do was order the Agriculture Secretary to start distributing money to “great patriot” farmers.

At the time it relinquished these powers, many decades ago, Congress was an entirely different institution. Back then, Congress tempered its delegations by competing with the president over how laws were implemented. That is, lawmakers from yesteryear jealously guarded the legislature’s institutional prerogatives. Over the last forty years, however, Congress has changed, such that party loyalty now trumps institutional pride. So long as “their guy” occupies the White House, one political party—roughly half the legislature—loses interest in oversight. Neither party caucus in Congress seeks to claw back power from the presidency, because each wants its side to exercise executive authority.

Thus, Trump was free to break the mold. Prior administrations had exercised these statutory powers intermittently, but on a drastically reduced scope and scale. As noted above, past presidents imposed “national security” tariffs six times since 1962, and only for petroleum imports. Historically, discretionary farm aid addressed natural disasters; here, it’s being used as a palliative for a Trump-made disaster.

You’d imagine that Congress would be outraged, right? Lawmakers are the clear losers. The president is issuing sweeping economic policies that, in practice, are indistinguishable from laws passed by Congress pursuant to the legislature’s core constitutional powers. And Trump is doing so in a manner that clearly conflicts with Congress’s intent. After all, if there’s no “national security” threat, then the president’s tariffs are beyond the law, and the “trade aid” is superfluous. Countenanced with so many affronts, Congress should be steamed. In prior posts, I explained how Congresses from the mid-Twentieth Century never would have stood for these sorts of shenanigans.

And yet, powerbrokers in the contemporary Congress have responded by … joining in!

For example, Senate Finance Committee Chair Chuck Grassley told reporters he would apply for “trade aid” to help his Iowa farm. And Rep. Jim Costa, Chair of the House Agriculture Livestock and Foreign Agriculture Subcommittee, issued a press release bemoaning “the troubling possibility that … the fruit and vegetable crops produced in Central California will receive a different and possibly reduced level of aid.” From the looks of this release, Rep. Costa’s primary concern seems to be whether his constituents would get enough room at the trough.

If lawmakers bothered to care, there would be plenty for Congress to oversee. The tariffs, for example, are a mess, apart from their false justification. Trump reserved for his administration the power to exempt businesses from the import duties, but the process is shrouded in secrecy. The program was simply announced, and then the Commerce Department started accepting petitions. No one knows if these variances have been used to reward political allies and punish foes.

The farmer bailout is no less opaque, which is troubling given the results of the Commodity Credit Corporation’s most recent audit. Just before the Trump administration announced the first round of trade aid, government contractors found that the Corporation’s accounting for budgetary transactions suffered from a “material weakness,” or “a deficiency … in internal control such that there is a reasonable possibility that a material misstatement of the entity’s financial statements will not be prevented, or detected and corrected, on a timely basis.” Notwithstanding this bright red flag, President Trump effectively doubled the Corporation’s fiscal responsibilities in each of the past two years.

Instead of focusing on these disconcerting regimes, the current Congress has bigger fish to fry—such as inspecting Trump’s tax returns, or investigating Hilary Clinton’s server (still!). You know, the really important stuff.

To be sure, Trump is faithlessly executing the law, in violation of his constitutional oath. At the same time, he is acting ambitiously, just as the Framers would have expected. Today’s passive Congress, by contrast, would be unrecognizable to the Founders, who had feared that “[t]he legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Far from accreting power as expected by constitutional drafters, the contemporary Congress delegates away its authority and then loses interest. Rather than compete with the president, Congress abets the president’s ambition. Therein rests the root of our present problem.

Impeach John Bolton?

“We’re not looking for regime change [in Iran]. I want to make that clear,” President Trump said Monday at a news conference in Japan, “nobody wants to see terrible things happen, especially me.” That’s good to hear, but has Trump’s National Security Advisor gotten the message?

It’s the undeterrable John Bolton, after all, who’s been at the epicenter of the rumors of war plaguing Washington in recent weeks. It’s Bolton who ordered up a Pentagon plan for “retaliatory and offensive options” to check Iran, including a 120,000 troop surge to the region, and Bolton who blustered that a recent carrier-strike-group deployment signaled America’s willingness to meet any Iranian challenge with “unrelenting force.” 

Trump is said to be frustrated by his aide’s brinksmanship, privately cracking that “if it was up to John, we’d be in four wars now.” “In recent days,” the New York Times reports this morning, “the disconnect between Mr. Trump and his national security adviser has spilled over into public,” with the president undercutting Bolton on Iran and North Korea. But Bolton still has his job. Ironically enough, it turns out that the longtime “Apprentice” host is gun-shy about firing people.  

Is there anything Congress can do about a rogue presidential appointee that the president won’t fire? The progressive foreign-policy group Win Without War has an interesting proposal: they’re running a petition drive: “Tell Congress: Impeach John Bolton!”  

Can Bolton be impeached? The answer turns on whether the National Security Advisor is one of the “civil Officers of the United States” to which Article II, sec. 4 applies. The term isn’t defined in the Constitution, and there’s little precedent to go on, the House having impeached just one executive-branch official below the presidential level in 230 years: Gilded-Age Secretary of War William Belknap. As the Congressional Research Service notes, it’s something of an open question “whether Congress may impeach and remove subordinate, non-Cabinet level executive branch officials.” 

Still, the fact that Bolton, unlike a Cabinet secretary, doesn’t hold a Senate-confirmed position is a technicality that shouldn’t protect him, especially when it’s clear—even to the president—that his recklessness might drag us into an unnecessary war. Impeachment arose in England as a means of striking ministers close to the Crown, including those who gave “pernicious” foreign policy advice. Early American constitutional commentators like William Rawle and Justice Joseph Story believed the power extended to “all” federal executive officers. And as James Madison explained in the first Congress: “If an unworthy man be continued in office by an unworthy president, the house of representatives can at any time impeach [that officer], and the senate can remove him.”

In practice, it’s rarely been necessary to go that far. “The issue has almost invariably proven moot,” Frank Bowman explains in his comprehensive new volume High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. Historically, “any appointee whose continued service was so politically toxic as to provoke a serious effort at impeachment has been shuffled off the stage” when the president demands his or her resignation.

A resolution to impeach Bolton, something any member of the House could introduce, might serve as the shot across the bow that convinces Trump it’s time to clean his own house. It needn’t make it to the floor to be effective: merely securing enough cosponsors could be enough. On the other hand, such a move might cause Trump to dig in his heels—with a president this mercurial it’s hard to tell.

Amash Note on Impeachment

On May 18, in the first of three long Twitter threads, Rep. Justin Amash (R-MI) announced his conclusion that “President Trump has engaged in impeachable conduct.” That tweetstorm unleashed a… different kind of storm from his fellow Republicans. The self-styled House Freedom Caucus voted unanimously to condemn Amash, an irate Michigan state rep. announced he’d challenge the congressman in the GOP primary, and, of course, there was President Trump, fuming that Amash is “a total lightweight” and “a loser who sadly plays right into our opponents hands!”  

About the only GOP officeholder with anything nice to say was Sen. Mitt Romney (R-UT). Romney made sure to emphasize his disagreement with Amash, but praised him for “a courageous statement.” Coming from the on-again, off-again Trump critic, “courageous” sounded a bit like a tell (subtext: “I wish I had the guts!”).

Whatever one thinks of President Trump or the other personalities involved, the scope of high crimes and misdemeanors is a constitutional question, and shouldn’t be analyzed through a Red or Blue lens. As I argue in my recent Cato study on impeachment, Indispensible Remedy, if you raise the bar to save a president you like—or lower it to nail one you hate—you may come to regret it when power changes hands.

Amash, who’s long used social media to explain the constitutional reasoning behind the positions he takes, makes a number of claims about the scope of Article II, section 4. As it happens, he has a better grasp of the constitutional issues surrounding impeachment than most of his colleagues on both sides of the aisle. I’ll highlight and elaborate on a few of his key points below. 

Trump Isn’t Only “Constitutional Crisis” Afflicting Congressional Oversight

Earlier this week, Vox’s Sean Illing asked 10 law professors whether President Trump’s sweeping refusal to cooperate with congressional investigators has plunged the nation into “a constitutional crisis.”  I recommend the article, and I also observe that I’m 100% on Congress’s side regarding the legitimacy of its information queries. Indeed, I’m with my colleague Gene Healy, who has rightfully Tweeted that, “#ExecutivePrivilege is something judges just made up out of penumbras and emanations of Article II.”

For this post, however, I argue that congressional oversight, per se, is in its own state of “constitutional crisis” wholly independent from Trump. Specifically, I will make two claims. First, I explain why congressional oversight always has been sub-optimal. Then, I explain why contemporary oversight is acutely awful.

Even decades ago, when Members of Congress were policy savants relative to now, congressional oversight was known as the body’s “neglected duty.” In a famous 1984 article, Professors Mathew McCubbins and Thomas Schwartz lent a conceptual framework to explain this inadequacy. Their core insight was to identify two types of congressional behavior regarding oversight. The first was the “police patrol,” which describes ongoing monitoring of the law’s execution. The second type was “fire alarm” oversight, by which the professors meant that lawmakers snap to attention only when hot-button issues become sufficiently politicized.

Quite obviously, the “police patrol” method is superior because, if it is done faithfully, then such supervision could head off the crises that lead to “fire alarms.” Nevertheless, the “fire alarm” approach takes less work, and it reaps more political currency in the form of attention. Due to these incentives, Congress has underinvested in oversight for as long as legislators have delegated power to execute the law.

In this manner, oversight was shortchanged in Congress during the first three quarters of the Twentieth Century. Back then, however, a decentralized power structure within the legislature provided a counter-incentive for the use of preferable “police patrol” techniques. As I explained in a prior post, Members of that period cared about policy because policy chops were necessary to succeed in Congress. At that time, committees and subcommittees competed with the president to manage administrative agencies, and, as with life generally, competitors do their homework.

Starting in the 1980s, however, power in Congress shifted from committees to party leadership. Many factors were at play in causing this change. Crucially, congressional leaders, such as Reps. Tip O’Neil and Newt Gingrich, altered the rules to facilitate centralization. The modernization of mass media played another important role, in that it allowed to party leadership to push a national message. Finally, recurrent impasses with the president over spending and budgets—known as the “fiscalization” of politics—facilitated the centralization of power by creating the necessity for high-level negotiations, which, naturally, would be conducted by congressional leaders and thereby enhanced their power accordingly.

Due to this shift, partisan affinity now trumps institutional prerogative, such that one party loses interest in oversight whenever “their guy” occupies the White House. Also due to the shift to centralized power, Members of Congress know less about policy-making because there’s little incentive to have such knowledge. Each of these factors works to undermine the occasion and performance of “police patrol” superintendence of the administrative state.

Yet the current contretemps between Congress and the Trump administration reveals that the legislature’s oversight function has withered further, such that “fire alarm” investigations, too, are falling by the wayside. To be precise, they’ve altered from an inferior form of oversight (relative to “police patrols”) to a worthless form.

Historically, “fire alarm” oversight pertained to catastrophes or governing scandals. In either case, the investigatory lodestar was reform. That is, congressional investigations traditionally sought to discern how something bad happened, and then how to try to make sure it doesn’t happen again. Even investigations that don’t easily fit this usual framework—such as Watergate—shared a nexus with governmental reform. Nixon’s excesses inspired institutional responses, including the 1974 Budget and Impoundment Control Act and the 1977 Legislative Reorganization Act.

As I survey the current landscape of fire-alarm investigations, I see a qualitatively different application in the present day. When it comes to resource allocation for oversight, I can think of any number of “fire alarms” to sound, including:

  • The reported possibility of war (!!) with Iran;
  • The president’s declaration every other day of a fake “national emergency” to get what he wants without Congress getting in the way; and,
  • The EPA sneaking a major New Source Review regulation into the (unrelated) revision of an Obama-era climate rule.

Despite these—and many more—worthy targets for serious congressional oversight by opponents of the Trump administration, House leadership is pouring resources into getting Trump’s tax returns and relitigating the Mueller Report. I find Trump as off-putting and dangerous as anyone, but these strike me as the silliest possible subjects for oversight.

On the one hand, I think these investigations don’t inform anyone. Who doesn’t think Trump would fire subordinates—and then Tweet about it—to head off an investigation? And who doesn’t think Trump exaggerates his wealth all the time? Notwithstanding these qualities, which are baked into Trump’s brand, the American people elected him president, alas. The upshot is that I’m not convinced that these investigations bring much new to the table.

More importantly, I fail to see any prospect for reform. Neither of these investigations bears any relationship to a specific policy outcome. It’s all about Trump, the man, and none about Trump, the policymaker. Nor am I sanguine about the prospect that these investigations ultimately could inspire institutional reforms the way that Watergate did. Well into the third year of this presidency, I have not once seen the democrats reach out to Never-Trumpers to explore curbing the power of the office. Instead, the majority in the House seems to want only to damage Trump politically, and otherwise maintain the president’s power for when their party takes control.

In sum, I wholeheartedly support Congress’s right to information from President Trump, but I also bemoan its present use of that right.

The Supreme Court Finally Takes Up a Second Amendment Case

New York City has a law banning the transportation of licensed handguns out of the city, which isn’t the minor issue it may seem at first glance. When the Supreme Court agreed to take it up in late January, it broke a decade-long silence on the Second Amendment—no cases on the scope of the right since District of Columbia v. Heller (2008) declared an individual right to keep and bear arms. That means this odd little case about a dumb city law may set the standard for how all Second Amendment cases are handled going forward, after the lower courts have spent the last decade trying to restrict the right as much as possible.

New York City’s bizarre ordinance bans pistol permit holders from taking their firearms beyond the five boroughs. (The irony seems to be lost on the eminently anti-gun municipality, which one would think wants as many guns to leave as possible). A group of residents who own handguns and want to transport them outside the city for a variety of reasons—to take them at another residence upstate, to compete and shoot out-of-state, and any other manner of otherwise lawful activities—brought a lawsuit. They lost in the district court, and again in the U.S. Court of Appeals for the Second Circuit, which claimed to apply some level of heightened scrutiny, but in actuality just rubber-stamped the city’s invocation of “public safety.”

Because Cato is concerned with the slipshod way in which Second Amendment claims have been handled in the various courts of appeal throughout the country since Heller, we have filed an amicus brief supporting these plaintiffs before the Supreme Court.

The lack of a clear standard of review in the Second Amendment context has encouraged the development of an unintelligible and wildly divergent body of law. The Supreme Court must establish clear ground rules for evaluating right-to-arms claims and enable the lower courts to develop a coherent, consistent approach to resolving the array of issues that will continue to arise: carry rules, new firearms technology, ammunition/magazine restrictions, licensing schemes, and the like.

Lower courts should engage in an informed analysis based on constitutional text, history, and tradition. Not buzzwords, not a thumb on the scale for states and municipalities. One of the greatest aspects of the American system of government is that the scope of our rights do not change over time (unless the Constitution is amended). They were quite deliberately fixed at the time of the Founding, and then again after a bitter Civil War. Using modern developments and evidence-free security claims as a reason to restrict the rights of law-abiding citizens to armed self-defense is inconsistent with our Constitution.

The Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. City of New York in October, after it returns from its summer break.

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