Topic: Law and Civil Liberties

Due Process Victory for Concealed Carry Permit Holder

That’s the outcome in the Second Circuit (full decision here), where a Connecticut man who has held a concealed handgun permit since 1982 was given the run-around when he tried to renew it, prompting a year-and-a-half of delay.

In March 2007, Kuck applied to DPS to renew his permit to carry a firearm. He was subsequently contacted by Defendant Albert J. Masek, an employee of DPS, who requested that Kuck provide a U.S. passport, birth certificate, or voter registration card in support of his renewal application…

Kuck objected to the requirement, arguing that he had submitted proof of citizenship when he first applied for a permit in 1982 and, over the subsequent 25 years, had never before been asked to provide such proof with a renewal application. He claimed then, as he does now, that the DPS requirement was arbitrary, designed to harass, and, in any event, not authorized by state law. Ultimately, he refused to provide the requested documents. As a result, DPS denied his renewal application.

Why the additional citizenship inquiry?

Notably, at the time of his renewal application, Kuck was the Secretary of the [Board of Firearms Permit Examiners]. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.

Kuck alleges that, since his appointment, the estimated waiting-period for a hearing has increased dramatically, and that the Board Chairman, Christopher Adams, opposed his efforts to speed up the appeals process. He contends that DPS and the Board have acted to burden gun-owners’ ability to obtain carry permits by improperly denying applications in the first instance and then subjecting applicants to unjustified and prolonged appeals…

It appears that being critical of the discretionary licensing process can earn you extra scrutiny from bureaucratic overseers.

As I’ve said previously (and before that), enforcement of the right to bear arms against the states will force them to abandon discretionary “may-issue” permitting regimes. Where Due Process is owed, Due Process shall be honored.

Chavez Arrests the President of Globovision Television

Today, the Venezuelan government arrested Guillermo Zuloaga, president of Globovision Television, the only remaining television on public airwaves critical of Hugo Chavez. According to the government, Zuloaga made offensive comments about Chavez (which is against the law in Venezuela) while speaking at a conference of the Inter-American Press Association (IAPA) in Aruba, where media representatives criticized the Venezuelan regime’s crackdown on freedom of speech.

Globovision and Zuloaga have been under constant harassment from the government, and Chavez has promised to close the station. Last July, Cato held a forum in Washington on “Venezuela’s Assault on Freedom of the Press and Other Liberties,” which was to feature Zuloaga. After the event was announced, however, a politically directed court prohibited him from leaving the country. So Zuloaga taped this 3 minute video address to the Cato audience and sent his son and vice president of Globovision, Carlos, to take his place.

Robert Rivard of the IAPA also spoke at the forum. You may also see various short videos prepared by Globovision for the forum starting here.

“It is becoming a crime to have an opinion.” That’s how Carlos Zuloaga summed it up this afternoon when he referred to this incident and the recent arrest of former Venezuelan state governor Oswaldo Alvarez Paz for having said during a Globovision interview that Venezuela has become a drug-trafficking haven.

How will hemispheric leaders and the Organization of American States react to this renewed attack on free speech in Venezuela?

Ramming Through Radical Nominee Takes Back Seat to Ramming Through Obamacare

Senate debate on the health care reconciliation bill forced Democrats to postpone yesterday’s hearing for Goodwin Liu, President Obama’s controversial nominee to the Ninth Circuit (which covers the western states).  Senate Judiciary Committee chairman Patrick Leahy accused Republicans of “exploiting parliamentary tactics and Senate Rules” – GOP senators have stopped consenting to afternoon hearings for the duration of the health care debate – to delay Liu’s appointment “at the expense of American justice.”

Nothing could be farther from the truth.  Despite the postponement, Liu’s confirmation is proceeding at breakneck speed.  His hearing was scheduled only 28 days after his nomination, while the average Obama appointee waited 48 days for a hearing and the average Bush appointee waited 135 days.  And Senate Democrats themselves cancelled all hearings Tuesday afternoon so they could attend the ObamaCare signing ceremony at the White House.

Moreover, Leahy’s intent is not so much to urge the timely vetting of judicial nominees, but to further the government’s Blitzkrieg takeover of civil society – before the Democrats’ congressional majorities turn into pumpkins this November.  As Liu stated in a January interview with NPR, “now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.”

According to Liu, that progressive vision includes constitutional rights to health care, education, housing, and welfare payments.  Liu states outright that “rights to government assistance” are “essential to liberty.”  He defends this contradiction by claiming that “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.”

Liu’s hearing before the Senate Judiciary Committee thus concerns much more than a seat on a federal appellate court (just when you thought the Ninth Circuit couldn’t get more radical).  The Washington Post has noted that the hearing might serve as a test of Goodwin Liu as a Supreme Court nominee.  With so much potentially at stake, postponing Liu’s hearing to ensure it receives the Senate’s undivided attention – and any other legal method of stopping or delaying by even one day his ascension to the bench – serves “American justice” rather than betraying it.

Free Speech in Canada

Free speech isn’t exactly free in Canada, and even Glenn Greenwald and Mark Steyn agree on this point. When conservative commentator Ann Coulter (who can be uncivil, but shouldn’t be muzzled by the state for it) tried to give a speech at the University of Ottawa, she was warned by the political correctness police not to hurt anyone’s feelings:

I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or “free speech”) in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.

You will realize that Canadian law puts reasonable limits on the freedom of expression. For example, promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges. Outside of the criminal realm, Canadian defamation laws also limit freedom of expression and may differ somewhat from those to which you are accustomed. I therefore ask you, while you are a guest on our campus, to weigh your words with respect and civility in mind… .

So much for inalienable rights.

Steyn highlights the view of the lead investigator of Canada’s “Human Rights” Commission: “Freedom of speech is an American concept, so I don’t give it any value.”

I would offer a rebuke, but Ezra Levant has done it better than I ever could. Crank your volume up, sit back, and enjoy:

Dealing with Police

Yesterday Cato hosted the premiere screening of the new film, 10 Rules for Dealing with Police, produced by our friends at Flex Your Rights. The Washington Post has a nice piece about the film and event here. And the Washington Examiner covered the event here.

10 Rules is a gold mine of useful information (both legal and practical) for handling police encounters.  Legal books are too often impenetrable and just too time-consuming for laypersons. 10 Rules is a media-savvy vehicle that can alleviate the problem of constitutional illiteracy in America.

In less than 45 minutes, you acquire the information you need to know.  Get the dvds and encourage others to show them at high schools, colleges, and other venues.

Catch the trailer below:

Is the Health Care Lawsuit For Real?

The Hill asked me the following question:

Thirteen state attorneys general have filled a lawsuit claiming that the new healthcare reforms are unconstitutional.  Is this a real legal challenge or a political stunt?

Here’s my response:

The challenge is very real—and necessary—but we are in uncharted territory here so it’s difficult to predict how courts will react.
 
The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government—or any other—tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power – not even during the height of the New Deal, when the Supreme Court ratified Congress’ regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.
 
The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress’ enumerated powers without adding to them. In short, if the challenges to this health care “reform” fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.

You can read here the responses of other pundits – including several non-lawyers, curiously.

The States Respond to ObamaCare

Today Politico Arena asks:

Do the 13 state attorneys general have a case against ObamaCare?

My response:

Absolutely.  It will be an uphill battle, because modern “constitutional law” is so far removed from the Constitution itself, but a win is not impossible.  There are three main arguments.  (1) Under the Constitution, as properly interpreted, Congress has no power to enact such a plan.  (2) The plan conscripts state governments into carrying out and paying for federal mandates.  And (3) the individual mandate amounts to an unlawful capitation or direct tax.

The first argument will almost certainly lose, because under post-1937 readings of the Commerce Clause, Congress can regulate anything that “affects” interstate commerce, which at some level is everything.  Under modern “constitutional law,” that’s what we’ve come to – under the pressure of FDR’s infamous Court-packing scheme, a Constitution authorizing only limited government has been turned into one that authorizes effectively unlimited government.

The second argument has promise: In New York v. United States (1992) and Printz v. United States (1997) the Court held that the federal government could not dragoon state legislatures or executives into carrying out and paying for federal programs.  Yet that is just what’s at issue here with the “exchanges” that states are required to establish.  To be sure, the states can “opt out,” but as yesterday’s suit argues, with so many people already on the Medicaid rolls, that option is effectively foreclosed.  Indeed, the new bill will force millions more on to the Medicaid rolls, which is one of the main reasons these states, already strapped by Medicaid expenditures, have brought suit.  Florida alone estimates that the added costs will grow from $149 billion in 2014 to $938 billion in 2017 to over one trillion dollars by 2019.

The third argument holds the most promise.  ObamaCare compels individuals to buy insurance from a private company (why stop there? why not cars from GM?), failing which they will be required to pay a tax (fine?).  This is an unprecedented expansion of Congress’s power “to regulate interstate commerce.”  But even if it were to pass the modern Commerce Clause test, the tax should fail because it’s not apportioned among the states in accordance with their population.

Let’s be clear, however.  This suit was brought because the 13 states (and I predict more will follow) see the handwriting on the wall.  ObamaCare will mark the effective end of federalism as we’ve known it, will bankrupt the states, and, because of that – here’s the clincher – is but a  stalking horse for federal single-payer health care in America.  This suit will keep the issue alive until November, when the American people will have a chance to weigh in.