Topic: Law and Civil Liberties

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.

Khalid Shaikh Mohammed on Trial

The Council on Foreign Relations’ Steven Simon makes a difficult case, and he makes it well, regarding the Justice Department’s decision to try Khalid Shaikh Mohammed in a civilian court in New York City. I agree with his bottom line:

no trial can provide closure for the traumas of that day. But a judgment in New York, where the greatest suffering was inflicted, will remind us both of the narrow viciousness of the terrorists’ cause and of the enduring strength of our own values.

I say again, this is not an easy case to make, and not just because of the emotions involved. Most people have already made up their mind that 1) KSM is undeserving of such treatment (the same could be said of most mass murderers); 2) that the risks posed to national security by a public trial (including the possibility of an acquittal and the potential disclosure of sensitive information) are not outweighed by the benefits; and 3) that AG Eric Holder made this decision in a haphazard manner, and for all the wrong reasons.

But I think that Simon renders a great service in making Holder’s argument, and, indeed, in making it better than the AG did.

My objectivity can be called into question: Steven has spoken at Cato a few times, and he was and is a participant in our ambitious counterterrorism project. I have enormous respect for his expertise on such matters.  

But I submit that anyone who reads Simon’s op-ed with an open mind must concede at least some of his points, and therefore further conclude that some of the criticisms of the decision are unfair. That does not mean that Simon will ultimately change a lot of minds. One might still conclude that, on balance, the DoJ’s decision was unwise, and that KSM should have been tried by a military tribunal, or merely detained forever. In truth, I was leaning in that direction before I read the piece.

But, on reflection, my confidence in our system of government and in the rule of law leads me to believe that Simon has it right. To the extent that KSM is given a forum for propagandizing on behalf of al Qaeda, the net effect of his rantings will be to remind the entire world that AQ is nothing more than a bunch of self-important, murderous SOBs who kill innocent people.

Nothing more, nothing less.

How Will the Court Vote on “Incorporating” the Second Amendment?

Yesterday I described the brief Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court – asking the Court to apply the individual right to keep and bear arms to the states.

Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause.  (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.

As George Will would say: Well. Orin could turn out to be right, but I think his analysis is too simplistic. I was just about to write my response when I saw that Josh Blackman, with whom I have a law review article forthcoming on these issues, already said it best in the comments to Orin’s post:

First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Finally, fellow Volokh conspirator Randy Barnett (and Cato senior fellow) also disagrees with Orin, offering this perspective:

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

In short, Orin’s legal realism/conventional wisdom may turn out prescient – and all the rest of us are engaged in a quixotic originalist/libertarian crusade – but I’ll put my money elsewhere.

Beyond Parody

A former soldier in England has been arrested and convicted (and may even go to jail for five years) because he found a gun in his yard and he turned it over to the police. I presume this is in part a reflection of the anti-gun ideology embedded in UK law, but don’t prosecutors and judges have even a shred of discretion to avoid foolish prosecutions and/or protect innocent people from absurd charges? Here is the news report:

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for “doing his duty”. Paul Clarke, 27, was found guilty of possessing a firearm at Guildford Crown Court on Tuesday – after finding the gun and handing it personally to police officers on March 20 this year. The jury took 20 minutes to make its conviction, and Mr Clarke now faces a minimum of five year’s imprisonment for handing in the weapon. In a statement read out in court, Mr Clarke said: “I didn’t think for one moment I would be arrested.”

… The court heard how Mr Clarke was on the balcony of his home in Nailsworth Crescent, Merstham, when he spotted a black bin liner at the bottom of his garden. In his statement, he said: “I took it indoors and inside found a shorn-off shotgun and two cartridges. “I didn’t know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him. “At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall.” Mr Clarke was then arrested immediately for possession of a firearm at Reigate police station, and taken to the cells.

… Prosecuting, Brian Stalk, explained to the jury that possession of a firearm was a “strict liability” charge – therefore Mr Clarke’s allegedly honest intent was irrelevant. Just by having the gun in his possession he was guilty of the charge, and has no defence in law against it, he added.

… Judge Christopher Critchlow said: “This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge. “The intention of anybody possessing a firearm is irrelevant.”

John Yoo on Civilian Trials for Terrorism Cases

Yesterday, the Wall Street Journal published an article by John Yoo that criticized the Obama administration’s decision to prosecute Khalid Sheik Mohammed (KSM) and several of his fellow Guantanamo prisoners in civilian court.  Yoo makes too many claims for me to respond to in a blog post, but let me address a few.

According to Yoo, “The treatment of the 9/11 attacks as a criminal matter rather than an act of war will cripple American efforts to fight terrorism.  It is in effect a declaration that this nation is no longer at war.”  That is an odd thing to say for several reasons.  First, it is all over the news: We are still very much at war.  Second, even if Obama pulled U.S. troops out of Afghanistan and Iraq, would the United States really be “crippled” in the fight against bin Laden?  ”Crippled”  suggests the U.S. is on the verge of joining Costa Rica or Belize in terms of our military strength.  Farfetched.  Third, the Bush administration also treated the 9/11 attacks as a criminal matter when it indicted and prosecuted Zacarias Moussaoui in civilian court.  Yoo seems to think that that call was mistaken, but did it ”cripple” the U.S.?  Did the Bush administration, in effect, declare that the U.S. was “no longer at war”?  Of course not.  So why does Yoo make that claim now?  Odd.

Next, Yoo complains that by bringing KSM to New York for a civilian trial, the prisoner will get to “enjoy the benefits and rights that the Constitution accords to citizens and resident aliens.”  This is another odd statement because the benefits of a civilian trial (public trial, jury trial, calling witnesses, confronting adverse witnesses, etc) are not limited to citizens and resident aliens.  After all, Asian tourists and illegal immigrants from Mexico, to take two examples, are not “citizens” or “resident aliens.”  If a federal prosecutor were to accuse them of a crime, they would get a trial in civilian court.  A claim that the government could deny, say, a nonresident alien from China a civilian trial would be totally at odds with American constitutional law.  Yoo may disagree with that law, but if he does, he should have made that clear because he left a misleading impression.

Third, Yoo calls the Moussaoui trial a “circus” because it provided Moussaoui with a “platform to air his anti-American tirades.”  Well, to start, just because Yoo calls a trial a “circus” does not make it so.  The federal judge in the Moussaoui case did what we would expect a good American judge to do–that is, give the person who is accused of the crime a fair opportunity to speak and to offer a defense.   At the same time, the  judge must maintain order in the courtroom and anyone who becomes disruptive (including the accused) can be removed.  The potential problem of  a “tirade” is nothing new and is not, of course, limited to persons who share bin Laden’s twisted worldview.  Some recent examples include the Unabomber and the shooter at the Holocaust museum.  In short, it is a weak argument to critique our system of civilian trials because the defendant may want to insist on saying something that is unpopular, unpleasant, or incoherent.  And, at the time of sentencing, a trial judge can respond, as Judge William Young did when he sentenced Richard Reid to life behind bars.

For more on the subject of military commissions, go here and here.  For more on John Yoo, go here and here.