933 (Author at Cato Institute) https://www.cato.org/rss/people/933 en Ilya Shapiro discusses New York State Rifle and Pistol Association v. City of New York on Newsy https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-new-york-state-rifle-pistol-association-v Fri, 29 Nov 2019 10:22:43 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-new-york-state-rifle-pistol-association-v Ilya Shapiro discusses the limits of separation of church and state in 1A on KPCC’s AirTalk with Larry Mantle https://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-limits-separation-church-state-1a-kpccs Mon, 25 Nov 2019 11:48:02 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-limits-separation-church-state-1a-kpccs Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present https://www.cato.org/multimedia/events/repugnant-laws-judicial-review-acts-congress-founding-present Keith E. Whittington, Gregg Ivers, David E. Bernstein, Ilya Shapiro <p><em>Repugnant Laws</em> provides a political history of how the Supreme Court has exercised the power of judicial review over federal legislation from the adoption of the Constitution to the present. The book draws on a first-of-its-kind comprehensive inventory of every case in which the court has substantively reviewed the constitutionality of a provision of federal law and either upheld the application of that statute or refused to apply it due to constitutional limits on congressional authority. The book makes use of the publicly available Judicial Review of Congress Database to reexamine how aggressively the court has enforced limits on congressional power over time. It also reevaluates the political relationship between the court and the elected branches of the federal government and revises our understanding of the history of American constitutional law. As battles over the future of the Supreme Court heat up, join us for a discussion of the promise and limits of judicial power and the ways in which the court reflects the politics of its time.</p> Thu, 21 Nov 2019 10:23:13 -0500 Keith E. Whittington, Gregg Ivers, David E. Bernstein, Ilya Shapiro https://www.cato.org/multimedia/events/repugnant-laws-judicial-review-acts-congress-founding-present Merck v. U.S. Dept. of Health & Human Services https://www.cato.org/publications/legal-briefs/merck-v-us-dept-health-human-services Sean Marotta, Kirti Datla, Ilya Shapiro, Dennis Garcia <div class="lead text-default"> <p>Pharmaceutical companies rely on direct-to-consumer advertisements to reach potential customers and extoll the benefits of their medications. This type of &ldquo;commercial speech&rdquo; enjoys protection under the First Amendment, though not to the same degree as other forms of expression. <em>Merck v. HHS</em> tests the limits of the federal government&rsquo;s ability to control and compel commercial speech.</p> </div> , <div class="text-default"> <p>Several drug manufacturers and a professional organization of advertisers, whose businesses are affected by a Department of Health and Human Services rule requiring direct-to-consumer television ads to include a disclosure of the wholesale price of the advertised drugs, sued to block the rule. This rule was promulgated through the Centers for Medicare and Medicaid Services and justified under the power given HHS by the Social Security Act to issue rules &ldquo;necessary to the efficient administration&rdquo; of those programs&mdash;on the theory that the disclosures would result in lower prices for Medicare and Medicaid recipients. This regulation requires the wholesale acquisition cost of a 30-day supply of any advertised drug to be featured on any TV ad.</p> <p>Part of the freedom of speech, however, is the right not to speak against one&rsquo;s will. In particular the notion of being forced to read from a state-drafted script against one&rsquo;s beliefs or interests is anathema to the founding conception of discourse in a free society. In the field of commercial speech, there is only a narrow allowance for compelled speech to ensure that consumers are not misinformed or mislead in their purchasing decisions&mdash;in other words, to prevent the fraud that isn&rsquo;t protected by the First Amendment. The price-disclosure regulation threatens to widen this exception so far as to allow the government to use compelled speech as a substitute for regulation, in this case regulating drug prices themselves.</p> <p>The district court held that mandating disclosure of wholesale drug prices exceeds the agency&rsquo;s rulemaking authority under the Social Security Act. Now on appeal, the government is again attempting to defend its regulation as not violating the First Amendment.</p> <p>Cato has filed an amicus brief supporting the challengers in the U.S. Court of Appeals for the D.C. Circuit. We argue that accepting the government&rsquo;s First Amendment arguments would stretch the jurisprudence allowing greater regulation of commercial speech farther than ever before and encourage compelled speech as a convenient alternative to normal regulation. If HHS prevails, agencies may decide it&rsquo;s better to force private parties to act as government mouthpieces, instead of expending their own resources and political capital to further regulatory aims.</p> </div> Tue, 19 Nov 2019 15:40:11 -0500 Sean Marotta, Kirti Datla, Ilya Shapiro, Dennis Garcia https://www.cato.org/publications/legal-briefs/merck-v-us-dept-health-human-services Government Tries to Regulate Drug Prices by Violating the First Amendment https://www.cato.org/blog/government-tries-regulate-drug-prices-violating-first-amendment Ilya Shapiro, Dennis Garcia <p>Pharmaceutical companies rely on direct-to-consumer advertisements to reach potential customers and extol the benefits of their medications. This type of “commercial speech” enjoys protection under the First Amendment, though not to the same degree as other forms of expression. <em>Merck v. HHS</em> tests the limits of the federal government’s ability to control and compel commercial speech.</p> <p>Several drug manufacturers and a professional organization of advertisers, whose businesses are affected by a Department of Health and Human Services rule requiring direct-to-consumer television ads to include a disclosure of the wholesale price of the advertised drugs, sued to block the rule. This rule was promulgated through the Centers for Medicare and Medicaid Services and justified under the power given HHS by the Social Security Act to issue rules “necessary to the efficient administration” of those programs—on the theory that the disclosures would result in lower prices for Medicare and Medicaid recipients. This regulation requires the wholesale acquisition cost of a 30-day supply of any advertised drug to be featured on any TV ad.</p> <p>Part of the freedom of speech, however, is the right not to speak against one’s will. In particular the notion of being forced to read from a state-drafted script against one’s beliefs or interests is anathema to the founding conception of discourse in a free society. In the field of commercial speech, there is only a narrow allowance for compelled speech to ensure that consumers are not misinformed or mislead in their purchasing decisions—in other words, to prevent the fraud that isn’t protected by the First Amendment. The price-disclosure regulation threatens to widen this exception so far as to allow the government to use compelled speech as a substitute for regulation, in this case regulating drug prices themselves.</p> <p>The district court held that mandating disclosure of wholesale drug prices exceeds the agency’s rulemaking authority under the Social Security Act. Now on appeal, the government is again attempting to defend its regulation as not violating the First Amendment.</p> <p>Cato has filed an <a href="https://www.cato.org/sites/cato.org/files/2019-11/Merck%20DC%20Cir.pdf">amicus brief</a> supporting the challengers in the U.S. Court of Appeals for the D.C. Circuit. We argue that accepting the government’s First Amendment arguments would stretch the jurisprudence allowing greater regulation of commercial speech farther than ever before and encourage compelled speech as a convenient alternative to normal regulation. If HHS prevails, agencies may decide it’s better to force private parties to act as government mouthpieces, instead of expending their own resources and political capital to further regulatory aims.</p> Tue, 19 Nov 2019 14:26:03 -0500 Ilya Shapiro, Dennis Garcia https://www.cato.org/blog/government-tries-regulate-drug-prices-violating-first-amendment Ilya Shapiro discusses impeachment procedure on CBSN AM https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-impeachment-procedure-cbsn-am Tue, 19 Nov 2019 10:56:01 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-impeachment-procedure-cbsn-am Ilya Shapiro discusses the Supreme Court's DACA case on Newsy https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-supreme-courts-daca-case-newsy Fri, 15 Nov 2019 10:46:42 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-supreme-courts-daca-case-newsy Ilya Shapiro participates in the event, "Horizontal Federalism: May States Project Their Sovereignty Beyond Their Borders?," hosted by the Federalist Society https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-participates-event-horizontal-federalism-may-states Thu, 14 Nov 2019 12:06:24 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-participates-event-horizontal-federalism-may-states Ilya Shapiro discusses the Supreme Court's DACA case on KKOB's The Bob Clark Show https://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-supreme-courts-daca-case-kkobs-bob-clark Wed, 13 Nov 2019 11:58:02 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-supreme-courts-daca-case-kkobs-bob-clark Ilya Shapiro discusses the Supreme Court's DACA case and impeachment procedure on CBSN https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-supreme-courts-daca-case-impeachment Tue, 12 Nov 2019 11:45:29 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-supreme-courts-daca-case-impeachment Ilya Shapiro discusses the Supreme Court's DACA case on WWL’s First News with Tommy Tucker https://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-supreme-courts-daca-case-wwls-first-news Tue, 12 Nov 2019 11:32:25 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-radio/ilya-shapiro-discusses-supreme-courts-daca-case-wwls-first-news Ilya Shapiro discusses the Supreme Court's DACA case on CBS This Morning https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-supreme-courts-daca-case-cbs-morning Tue, 12 Nov 2019 11:21:49 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-supreme-courts-daca-case-cbs-morning A Centenary for Free Speech https://www.cato.org/publications/commentary/centenary-free-speech Ilya Shapiro, Michael Collins <div class="lead text-default"> <p>Americans may take free speech for granted, but they couldn&rsquo;t do so a century ago. Courts convicted newspapermen, pamphleteers and politicians for nothing more&mdash;and sometimes less&mdash;than trying to sway the public against U.S. involvement in World War I. On Nov. 10, 1919, the Supreme Court affirmed the conviction of antiwar protesters under a law that made it a crime to &ldquo;hinder&rdquo; the war effort. But a dissent in <em>Abrams v. U.S.</em> laid the foundation for today&rsquo;s robust protection of controversial speech.</p> </div> , <div class="text-default"> <p>The idea that speech could pose a &ldquo;clear and present danger&rdquo; to the government, and thus lacked First Amendment protection, came from a quartet of 1919 cases, three of which were unanimous. In March, in <em>Schenck v. U.S.,</em> the court, led by archprogressive Justice Oliver Wendell Holmes Jr., upheld the convictions of pamphleteers who encouraged draft-dodging. A week later, <em>Frohwerk v. U.S.</em> upheld the conviction of a newspaperman who criticized U.S. involvement in foreign wars, while <em>Debs v. U.S.</em> affirmed the conviction of Socialist Party leader Eugene Debs for denouncing the war in a speech. (Debs went on to receive 3.4% of the 1920 presidential vote from prison.)</p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Holmes’s dissent in Abrams v. U.S. set the stage for broad First Amendment rights.</p> </div> </div> </aside> , <div class="text-default"> <p>In October the court in <em>Abrams</em> upheld another antiwar protest conviction&mdash;but this time not unanimously. Like Charles Schenck, Jacob Abrams was a socialist who had distributed antiwar pamphlets. His group criticized U.S. military support for the anti-Communist White movement in the Russian Civil War. As socialists of the time often did, the pamphleteers urged a general strike in New York, on grounds that workers were making weapons to use against their Bolshevik comrades.</p> <p>But those same weapons had an alternative&mdash;and likelier&mdash;use in the allied war effort against the Germans. The defendants were convicted under the Sedition Act of 1918, which <a href="https://www.thirteen.org/wnet/supremecourt/capitalism/print/sources_document1.html?mod=article_inline" target="_blank">made it a crime</a> to &ldquo;urge, incite, or advocate any curtailment of production ... with intent by such curtailment to cripple or hinder ... the prosecution of the war.&rdquo;</p> <p>The court affirmed the convictions over the surprising dissent of <em>Schenck</em>&rsquo;s author, Holmes, joined by Justice Louis Brandeis. It&rsquo;s unclear why Holmes put aside his majoritarian impulses to support a constitutional restriction on legislative action. Some scholars have posited that Holmes acted not out of a commitment to the Constitution but because of the disparate impact of speech restrictions on progressive icons. Even so, the dissent is steeped in libertarian ideas. It draws implicitly on John Stuart Mill and asserts that &ldquo;the best test of truth is the power of the thought to get itself accepted in the competition of the market.&rdquo;</p> <p><em>Abrams</em> and the other cases were effectively overturned in <em>Brandenburg v. Ohio</em> (1969), which held that speech can be prosecuted only if intended to foment &ldquo;imminent lawless action.&rdquo; Since then, the court has vigorously defended speech that offends or provokes, ranging from the publication of the Pentagon Papers, to violent rap lyrics, from pornographic humor to burning the American flag.</p> <p>These strong protections give Americans confidence in our right to express and hear unpopular opinions. The experience of a century ago should warn us against being complacent about it.</p> </div> Thu, 07 Nov 2019 08:43:40 -0500 Ilya Shapiro, Michael Collins https://www.cato.org/publications/commentary/centenary-free-speech Hardy v. United States https://www.cato.org/publications/legal-briefs/hardy-v-united-states Mark F. (Thor) Hearne II, Stephen S. Davis, Ilya Shapiro <div class="text-default"> <p>Railroad lines once extended throughout the United States. At the peak in 1916, more than 270,000 miles of track crisscrossed the country. As railroads became less popular, however, thousands of miles of rail lines were left unused. Since the 1980s, the Rails-to-Trails Act has converted former rail lines into hiking and biking trails. But many of those rail lines were originally easements across private property. Under common-law doctrine, when an easement is abandoned and no longer used for the original purpose, the land “reverts” back to the property over which the easement was granted. Therefore, if the government wants to use part of an abandoned rail line for a trail, it needs to pay for the land under the Takings Clause of the Fifth Amendment.</p> <p>In 1890, the previous owners of the plaintiffs’ property conveyed an easement over their land to the Middle Georgia &amp; Atlantic Railway Company to lay and operate a rail line across the property. In 2013, the federal Surface Transportation Board granted Norfolk &amp; Southern’s (the original railway company’s successor) petition to abandon the fifteen-mile stretch. After granting the request, the Board invoked the Rails-to-Trails Act and transferred the abandoned right-of-way easement to the Newton County Trail Path Foundation, which intends to use the easement for a public recreation trail. The Hardys and other property owners challenged the transfer as a taking of their property and thus they were owed compensation. The Court of Federal Claims agreed, and the government appealed.</p> <p>Cato has joined the National Association of Reversionary Property Owners, the Southeastern Legal Foundation, and renowned property law professor James W. Ely Jr. in an amicus brief urging the appellate court to affirm the lower court ruling. We argue that under state-law principles—which even in the federal eminent domain context govern the disposition of property interests—an easement, once abandoned, reverts to the landowners and re-merges into their property. If the federal government wishes to convey the railway’s abandoned easement to the Foundation, it cannot, therefore, rely on the 1890 conveyance. Rather, it must “take” the easement through a new eminent domain action and pay owners just compensation.</p> <p>In a case citing Supreme Court precedent, the Tenth Circuit held “[i]t is settled law that a Fifth Amendment taking occurs in Rails-to-Trails cases when government action destroys state-defined property rights by converting a railway easement to a recreational trail, if trail use is outside the scope of the original railway easement.” This reasoning applies to this case. Georgia law in 1890 clearly limited the conveyed easement to use as a railway, not as a recreational trail. And this statutory design is by no means unique to Georgia, with several state supreme courts offering the same or similar readings of their state laws.</p> <p>The Rails-to-Trails Act does not give the federal government <em>carte blanche</em> to convert railroad right-of-way easements into recreational trails or other public uses. When the federal government invokes the act to repackage abandoned rail lines, it must do so in a manner that respects existing state property laws. Here, the plaintiffs simply seek just compensation for a new use unauthorized and not contemplated under the original easement. The Federal Circuit should affirm the lower court or countless property owners will be subject to a rails-to-trails program that has, well, gone off the rails.</p> </div> Wed, 06 Nov 2019 16:42:14 -0500 Mark F. (Thor) Hearne II, Stephen S. Davis, Ilya Shapiro https://www.cato.org/publications/legal-briefs/hardy-v-united-states Ilya Shapiro discusses federal judicial appointments on Cronkite News https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-federal-judicial-appointments-cronkite-news Tue, 05 Nov 2019 10:39:00 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-federal-judicial-appointments-cronkite-news Ilya Shapiro discusses the Trump administration's proposal for faith-based adoptions on CBSN https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-trump-administrations-proposal-faith-based Mon, 04 Nov 2019 13:20:33 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-trump-administrations-proposal-faith-based What's the Frequency, Berkeley? https://www.cato.org/blog/whats-frequency-berkeley Ilya Shapiro, Michael Collins <p>Did you know that cell phone radio frequency (RF) exposure causes cancer? It doesn’t. The Federal Communications Commission has concluded there’s “no scientific evidence” linking “wireless device uses and cancer or other illnesses.” Despite the FCC’s scientific findings, however, the city of Berkeley, California, requires every cell phone realtor provide a notice informing customers that, if they carry cell phones in a “pants or shirt pocket or tucked into a bra” when the phone is on and connected, they “<em>may </em>exceed the federal guidelines for exposure to RF radiation.”</p> <p>That statement is technically true; “may” just means something is possible, not necessarily likely. Phones <em>may</em> exceed federal guidelines; likewise, phones <em>may</em> spontaneously combust. What Berkeley says is technically correct, just misleading (the unexplained acronym also sounds scary). CTIA, the wireless industry’s trade group, sued Berkeley for compelling speech in violation of the First Amendment.</p> <p>The right to speak necessarily entails the right to remain silent. This principle ensures the freedom of conscience and prevents citizens from being conscripted to serve as unwilling bullhorns for government communications. Likewise, it is a foundational principle of the First Amendment that content-based restrictions of speech must survive the strictest scrutiny—meaning the government needs a really good reason and can’t achieve its goal any other way.</p> <p>But the Supreme Court has ruled that regulations of “commercial speech” need not meet the same rigorous standards of review as other types of speech. The Court created this narrow exception in <em>Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio</em> (1985). The <em>Zauderer</em> test applies lesser standards for mandatory disclosures, when the speech is “purely factual and uncontroversial information” and when the disclosure is not “unduly burdensome” and “reasonably related to the State’s interest in preventing deception of consumers.”</p> <p>The Supreme Court previously remanded <em>CTIA v. Berkeley</em> in light of <em>NIFLA v. Becerra</em> (2018), where the Court clarified that the ambit of speech covered by <em>Zauderer</em>’s exception is narrow, and that governments did not have free reign provide scripts for commercial businesses. On remand, however, the U.S. Court of Appeals for the Ninth Circuit eroded <em>Zauderer</em>. The Ninth Circuit found that compelling speech content posed no constitutional issues because mandated disclosures need only be reasonably related to “non-trivial” government interests. This decision is another in a line of confused applications of <em>Zauderer</em> by the lower courts.</p> <p>CTIA, represented by former Solicitor General Ted Olson, is again petitioning the Supreme Court to review that flawed decision. As we have at <a href="https://www.cato.org/sites/cato.org/files/pubs/pdf/ctia-cert-stage.pdf">previous stages</a> of litigation, Cato has filed an <a href="https://www.cato.org/sites/cato.org/files/2019-11/CTIA%20cert-stage%20again.pdf">amicus brief</a> supporting that petition. We argue that this important area of law desperately needs clarification, particularly at a time when compelled-disclosure regimes have proliferated and some courts have distorted the already insufficient <em>Zauderer</em> standard beyond recognition. To that end, the Court should apply strict scrutiny to review laws that force market participants to disparage their own products and participate in policy debates they wish to avoid.</p> <p>The Supreme Court will decide whether to take up <em>CTIA v. Berkeley</em> later this fall.</p> Fri, 01 Nov 2019 16:51:40 -0400 Ilya Shapiro, Michael Collins https://www.cato.org/blog/whats-frequency-berkeley Little Sisters of the Poor v. Pennsylvania https://www.cato.org/publications/legal-briefs/little-sisters-poor-v-pennsylvania Ilya Shapiro, Josh Blackman <div class="lead text-default"> <p>The Supreme Court said in <em>Burwell v. Hobby Lobby</em> (2014) that, under the Religious Freedom Restoration Act, the Department of Health and Human Services (HHS) could not apply its contraceptive mandate to closely held for-profit corporations when doing so would violate the owners&rsquo; sincere religious beliefs. Around the time of that decision, the Court stayed the application of the mandate to nonprofits, including a group of nuns known as the Little Sisters of the Poor. The Little Sisters and their co-plaintiffs in <em>Zubik v. Burwell</em> (2016) objected to the &ldquo;accommodation&rdquo; that HHS crafted for religious nonprofits because they considered it to require them to be complicit in sin. While the Supreme Court stopped the operation of the contraceptive mandate against the Little Sisters in light of <em>Hobby Lobby</em>, their case is still active.</p> </div> , <div class="text-default"> <p>Here's the deal: Although the Affordable Care Act said nothing about accommodating or exempting religious organizations from the requirement of providing employees &ldquo;preventive care&rdquo; (a term undefined in the statute&rsquo;s text), HHS issued a rule that exempted churches and their &ldquo;integrated auxiliaries&rdquo; from the mandate altogether but required other religious organizations to submit a self-certification that would lead insurers or third-party administrators to cover the cost of the objectionable contraceptives. In doing so, the department claimed to try to balance religious liberty and access to contraceptives by <em>exempting</em> churches and <em>accommodating</em> other religious employers. It justified this distinction by saying that non-church religious employers were &ldquo;more likely&rdquo; to employ people who did not share their faith or adhere to the same objection. That distinction did not and does not hold up, however, as the Little Sisters continue to maintain that the mere &ldquo;accommodation&rdquo; makes them violate their sincerely held religious beliefs.</p> <p> In appealing to the Supreme Court to resolve the issue once and for all, Cato and the Jewish Coalition for Religious Liberty propose the same question Cato asked the Court to resolve in <em>Zubik</em>: Whether HHS and other federal departments have the interpretive authority to craft a religious &ldquo;accommodation&rdquo; pursuant to the ACA&rsquo;s &ldquo;preventive care&rdquo; mandate. The answer, both then and now, is no. With a new administration, the balance of the parties has changed and the White House seeks a more expansive exemption&mdash;one that would arguably cover the Little Sisters. Yet even if New Jersey and Pennsylvania (the parties now opposite the Little Sisters) are correct that the new exemption cannot go into effect, the Court will still have to decide what alternate regime complies with RFRA. That is, if the Court takes seriously Cato&rsquo;s doubts about agency authority in this case, it cannot just consider the expanded exemptions in a vacuum and call it a day. </p> <p>First, the accommodation&mdash;third-party coverage of &ldquo;preventive care&rdquo; upon self-certification of a belief-based objection&mdash;was crafted without any statutory anchor. There is no indication in the ACA&rsquo;s 900+ pages that Congress intended for HHS to make religion-related judgment calls; the word &ldquo;religion&rdquo; does not even appear anywhere. It is particularly unlikely that Congress would have delegated, without any statutory guidance, this sort of authority, given that the relevant agencies have no expertise in crafting religious accommodations. Executive agencies simply cannot impose arbitrary burdens on religious non-profits that they guesstimate to be &ldquo;less&rdquo; religious than churches. Second, the departments lack the &ldquo;expertise&rdquo; to answer this &ldquo;major question&rdquo; of social, &ldquo;economic and political consequence,&rdquo; to quote <em>King v. Burwell </em>(the 2015 statutory challenge to Obamacare), and are not entitled to make religious-liberty policy or receive judicial deference when they do. Although administrative law&rsquo;s <em>Chevron</em> doctrine allows agencies to fill in the gaps where statutory language is ambiguous, that power does not entitle agencies to make major decisions that alter the fundamental aspects of religious free exercise when the only potential source of that power is the term &ldquo;preventive care.&rdquo; Finally, where there is a lack of clear indication of congressional delegation, the Court must avoid constitutional questions that could lead to church-state entanglement, as is likely the case when an agency picks and chooses which religious tenets it respects or ignores.</p> <p>Unfortunately, the Supreme Court in <em>Zubik</em> did not decide whether the post-<em>Hobby Lobby</em> regulations were the least restrictive means of serving the government&rsquo;s interest in the &ldquo;preventive care&rdquo; provision, remanding the case&mdash;and the 800-pound religious-liberty gorilla&mdash;to the lower courts. Now the case has returned to the Court&rsquo;s marble steps, offering the justices another chance to provide the Little Sisters and similarly situated groups real protection. This is the only way to remedy the substantial burden placed on their free exercise of religion, imposed on them by dint of their organizational form and other agency-contrived criteria.</p> </div> Fri, 01 Nov 2019 15:07:06 -0400 Ilya Shapiro, Josh Blackman https://www.cato.org/publications/legal-briefs/little-sisters-poor-v-pennsylvania The Little Sisters Return to the Supreme Court https://www.cato.org/blog/little-sisters-return-supreme-court Ilya Shapiro, Sam Spiegelman <p>The Supreme Court said in <em>Burwell v. Hobby Lobby</em> (2014) that, under the Religious Freedom Restoration Act, the Department of Health and Human Services (HHS) could not apply its contraceptive mandate to closely held for-profit corporations when doing so would violate the owners’ sincere religious beliefs. Around the time of that decision, the Court stayed the application of the mandate to nonprofits, including a group of nuns known as the Little Sisters of the Poor. The Little Sisters and their co-plaintiffs in <em>Zubik v. Burwell</em> (2016) objected to the “accommodation” that HHS crafted for religious nonprofits because they considered it to require them to be complicit in sin. While the Supreme Court stopped the operation of the contraceptive mandate against the Little Sisters in light of <em>Hobby Lobby</em>, their case is still active.</p> <p>Here's the deal: Although the Affordable Care Act said nothing about accommodating or exempting religious organizations from the requirement of providing employees “preventive care” (a term undefined in the statute’s text), HHS issued a rule that exempted churches and their “integrated auxiliaries” from the mandate altogether but required other religious organizations to submit a self-certification that would lead insurers or third-party administrators to cover the cost of the objectionable contraceptives.</p> <p>In doing so, the department claimed to try to balance religious liberty and access to contraceptives by <em>exempting</em> churches and <em>accommodating</em> other religious employers. It justified this distinction by saying that non-church religious employers were “more likely” to employ people who did not share their faith or adhere to the same objection. That distinction did not and does not hold up, however, as the Little Sisters continue to maintain that the mere “accommodation” makes them violate their sincerely held religious beliefs.</p> <p>In appealing to the Supreme Court to resolve the issue once and for all, Cato and the Jewish Coalition for Religious Liberty have filed an <a href="https://www.cato.org/sites/cato.org/files/2019-11/Little%20Sisters%20cert-stage%20again.pdf">amicus brief</a> that proposes the same question Cato asked the Court to resolve in <em>Zubik</em>: Whether HHS and other federal departments have the interpretive authority to craft a religious “accommodation” pursuant to the ACA’s “preventive care” mandate. The answer, both then and now, is no. With a new administration, the balance of the parties has changed and the White House seeks a more expansive exemption—one that would arguably cover the Little Sisters. Yet even if New Jersey and Pennsylvania (the parties now opposite the Little Sisters) are correct that the new exemption cannot go into effect, the Court will still have to decide what alternate regime complies with RFRA. That is, if the Court takes seriously Cato’s doubts about agency authority in this case, it cannot just consider the expanded exemptions in a vacuum and call it a day.</p> <p>First, the accommodation—third-party coverage of “preventive care” upon self-certification of a belief-based objection—was crafted without any statutory anchor. There is no indication in the ACA’s 900+ pages that Congress intended for HHS to make religion-related judgment calls; the word “religion” does not even appear anywhere. It is particularly unlikely that Congress would have delegated, without any statutory guidance, this sort of authority, given that the relevant agencies have no expertise in crafting religious accommodations. Executive agencies simply cannot impose arbitrary burdens on religious non-profits that they guesstimate to be “less” religious than churches. Second, the departments lack the “expertise” to answer this “major question” of social, “economic and political consequence,” to quote <em>King v. Burwell </em>(the 2015 statutory challenge to Obamacare), and are not entitled to make religious-liberty policy or receive judicial deference when they do.</p> <p>Although administrative law’s <em>Chevron</em> doctrine allows agencies to fill in the gaps where statutory language is ambiguous, that power does not entitle agencies to make major decisions that alter the fundamental aspects of religious free exercise when the only potential source of that power is the term “preventive care.” Finally, where there is a lack of clear indication of congressional delegation, the Court must avoid constitutional questions that could lead to church-state entanglement, as is likely the case when an agency picks and chooses which religious tenets it respects or ignores.</p> <p>Unfortunately, the Supreme Court in <em>Zubik</em> did not decide whether the post-<em>Hobby Lobby</em> regulations were the least restrictive means of serving the government’s interest in the “preventive care” provision, remanding the case—and the 800-pound religious-liberty gorilla—to the lower courts. Now the case has returned to the Court’s marble steps, offering the justices another chance to provide the Little Sisters and similarly situated groups real protection. This is the only way to remedy the substantial burden placed on their free exercise of religion, imposed on them by dint of their organizational form and other agency-contrived criteria.</p> Fri, 01 Nov 2019 14:28:47 -0400 Ilya Shapiro, Sam Spiegelman https://www.cato.org/blog/little-sisters-return-supreme-court CTIA--The Wireless Association v. City of Berkeley https://www.cato.org/publications/legal-briefs/ctia-wireless-association-v-city-berkeley-0 Megan L. Brown, Joshua S. Turner, Jeremy J. Broggi, Boyd Garriott, Ilya Shapiro <div class="lead text-default"> <p>Did you know that cell phone radio frequency (RF) exposure causes cancer? It doesn&rsquo;t. The Federal Communications Commission has concluded there&rsquo;s &ldquo;no scientific evidence&rdquo; linking &ldquo;wireless device uses and cancer or other illnesses.&rdquo; Despite the FCC&rsquo;s scientific findings, however, the city of Berkeley, California, requires every cell phone realtor provide a notice informing customers that, if they carry cell phones in a &ldquo;pants or shirt pocket or tucked into a bra&rdquo; when the phone is on and connected, they &ldquo;<em>may </em>exceed the federal guidelines for exposure to RF radiation.&rdquo;</p> </div> , <div class="text-default"> <p>That statement is technically true; &ldquo;may&rdquo; just means something is possible, not necessarily likely. Phones <em>may</em> exceed federal guidelines; likewise, phones <em>may</em> spontaneously combust. What Berkeley says is technically correct, just misleading (the unexplained acronym also sounds scary). CTIA, the wireless industry&rsquo;s trade group, sued Berkeley for compelling speech in violation of the First Amendment.</p> <p>The right to speak necessarily entails the right to remain silent. This principle ensures the freedom of conscience and prevents citizens from being conscripted to serve as unwilling bullhorns for government communications. Likewise, it is a foundational principle of the First Amendment that content-based restrictions of speech must survive the strictest scrutiny&mdash;meaning the government needs a really good reason and can&rsquo;t achieve its goal any other way.</p> <p>But the Supreme Court has ruled that regulations of &ldquo;commercial speech&rdquo; need not meet the same rigorous standards of review as other types of speech. The Court created this narrow exception in <em>Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio</em> (1985). The <em>Zauderer</em> test applies lesser standards for mandatory disclosures, when the speech is &ldquo;purely factual and uncontroversial information&rdquo; and when the disclosure is not &ldquo;unduly burdensome&rdquo; and  &ldquo;reasonably related to the State&rsquo;s interest in preventing deception of consumers.&rdquo;</p> <p>The Supreme Court previously remanded <em>CTIA v. Berkeley</em> in light of <em>NIFLA v. Becerra</em> (2018), where the Court clarified that the ambit of speech covered by <em>Zauderer</em>&rsquo;s exception is narrow, and that governments did not have free reign provide scripts for commercial businesses. On remand, however, the U.S. Court of Appeals for the Ninth Circuit eroded <em>Zauderer</em>. The Ninth Circuit found that compelling speech content posed no constitutional issues because mandated disclosures need only be reasonably related to &ldquo;non-trivial&rdquo; government interests. This decision is another in a line of confused applications of <em>Zauderer</em> by the lower courts.</p> <p>CTIA, represented by former Solicitor General Ted Olson, is again petitioning the Supreme Court to review that flawed decision. As we have at previous stages of litigation, Cato has filed an amicus brief supporting that petition. We argue that this important area of law desperately needs clarification, particularly at a time when compelled-disclosure regimes have proliferated and some courts have distorted the already insufficient <em>Zauderer</em> standard beyond recognition. To that end, the Court should apply strict scrutiny to review laws that force market participants to disparage their own products and participate in policy debates they wish to avoid.</p> </div> Fri, 01 Nov 2019 08:54:26 -0400 Megan L. Brown, Joshua S. Turner, Jeremy J. Broggi, Boyd Garriott, Ilya Shapiro https://www.cato.org/publications/legal-briefs/ctia-wireless-association-v-city-berkeley-0 Supreme Court Should Review Ninth Circuit Error Regarding Alien Tort Statute https://www.cato.org/blog/supreme-court-should-review-ninth-circuit-error-regarding-alien-tort-statute Ilya Shapiro, Dennis Garcia <p>The Alien Tort Statute, passed as part of the Judiciary Act of 1789, gives federal courts the power to hear cases brought by foreigners who allege “a violation of the law of nations or a treaty of the United States.” The Supreme Court in <em>Kiobel v. Royal Dutch Petroleum </em>(2013) held that this law presumptively doesn’t apply to violations committed abroad—though that presumption can be overcome when claims “touch and concern the territory of the United States . . . with sufficient force.”</p> <p>Then in <em>Jesner v. Arab Bank, PLC </em>(2018), the Court ruled that foreign corporations cannot be sued under the ATS because international norms about corporate liability are not settled. A lawsuit against a U.S. corporation based on actions taken abroad would thus seem to be a long shot, but the U.S. Court of Appeals for the Ninth Circuit has obliged with just that eventuality, in a case over atrocities committed in Côte d’Ivoire.</p> <p>The underlying crimes around which this controversy revolves make up part of an ongoing series of human rights abuses in West Africa. The use of child slavery has garnered international attention and focused scrutiny on the cocoa trade from which abusive plantations draw their revenue. Nestlé, known for its chocolate among other foods and beverages, has condemned the modern slave trade and joined accords aimed at eliminating human trafficking in the region. But Nestlé U.S.A. and its Swiss parent find themselves in a long-running suit over the enslavement of a number of Malians on Ivorian plantations, on the basis of the corporations’ alleged purchase of cocoa on farms that used slaves.</p> <p>This case has now dragged on for nearly a decade and a half. Plaintiffs have twice successfully appealed to the Ninth Circuit after having their case dismissed by the district court. On this second appeal, the first of its kind post-<em>Jesner</em>, the Ninth Circuit found that U.S. corporations could be sued under the ATS, even though the Supreme Court held that foreign corporations can’t be liable and that corporate liability is not a universal international law standard, as seemingly required by the law.</p> <p>The Supreme Court has insisted on a narrow and rigorous interpretation of the ATS to further the goals of comity and separation of powers. U.S. law cannot realistically be expected to apply in every corner of the globe and the sovereignty of foreign governments must be respected in cases governed by foreign law, even where U.S. actors are involved. Nor is it the job of the judiciary to make foreign policy; it falls to Congress to create causes of action and to the president to conduct diplomacy. In this instance, the political branches have decided, within their prerogatives, that the best way to promote human rights in Côte d’Ivoire is to encourage foreign investment and generate the kind of economic growth that so often serves as the foundation for legal and political reform.</p> <p>Cato has thus filed an <a href="https://www.cato.org/sites/cato.org/files/2019-10/Nestle%20cert-stage.pdf">amicus brief</a> in support of Nestlé U.S.A.’s petition for Supreme Court review. We argue that American corporations may not be sued under the ATS any more than foreign ones can and that such liability would overstep the proper role of the federal judiciary. If the lower-court decision is allowed to stand, similar claims will be drawn to the Ninth Circuit, making its holding the de facto national rule and inviting future long and dubious litigation against American companies. This outcome would undercut American foreign policy and sabotage international trade. The Supreme Court should take this case and make clear that only Congress and the president can do those things.</p> <p>The Court will decide later this fall whether to take up <em>Nestlé U.S.A. </em><em>v. Doe</em>.</p> Mon, 28 Oct 2019 17:58:03 -0400 Ilya Shapiro, Dennis Garcia https://www.cato.org/blog/supreme-court-should-review-ninth-circuit-error-regarding-alien-tort-statute Nestlé U.S.A., Inc. v. Doe https://www.cato.org/publications/legal-briefs/nestle-usa-inc-v-doe Owen C. Pell, Claire DeLelle, Bryan A. Merryman, Steven A. Levy, Ilya Shapiro <div class="lead text-default"> <p>The Alien Tort Statute, passed as part of the Judiciary Act of 1789, gives federal courts the power to hear cases brought by foreigners who allege &ldquo;a violation of the law of nations or a treaty of the United States.&rdquo; The Supreme Court in <em>Kiobel v. Royal Dutch Petroleum </em>(2013) held that this law presumptively doesn&rsquo;t apply to violations committed abroad&mdash;though that presumption can be overcome when claims &ldquo;touch and concern the territory of the United States ... with sufficient force.&rdquo; Then in <em>Jesner v. Arab Bank, PLC </em>(2018), the Court ruled that foreign corporations cannot be sued under the ATS because international norms about corporate liability are not settled. A lawsuit against a U.S. corporation based on actions taken abroad would thus seem to be a long shot, but the U.S. Court of Appeals for the Ninth Circuit has obliged with just that eventuality, in a case over atrocities committed in C&ocirc;te d&rsquo;Ivoire.</p> </div> , <div class="text-default"> <p>The underlying crimes around which this controversy revolves make up part of an ongoing series of human rights abuses in West Africa. The use of child slavery has garnered international attention and focused scrutiny on the cocoa trade from which abusive plantations draw their revenue. Nestlé, known for its chocolate among others foods and beverages, has condemned the modern slave trade and joined accords aimed at eliminating human trafficking in the region. But Nestlé U.S.A. and its Swiss parent find themselves in a long-running suit over the enslavement of a number of Malians on Ivorian plantations, on the basis of the corporations&rsquo; alleged purchase of cocoa on farms that used slaves.</p> <p>This case has now dragged on for nearly a decade and a half. Plaintiffs have twice successfully appealed to the Ninth Circuit after having their case dismissed by the district court. On this second appeal, the first of its kind post-<em>Jesner</em>, the Ninth Circuit found that U.S. corporations could be sued under the ATS, even though the Supreme Court held that foreign corporations can&rsquo;t be liable and that corporate liability is not a universal international law standard, as seemingly required by the law.</p> <p>The Supreme Court has insisted on a narrow and rigorous interpretation of the ATS to further the goals of comity and separation of powers. U.S. law cannot realistically be expected to apply in every corner of the globe and the sovereignty of foreign governments must be respected in cases governed by foreign law, even where U.S. actors are involved. Nor is it the job of the judiciary to make foreign policy; it falls to Congress to create causes of action and to the president to conduct diplomacy. In this instance, the political branches have decided, within their prerogatives, that the best way to promote human rights in C&ocirc;te d&rsquo;Ivoire is to encourage foreign investment and generate the kind of economic growth that so often serves as the foundation for legal and political reform.</p> <p>Cato has thus filed an amicus brief in support of Nestlé U.S.A.&rsquo;s petition for Supreme Court review. We argue that American corporations may not be sued under the ATS any more than foreign ones can, and that such liability would overstep the proper role of the federal judiciary. If the lower-court decision is allowed to stand, similar claims will be drawn to the Ninth Circuit, making its holding the de facto national rule and inviting future long and dubious litigation against American companies. This outcome would undercut American foreign policy and sabotage international trade. The Supreme Court should take this case and make clear that only Congress and the president can do those things.</p> </div> Mon, 28 Oct 2019 09:11:10 -0400 Owen C. Pell, Claire DeLelle, Bryan A. Merryman, Steven A. Levy, Ilya Shapiro https://www.cato.org/publications/legal-briefs/nestle-usa-inc-v-doe Massachusetts Ban on Most Self-Defense Firearms Violates Second Amendment https://www.cato.org/blog/massachusetts-ban-most-self-defense-firearms-violates-second-amendment Ilya Shapiro, James Knight <p>Massachusetts law currently prohibits ownership of “assault weapons,” the statutory definition of which includes the most popular semi-automatic rifles in the country, as well as “copies or duplicates” of any such weapons. As for what that means, your guess is as good as ours. A group of plaintiffs, including two firearm dealers and the Gun Owners’ Action League, challenged the law as an unconstitutional violation of their Second Amendment rights. Unfortunately, both a federal trial judge and appellate court upheld the ban—though they could not agree on why.</p> <p>The trial judge followed the lead of the Maryland case of <em>Kolbe v. Hogan</em> (in which Cato filed <a href="https://www.cato.org/blog/taking-aim-marylands-ban-arms-commonly-used-self-defense">a brief</a> supporting a petition to the Supreme Court), misconstruing from a shred of the landmark 2008 Supreme Court opinion in <em>District of Columbia v.</em> <em>Heller</em> that the test for whether a class of weapons could be banned was whether it was “like an M-16.” Meanwhile, the U.S. Court of Appeals for the First Circuit (in which Cato also <a href="https://www.cato.org/publications/legal-briefs/kolbe-v-hogan">filed a brief</a>), conjured up a complex interest-balancing test that boiled down to a much simpler question: is it like a handgun? If not, the weapon is not sufficiently “well-suited” to self-defense in the home and can be banned. Both tests contravene the core holding of <em>Heller</em> that <em>all</em> weapons in common civilian use are constitutionally protected.</p> <p>The plaintiffs are now asking the Supreme Court to hear their case. Cato, joined by several organizations interested in the protection of our civil liberties, has filed <a href="https://www.cato.org/publications/legal-briefs/worman-v-healey-0">an amicus brief</a> supporting the plaintiffs’ petition. We discuss how the federal circuit courts have, absent further guidance from the Supreme Court, stumbled around in the dark in their attempts to apply <em>Heller</em>’s “common use” test.</p> <p>Although the courts have uniformly looked to statistical data of some form in establishing common use, they have been unable to agree on what the relevant statistic is. The total number of the banned weapons owned, the percentage the banned weapons constitute of the total national arms stock, and the number of jurisdictions in which the banned weapons are lawful have all been used to determine the breadth of constitutional protection. By any metric, however, the weapons banned by the Massachusetts law are clearly in “common use.”</p> <p>Several circuits have also added their own personal touches onto <em>Heller</em>’s test. In this case, the First Circuit panel twisted the “common use” test and looked at whether the banned weapons have “commonly been used <em>for home self-defense purposes</em>,” instead of for any lawful purpose. The panel also followed several other courts in balancing the plaintiffs’ Second Amendment interests against those of the government, despite the Supreme Court’s express rejection of an interest-balancing approach in <em>Heller</em> and the follow-up case <em>McDonald v. City of Chicago</em>.</p> <p>This skewing of legal frameworks is especially troublesome where the Supreme Court has remained silent on the scope of the right to keep and bear arms for the last decade, leading to a fractured and unpredictable state of the law.</p> <p>Today, the majority of firearms sold in the United States for self-defense are illegal in Massachusetts. The lower courts erred in upholding this abridgment of Bay State residents’ rights. The state law is unconstitutional on its face, while the rationales provided to uphold it lack legal or historical foundation. We urge the Supreme Court to hear the plaintiffs’ case and make clear that the Second Amendment is not a second-class right.</p> <p>The Supreme Court will decide later this fall whether to take up <em>Worman v. Healey.</em></p> Mon, 28 Oct 2019 09:06:52 -0400 Ilya Shapiro, James Knight https://www.cato.org/blog/massachusetts-ban-most-self-defense-firearms-violates-second-amendment Baldwin v. United States https://www.cato.org/publications/legal-briefs/baldwin-v-united-states Ilya Shapiro, William Yeatman, Luke Wake <div class="lead text-default"> <p>The Postal Service and IRS are comprised of imperfect humans who misplace documents. No matter how innocuous in intent, these inescapable human errors can cause real harm to taxpayers trying to recover overpayments from the government. When documents get lost, taxpayers miss filing deadlines, and thus lose their &ldquo;day in court&rdquo; to get their money back&mdash;even though fault lay entirely with a government bureaucracy.</p> </div> , <div class="text-default"> <p>That&rsquo;s what happened to the Baldwins, a married couple from California. They overpaid taxes and sought a $167,000 refund. Although they mailed in their amended return months ahead of the deadline, the IRS claims it never came, and, as a result, the agency argues that the Baldwins can&rsquo;t get a refund and can&rsquo;t appeal to the courts for justice.</p> <p>Since 1954, circuit courts have split on how the tax code deals with the kind of unfairness that beset the Baldwins.  Some courts adopted the IRS&rsquo;s unforgiving interpretation. Other courts, however, turned to a common-law evidentiary principle, known as the mailbox rule, which allows taxpayers to present testimonial evidence that their claims were timely mailed. After decades of litigating against the mailbox rule with mixed success, the IRS changed tack and tried an administrative shortcut. Specifically, it issued a skimpy five-page rulemaking to &ldquo;clarify&rdquo; that the statute means what the IRS always had argued in court.</p> <p>The Baldwins live within the jurisdiction of the Ninth Circuit, which is among the courts that previously ruled against the IRS&rsquo;s interpretation. They were thus hopeful when they challenged the agency in a federal district court. Relying on circuit precedent, the trial judge dismissed the agency&rsquo;s perfunctory rulemaking and applied the mailbox rule. In the normal course, the law that binds the Ninth Circuit can change in one of three ways: legislation, a Supreme Court ruling, or a full-court (en banc) rehearing. Yet the three-judge panel upset the circuit&rsquo;s jurisprudence simply by deferring to the IRS, allowing the agency&rsquo;s new interpretation to trump circuit precedent.</p> <p>The Baldwins, now represented by the New Civil Liberties Alliance, seek Supreme Court review. Cato, joined by the NFIB Small Business Legal Center, filed an amicus brief supporting that petition. We argue that the Court must intervene to prevent a disconcerting disruption of the constitutional balance between the separated powers.</p> <p>If the Ninth Circuit&rsquo;s decision is allowed to stand, the IRS would establish a constitutionally dangerous template for its peers to overcome adverse judicial decisions. The direction is clear: simply undergo a sham notice-and-comment processes and then claim <em>Chevron</em> deference in court. With the path blazed here, other agencies will become similarly emboldened to aggrandize their power at the hands of the judiciary. To protect our constitutional structure, the Supreme Court should get involved.</p> </div> Fri, 25 Oct 2019 13:51:36 -0400 Ilya Shapiro, William Yeatman, Luke Wake https://www.cato.org/publications/legal-briefs/baldwin-v-united-states Worman v. Healey https://www.cato.org/publications/legal-briefs/worman-v-healey-0 Joseph G.S. Greenlee, David B. Kopel, Ilya Shapiro <div class="lead text-default"> <p>Massachusetts law currently prohibits ownership of &ldquo;assault weapons,&rdquo; the statutory definition of which includes the most popular semi-automatic rifles in the country, as well as &ldquo;copies or duplicates&rdquo; of any such weapons. As for what that means, your guess is as good as ours. A group of plaintiffs, including two firearm dealers and the Gun Owners&rsquo; Action League, challenged the law as an unconstitutional violation of their Second Amendment rights. Unfortunately, both a federal trial judge and a federal appellate panel upheld the ban&mdash;though they could not agree on why.</p> </div> , <div class="text-default"> <p>The trial judge followed the lead of the Maryland case of <em>Kolbe v. Hogan</em> (in which Cato filed <a href="https://www.cato.org/blog/taking-aim-marylands-ban-arms-commonly-used-self-defense" rel="noreferrer" target="_blank" heap-ignore="true">a brief</a> supporting a petition to the Supreme Court), misconstruing from a shred of the landmark 2008 Supreme Court opinion in <em>District of Columbia v.</em> <em>Heller</em> that the test for whether a class of weapons could be banned was whether it was &ldquo;like an M-16.&rdquo; Meanwhile, the U.S. Court of Appeals for the First Circuit (in which Cato also <a href="https://www.cato.org/sites/cato.org/files/wp-content/uploads/kolbe_cert-stage.pdf" rel="noreferrer" target="_blank" heap-ignore="true">filed a brief</a>), conjured up a complex interest-balancing test that boiled down to a much simpler question: is it like a handgun? If not, the weapon is not sufficiently &ldquo;well-suited&rdquo; to self-defense in the home and can be banned. Both tests contravene the core holding of <em>Heller</em> that <em>all</em> weapons in common civilian use are constitutionally protected.</p> <p>The plaintiffs are now asking the Supreme Court to hear their case. Cato, joined by several organizations interested in the protection of our civil liberties, has filed a brief supporting the plaintiffs&rsquo; petition. We discuss how the federal circuit courts have, absent further guidance from the Supreme Court, stumbled around in the dark in their attempts to apply <em>Heller</em>&rsquo;s &ldquo;common use&rdquo; test. Although the courts have uniformly looked to statistical data of some form in establishing common use, they have been unable to agree on what the relevant statistic is. The total number of the banned weapons owned, the percentage the banned weapons constitute of the total national arms stock, and the number of jurisdictions in which the banned weapons are lawful have all been used to determine the breadth of constitutional protection. By any metric, however, the weapons banned by the Massachusetts law are clearly in &ldquo;common use.&rdquo;</p> <p>Several circuits have also added their own personal touches onto <em>Heller</em>&rsquo;s test. In this case, the First Circuit panel twisted the &ldquo;common use&rdquo; test and looked at whether the banned weapons have &ldquo;commonly been used <em>for home self-defense purposes</em>,&rdquo; instead of for any lawful purpose. The panel also followed several other courts in balancing the plaintiffs&rsquo; Second Amendment interests against those of the government, despite the Supreme Court&rsquo;s express rejection of an interest-balancing approach in <em>Heller</em> and the follow-up case <em>McDonald v. City of Chicago</em>. This skewing of legal frameworks is especially troublesome where the Supreme Court has remained silent on the scope of the right to keep and bear arms for the last decade, leading to a fractured and unpredictable state of the law.</p> <p>Today, the majority of firearms sold in the United States for self-defense are illegal in Massachusetts. The lower courts erred in upholding this abridgment of Bay State residents&rsquo; rights. The state law is unconstitutional on its face, while the rationales provided to uphold it lack legal or historical foundation. We urge the Supreme Court to hear the plaintiffs&rsquo; case and make clear that the Second Amendment is not a second-class right.</p> </div> Thu, 24 Oct 2019 08:58:04 -0400 Joseph G.S. Greenlee, David B. Kopel, Ilya Shapiro https://www.cato.org/publications/legal-briefs/worman-v-healey-0