As our friend R.J. Lehmann observed the other day: “New York now wants to require people to hold a kind of insurance that it sanctioned the NRA and an insurance broker earlier this year for selling at all.” I explain in my new Cato post.
- “Asking a Fourth Amendment nerd why the police don’t just get a warrant is like asking an auto mechanic why drivers don’t just buy a new car.” [Orin Kerr on Twitter] “Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process” [Ilya Shapiro on police-search case of Morgan v. Fairfield County as well as public university due process case of Doe v. Michigan]
- “Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power” [Gene Healy, Cato white paper and video feature] Michael Stokes Paulsen series at Law and Liberty on impeachment and originalism [introduction, developing a principled constitutional basis for use of the power, digression on Aaron Burr, special considerations of impeaching judges and presidents; on original meaning of “high crimes and misdemeanors” in context of English history and Framers’ debates]
- “Nonviolent Felons Shouldn’t Lose Their Second Amendment Rights” [Ilya Shapiro and Matthew Larosiere on Cato amicus in Seventh Circuit case of Hatfield v. Sessions]
- Court strikes down federal law banning female genital mutilation as overstepping constitutional authority [Eugene Volokh, Ilya Somin]
- Launched decades ago, advocates still hoping to reanimate: “The problem with zombie constitutional amendments” [Keith Whittington, Harvard Law Review on the Equal Rights Amendment (ERA) and others; ABA Journal; related,
Gerard Magliocca on ratification deadlines]
- Unenumerated rights of constitutional stature should include familial rights of children as well as parents [Ilya Shapiro and Reilly Stephens on Cato amicus brief in Wisconsin Supreme Court case of Michels v. Lyons]
- Police show up to enforce gun confiscation order against Maryland man under new “red flag” law, he brandishes weapon, they shoot him dead [Leah Crawley and Ashley Barnett, Fox Baltimore; Colin Campbell, Baltimore Sun]
- Claim: “The Kavanaugh debacle cost the Democrats the Senate” [Marc Thiessen] If I cheer for Neomi Rao is it going to hurt her confirmation chances? [Jesus Rodriguez, Politico on nomination of OIRA head for Kavanaugh seat on D.C. Circuit]
- “Please conduct yourself accordingly”: Matthew Whitaker letter to man who complained about World Patent Marketing, on whose advisory board Whitaker sat [Mike Masnick, TechDirt]
- Upholding FCPA prison term, Third Circuit rejects businessman’s argument that bribery deal helped pull population out of poverty in remote part of Siberia [Matt Miller, PennLive]
- Sidetracking a decision on the cy pres merits? Supreme Court calls for supplemental briefing on whether named plaintiffs in Frank v. Gaos “have suffered an ‘injury’ sufficient to create standing under the Court’s doctrine” [Ronald Mann/ SCOTUSBlog, Will Baude, earlier here, here, etc.]
- “Fun fact in an opinion today from the Federal Circuit: the Patent Office employs 14 examiners full time solely to examine patent applications filed by a single, prolific inventor.” [Andrew Trask, Gilbert Hyatt v. USPTO]
A federal judge has ruled the National Rifle Association can proceed with its First Amendment suit against New York Gov. Andrew Cuomo over his pressure on regulated banks, insurers to cut ties with gun rights advocacy groups like the NRA. “U.S. District Judge Thomas McAvoy questioned Cuomo’s claim that his messages about the wisdom and propriety of providing financial services to the NRA amount to nothing but legitimate regulatory oversight and protected government speech.” [Jacob Sullum and background, Eugene Volokh] “It is well-established under binding federal appeals court decisions that government officials like Cuomo are not allowed to pressure organizations or businesses to cut off services to someone because of their political stances or expression — even when the government official uses informal pressure as opposed to explicit threats. (See, e.g., Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991)).” [Hans Bader] Earlier here, here and here (ACLU files amicus brief defending NRA’s rights), etc.
I write at Cato about this appalling proposal. “The only way to make this proposal better – by which I mean worse – would be to arrange for New York to quarter troops on the homes of applicants with especially bad social media postings. That way the sponsors could achieve a straight flush of Bill of Rights violations.”
Last month we noted that the ACLU had filed a brief on the side of the NRA in its regulatory-retaliation First Amendment suit against New York Gov. Andrew Cuomo. The brief “strikes me as quite sound legally,” writes Eugene Volokh, who quotes and annotates its text. But the action has roused passionate opposition within the organization itself, reports Mark Joseph Stern at Slate. For example, the ACLU’s New York affiliate declined to join the brief and its officials issued a public statement critical of it. Among their arguments: the NRA “has enormous resources and is fully able to present its First Amendment claim.” Others argue that the dispute is at least in part fact-intensive and does not rest entirely on First Amendment issues, since Cuomo had denounced a particular insurance product marketed by the NRA as unlawful — although the governor’s own statements make clear that his call for regulators to squeeze the group’s finances went beyond that, and indeed included a call for them to put the squeeze on groups with advocacy missions similar to the NRA’s. Yet other factions within the ACLU charge that for it to side with the NRA is to advance “white supremacy.” More: Scott Greenfield.
The legal role the ACLU is playing here, it should be noted, is amicus, as distinct from pro bono defense. As Howard Wasserman, writing at PrawfsBlawg, notes:
The resources argument (putting aside whether it has any merit) strikes me as inapposite in this case. The ACLU is not representing the NRA in this case, so any expenditure of ACLU resources does not relieve the NRA of the burden to spend money on its own lawyers to make its own arguments. The benefit of the ACLU’s brief, on which it did expend some of its limited resources, is to the NRA’s legal position, not to its wallet. An argument that the ACLU not only should not represent well-resourced parties* but should not provide amicus support for well-resourced parties seems over-inclusive, tying the merits of a party’s constitutional position to the money in its bank account.
- Astonishing investigation into feds’ “235 school shootings a year” statistic: “NPR reached out to every one of those schools repeatedly over the course of three months and found that more than two-thirds of these reported incidents never happened. …We were able to confirm just 11 reported incidents.” [Anya Kamenetz, Alexis Arnold, and Emily Cardinali, NPR]
- Sentences that make you go back and read twice: “Mister Cookie Face lawyer Blake Hannafan also applauds the verdict and says 600 lb Gorillas ‘overreached.’” [AP/WHEC, Metro West Daily News on legal battle between Massachusetts dessert company and ice cream supplier]
- “In-N-Out Burger sends pun-filled letter to beer maker to address ‘brewing’ trademark issue” [ABA Journal]
- In Arkansas, socially conservative Family Council Action Committee enlists in the ranks against liability reform, and some less-than-charitable souls wonder whether $150,000 in donations from a Little Rock law firm might have had anything to do with that [Andrew DeMillo, AP]
- AG Brian Frosh’s embarrassing SALT suit, religious adoption fight, Cardin’s red meat thrown to Left, union influence in Montgomery County, Baltimore water supply, and more Maryland stuff in my new Free State Notes roundup;
- Federal court strikes down North Carolina’s U.S. House map as partisan gerrymandering, which could (or might not) lead to lively doings at the Supreme Court between now and Election Day [my new post at Cato]
I’ve been critical of the ACLU lately but its amicus-brief defense of the NRA’s First Amendment rights against New York Gov. Andrew Cuomo’s strong-arm use of insurance and bank regulation is vital, timely, and right:
Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.
Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas.
- “Lawmakers are doing nothing to stop wheelchair ramp scams: businesses” [Julia Marsh and Yoav Gonen, New York Post, earlier on NYC ADA shakedowns]
- Not a flattering picture: inside the politicized office of one state’s (Minnesota’s) attorney general [Rachel M. Cohen, The Intercept, Briana Bierschbach, Minnesota Public Radio, J. Patrick Coolican and Jessie Van Berkel, Minneapolis Star-Tribune (Swanson releases criminal record of aide-turned-critic]
- Remembering when the U.S. went through its first moral panic about plastic guns, in 1986 [Dave Kopel]
- Until 2012, after 60 Minutes did an exposé, “it was perfectly legal for members of Congress to trade on inside information. Not for you, of course. You’d go to jail. But for some strange reason, mystifying to all, that law simply did not apply to Congress.” [Kevin Underhill, Lowering the Bar]
- “Federal Court: Miami Taxi Companies Have ‘No Right To Block Competition’ From Uber” [Nick Sibilla, Forbes]
- “Not even consumer law professors routinely read consumer contracts and disclosures” [Jeff Sovern, CL&P]
The Internet interprets censorship as damage and routes around it: even after opponents manage to talk a judge into issuing a prior restraint order on speech, gun blueprints are still online in widely available libraries and will remain so. And making a gun at home in the U.S. remains legal, as it has been all along, though subject to a recent law on those undetectable by scanner technology [Brian Doherty, David French/NRO, Declan McCullagh, Josh Blackman thread, Erica GoldbergCodeIsFreeSpeech.com] And I only read Playboy for the articles about guns written by colleague Matt Larosiere (“Fully 3-D printed guns are still ineffective, probably less effective than firearms you can craft from hardware store scraps.”) Earlier on Defense Distributed “arms export” controversy here and here, and more from David Kopel and Cyrus Farivar on the lawsuit settlement. More: Trevor Burrus (“Judge Issues Temporary Restraining Order Against Blueprints for Homemade Muskets”).