A memo last week from San Francisco Mayor London Breed made clear that “the City’s contracting processes and policies have not changed and will not change as a result of the Resolution” by the Board of Supervisors branding the National Rifle Association a domestic terrorist group. [Joshua Koehn, San Francisco Chronicle] The resolution had proclaimed that the city should take all reasonable steps to identify and limit business and financial links between its vendors and contractors and the membership organization, but Breed pointed out that the city enacts changes to its law only by ordinance, not by resolution, which means the swaggering language had no effect off the playground. It had been widely predicted that courts would strike down a move by the city to coerce contractors in this way. Earlier here and here.
- Does the Constitution allow Arizona to frame a new tax in such a way that de facto, though not de jure, nearly all of it falls on out-of-state residents? [Ilya Shapiro, Cato]
- Writer and star of one-act play “isn’t a fan of America’s founding charter — which may be why her audiences are such big fans of hers.” [Andrew Ferguson, The Atlantic]
- Pentagon has lately developed aerial surveillance technology with near-panopticon capabilities. OK to deploy over home territory? [Cato video with Patrick G. Eddington, Arthur Holland Michel, and Jenna McLaughlin on Michel’s book Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch Us All]
- Ilya Shapiro discusses New York Rifle and Pistol Association v. the City of New York [National Constitution Center We the People podcast; earlier here, here, and here] “Maryland’s gun permit system is challenged — and it’s probably unconstitutional” [my post at Free State Notes] “3-D Printed Guns & the First Amendment” [Federalist Society Policy Brief video with John Stossel and Josh Blackman]
- Tradcons are kidding themselves if they imagine they can get a better constitutional deal outside the current legal conservative movement with its commitment to a broadly fusionist originalism, argues John McGinnis [Liberty and Law] “Originalism as ideology” [Michael Greve]
- “Guam officials seek to hold referendum allowing voters to express their opinion about the future of the relationship between Guam and the United States but will only permit ‘Native Inhabitants of Guam’ to vote. Ninth Circuit: Which means restricting voting based upon race, which is explicitly prohibited by the Fifteenth Amendment.” [Institute for Justice “Short Circuit” on Davis v. Guam]
In March the Connecticut Supreme Court, over a dissent from three of its seven justices, ruled that the federal Protection of Lawful Commerce in Arms Act (PLCAA) did not pre-empt a state unfair-trade-practice statute for purposes of allowing suits against the maker of the rifle used in the Sandy Hook massacre — this even though the firearm in question was never marketed or sold to the killer, who stole it from his mother who had purchased it lawfully long before. As expected, gunmaker Remington has now filed a certiorari petition to the U.S. Supreme Court, asking for a ruling clarifying the scope of the federal law.
The Cato Institute together with the Independent Institute has filed an amicus brief in the case [Trevor Burrus, Cato] urging the high court to review the Connecticut decision and accord the intended broad effect to Congress’s pre-emption of state litigation intended to achieve gun control by other means.
The brief emphasizes two lines of argument that I find exactly to the point. First, under the right circumstances, the workings of tort lawsuits can impinge on individual rights guaranteed by the Constitution: exorbitant libel verdicts can menace freedom of speech, and similarly stretching of tort and public nuisance law can endanger Second Amendment rights. It is worth making explicit the parallels between the Supreme Court’s acknowledgment of the first in New York Times v. Sullivan and Congress’s recognition of the second in its passage of PLCAA.
It is noteworthy that in both cases the line-drawing came in response to litigation campaigns intended to challenge, or chip away at, the rights in question. By organizing costly libel suits against defendants that included the New York Times, some Southern partisans hoped to silence voices critical of the status quo in their part of the country (and deter others). Decades later, advocates of gun control teamed up with government officials in a litigation campaign intended to force the firearms industry into negotiations by threatening it with bankruptcy through litigation costs, whether it won or lost its cases.
Writes David Kopel: “In both cases, the stakes are the same: whether the Supreme Court will allow the misuse of tort suits to destroy an enumerated right.” What the Supreme Court is being asked to do in this case, namely give effect to Congressional intention in a statutory interpretation case, is less ambitious and far-reaching than what it was asked to do in Sullivan, namely craft entirely new Constitutional law to respond to the problem.
San Francisco’s resolution denouncing the National Rifle Association (earlier) might seem like so much empty wind. But there are practical reasons why such a designation poses a problem. I talk with
Caleb Brown for the Cato Daily Podcast.
Relatedly, and in no surprise, the NRA itself has sued San Francisco over the resolution, although there may be questions about whether a contractor at risk of losing city business might have a sounder claim to standing. [AP] Jacob Sullum cites “the poisonous tendency to portray one’s political opponents as mass murderers.” [Reason] And the supervisors may have a bigger group of co-thinkers out there than you might expect: 18% of voters polled “think it should be against the law to belong to pro-gun rights groups like the NRA.” [Eugene Volokh]
I’m in today’s Wall Street Journal [paywalled for some readers] with a piece on last week’s vote by the San Francisco Board of Supervisors to brand the National Rifle Association a “domestic terrorist organization.” The resolution repeatedly takes the view that “advocacy,” “propaganda” and “promotion” of certain political viewpoints, or of gun ownership, constitutes terrorism or, as the case may be, “material support” for it.
First Amendment aside, there’s more than just symbolism in the board’s divisive attempt to change the meaning of words by main force. The resolution also declares a crackdown on city contractors who do business with the gun-advocacy group, and under current law that is very likely to be struck down in itself as inconsistent with the First Amendment under a 1996 Supreme Court precedent.
Some related links: the resolution; the 1996 Board of County Commissioners v. Umbehr case, in which the Supreme Court ruled 7-2 that the First Amendment restrains localities’ discretion to shun contractors because of their politics; Jonathan Adler in 2015 on the Chick-Fil-A controversies; and reporting on the San Francisco supervisors’ resolution to use nicer, not-so-dehumanizing terminology about criminals (Jim Geraghty at National Review noticed this before me).
My letter to the editor at the Washington Post last Tuesday on red flag gun laws:
August 13, 2019
Red flag’ laws can have deadly consequences
The Aug. 9 front-page article “Results of ‘red flag’ gun laws uneven across 17 states, D.C.” quoted critics of Maryland’s “red flag” gun-confiscation law who find the law lacking on due process grounds. It might also have mentioned another kind of collateral damage done by the law this past November in its second month of operation, namely the death of 61-year-old Gary J. Willis of Glen Burnie, shot dead by Anne Arundel County police who had come to his door at 5 a.m. to present an order to confiscate his guns. Willis answered the door with a gun in his hand. He set it down but then became angry, picked up the gun, and, in an ensuing scuffle with an officer over the weapon, it went off without striking anyone. A second officer then shot Willis dead.
In the aftermath, because of confidentiality rules, neither press nor public could view the red-flag order that had set police on the fatal encounter. Defending the shooting afterward, the county’s police chief described any possible threat from Willis to others in the vaguest of terms, telling the Capital Gazette, “We don’t know what we prevented or could’ve prevented.” Family member Michele Willis, speaking to the Baltimore Sun, took a different view: “I’m just dumbfounded right now,” she said. “My uncle wouldn’t hurt anybody. … They didn’t need to do what they did.”
Walter Olson, New Market
It is true that in principle “red flag” laws can draw on the same respectable historic taproots of judicial power as, e.g., domestic violence restraining orders. [David French, National Review] One problem with that is that it’s not clear the current use of domestic restraining orders inspires confidence, due-process-wise. In two posts last week (first, second) Jacob Sullum, who also cites the work of Dave Kopel, critically examines the shortcomings of the red flag gun laws enacted so far, while California lawyer Donald Kilmer looks at his state’s existing law.
“New York City’s bizarre ordinance bans pistol permit holders from taking their firearms beyond the five boroughs. (The irony seems to be lost on the eminently anti-gun municipality, which one would think wants as many guns to leave as possible). …The Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. City of New York in October, after it returns from its summer break.” [Cato at Liberty blog post by Ilya Shapiro and Matthew Larosiere, and related Cato Daily Podcast with Larosiere and Caleb Brown]
Yesterday we conducted weapons sweeps,dealt with a person injured from a van reversing on them, reported a burglary and collected all these from @scope charity shop who diligently didn’t want them to get into the wrong hands & disposed of correctly & safely pic.twitter.com/GNfxZd6iGd
— Regents Park Police (@MPSRegentsPark) May 14, 2019
From a verified police account in London, a city that’s been pursuing an anti-knife campaign. Note the foil (or is it an épée?), the spoon, and enough chef’s, paring, bread, and steak knives to get a half-dozen households launched on a lifelong mission of eating well.
- U.K.: Whole Earth 3 Nut Butter recalled for not displaying a “contains nuts” warning on the jar [Katie Morley, Telegraph]
- “Community College Reportedly Bans Pro-Second-Amendment Banner with Picture of Rifles” [Eugene Volokh]
- More on the dubious “hate crimes have surged” narrative, from Will Reilly of Kentucky State, who has a new book out [Nolan Finley, Detroit News, earlier]
- In Lamps Plus v. Varela, Supreme Court rules courts should not read class arbitration mechanisms into arbitration agreements that do not explicitly provide for them [Morrison & Foerster; Joshua Dunlap, Pierce Atwood/JD Supra; Charlotte Garden, SCOTUSBlog] More: Federalist Society teleforum with Prof. Henry Allen Blair:
- “Judge tosses law firm’s suit seeking $9.75 million bonus fee in Chicago divorce case” [ABA Journal]
- Hot courtrooms and immigration judges: “A 10°F degree increase in case-day temperature reduces decisions favorable to the applicant by 6.55 percent. This is despite judgments being made indoors, ‘protected’ by climate control.” [Anthony Heyes and Soodeh Saberian via Tyler Cowen]
- Man evicted from lodgings abandons his ailing fish. A suitable case for criminal prosecution? [Carissa Byrne Hessick; Clint Bullock and Chelsea Donovan, WECT]
- Guardianship and public administrator abuses will be one topic of elder abuse task force announced by Michigan attorney general [Beth LeBlanc, Detroit News]
- “Red Flag Law is sort of like the Department of Pre-Crime from the movies” [Cato Daily Podcast with Dave Kopel and Caleb Brown on emergency gun confiscation proceedings; related, Kopel testimony via Cato, earlier]
- “Man sues parents for getting rid of his vast porn collection” [Associated Press]
- Three candidates vie to replace long-serving Jim Hood: “AG candidate [Mark] Baker says Mississippi should end its alliance with private lawyers” [Brian Brueggemann, Legal NewsLine]
- “Is It Time to Revisit the Constitutionality of Unauthorized Practice of Law Rules?” [Michael Rosman, Federalist Society]