Category Archives: Courts

2nd Amendment and the Fifth Circuit

Posted on by
Reply

The Wall Street Journal‘s Law Blog has a description of an egregious gun rights case.  It seems that, when Errol Houston was arrested in New Orleans in 2009 on drug and firearm charges, the police seized a properly registered gun that he had.  So far, so good—when the police arrest someone, they’re allowed to disarm him, too.  However, when the charges were dropped, the city refused to return his weapon to him.  He sued for the return, and amazingly, the district court found for the city.  Even more amazingly, the Fifth Circuit upheld the ruling, with this…logic…written by Judge Rhesa Hawkins Barksdale:

Just as some regulation of speech–e.g., of obscenity and defamation–is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second.  The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

Houston has not alleged defendants prevented his “retaining or acquiring other firearms.”  Therefore, he has not stated a violation of his Second Amendment right to keep and bear arms.

Judge Jennifer Walker Elrod dissented.  In addition to pointing out the degree of legality of the majority opinion, violating as it does the Supreme Court’s prior rulings in similar cases (vis., District of Columbia v. Heller and McDonald v. City of Chicago), she also correctly explains the nature and meaning of the 2nd Amendment:

In the context of other enumerated constitutional rights, an equivalent per se exception for particular exercises of the right at stake (so long as other exercises of that right are permitted) would be intolerable.  Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece.  Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.  These examples should suffice to show the absurdity of courts recognizing categorical exceptions for each particular exercise of those rights.  In carving out such an exception from the Second Amendment, today’s majority impermissibly treats the Amendment as a “second-class right.”

Judge Elrod is right that the accessibility of alternatives is irrelevant—those alternatives are not the item itself, and the item itself remains the legitimate property of the owner.

Both the majority and Judge Elrod miss a larger point, though: the “right of the people to keep and bear Arms” is, indeed, a property right, but it is a different and more fundamental kind that that alluded by Judge Barksdale and accepted by Judge Elrod.  This property is one flowing from the endowment imbued in us by our Creator, a property of our being.  As such, Judge Elrod is right, but she doesn’t go far enough.  It is the regulation of our endowed rights that is the exception, not the possession of this or that particular item in a realization of one or more of those rights.

A Ruling on the 2nd Amendment

Posted on by
Reply

US District Judge Benson Everett Legg (Maryland District), in a Monday ruling has said that Maryland residents are not required, as a Marayland had had it, to convince authorities that they have a “good and substantial reason” to own a handgun.

Judge Legg wrote, among other things,

…the Court finds that the right to bear arms is not limited to the home. The signposts left by recent Supreme Court and Fourth Circuit case law all point to the conclusion that Woollard‘s ―claim to self-defense—asserted by him as a law-abiding citizen…—does implicate the Second Amendment, albeit subject to lawful limitations.

He went on [emphasis mine]:

A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be.  Maryland‘s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them,”…is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly.  Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk.  States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.  “[E]ven the most legitimate goal may not be advanced in a constitutionally impermissible manner.”

At bottom, this case rests on a simple proposition: If the Government wishes to burden a right guaranteed by the Constitution, it may do so provided that it can show a satisfactory justification and a sufficiently adapted method.  The showing, however, is always the Government‘s to make.  A citizen may not be required to offer a “good and substantial reason” why he should be permitted to exercise his rights.  The right‘s existence is all the reason he needs.

Maryland’s Assistant Attorney General, Matthew Fader, says he’ll appeal, saying “we” disagree, and taking note of the “very important implications of the ruling for public safety.”  He’s wrong, though, on two counts: in the first place, the public safety is maximized by hewing to the Constitution, not by deviating from it.  In the second place, he apparently wasn’t paying attention to the Legg’s ruling:

States may not, however, seek to reduce the danger [of misuse] by means of widespread curtailment of the right itself.

Judge Legg has the right of it.

Rights Upheld

Posted on by
Reply

Last fall, I posted about a right-to-privacy case that involved police planting a GPS tracker in a suspect’s car without court sanction.  To briefly recap,  police wished to track the comings and goings of a suspected drug trafficker, so they obtained a search warrant for planting a GPS tracker on the suspect’s car.  In execution, though, the police had let the warrant expire before they acted on it, and then they planted the tracker outside the warrant’s jurisdiction.

The government argued that attaching the tracker to a car’s underside was too trivial a violation of property rights to matter, and further that no one who drove on public streets could expect his movements to go unmonitored.  Of course it was exactly this sort of cynical arrogance that contributed to our Founders’ writing into our Bill of Rights a requirement for the government to show cause to and get permission from a court before that government could invade and search an individual or his property.  Indeed, many of the government’s men understood this today; albeit they were breathtakingly careless in the execution: police had, in fact, obtained a warrant to attach the tracker, but within the District of Columbia.  However, they then installed the device after the warrant had expired and while the car was parked in Maryland.

Today, reports The Wall Street Journal, the Supreme Court handed down its ruling.  In a unanimous opinion, the Court said that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle—the Founders’ view, and American rights, were vindicated and upheld.

Still, the Court split in its opinion.  Justice Antonin Scalia, in the five-Justice majority opinion, held that the 18th century concept of “persons, houses, papers, and effects” included such private properties as 21st century automobiles in the 4th Amendment protection against unreasonable searches (and seizures).  Thus, the 4th Amendment is technology-agnostic: our rights appertain to us, not to our property.  But we knew that from our Declaration of Independence.

Justice Samuel Alito went even further, in a dissenting concurring opinion (signed  onto by the likes of Justices Elena Kagan, Ruth Bader Ginsberg, and Stephen Breyer).  Alito held that the warrantless (unwarranted?) GPS tracker implant not only violated the victim’s right of privacy, it violated his  “reasonable expectation of privacy,”  because, as the Court had held as long ago as 1967, “the Fourth Amendment protects people, not places.”

Alito was quite clear in his reasoning, as summarized by the WSJ at the above link:

…a property-based approach was too narrow to guard against the proliferating threats to personal privacy modern technology posed.

In broadening Scalia’s argument, we see that technology agnosticism, again, with regard to our rights and freedoms.

In the end, the original obtaining of a warrant, coupled with the administration’s argument  that the warrantless search was only a trivial violation, demonstrates this administration’s utter cynicism when it comes to the rights and freedoms of Americans—and the continued need for the 4th Amendment to be applied rigorously and zealously.

It Isn’t Always the Government

Posted on by
Reply

The US Chamber of Commerce’s Institute for Legal Reform has settled on its view of the most ridiculous lawsuits of the just concluded year, borrowing from FacesOfLawsuitAbuse.org.  As the Institute points out, the US has been the lawsuit capital of the world for some time, and foolishness like these cases contributes to the title.

We can’t blame this idiocy on government, however.  I do have to wonder, though, at the lawyers who actually agree to take these things to court.  They must know the frivolous nature, so I speculate about their motives….

The most idiotic case is one that also demonstrates an amazing degree of chutzpah.  The criminal sues his victims because they didn’t keep their end of an extorted bargain.

Convict sues couple he kidnapped for not helping him evade police. A man who kidnapped a couple at knifepoint while he was running from the police is now suing the victims, claiming that they promised to hide him in exchange for an unspecified amount of money.  The plaintiff, currently in jail, is seeking $235,000 for the alleged “breach of contract.”

Here are more examples of our idiocy, beginning with one for the psychiatrist’s couch.  “It all began when I was little, and my mummy violated my Oedipus Complex….”

Young adults sue mother for sending cards without gifts and playing favorites. The plaintiffs, now 20 and 23, claimed the mother “sometimes didn’t include gifts in cards sent to her children; played favorites with her children…did not send care packages until his sixth semester away at college…changed her surname, thus ‘causing attention’ at her daughter’s school events; and refused to buy her a homecoming dress.”

Poor babies….  Let’s see, now.  I didn’t get a care package, ever.  And my mother never bought me a homecoming dress, either.  Or a tux, which would have fit me better.  Or even rent me one.  Hmm….

Everyone’s a critic, too.  Opinions, though, are as ubiquitous as certain body parts; no one is obligated to hear or view either.

Woman sues over movie trailer; says not enough driving in ‘Drive’. A Michigan woman who claims she was misled by the trailers for the movie ‘Drive’ is suing the distributors of the film.  She says she was disappointed by the lack of driving in the film and was expecting something more similar to the ‘Fast and Furious’ films.

Back to misbehaving mothers:

Mom files suit against exclusive preschool over child’s college prospects. A New Yorker is suing a private preschool, saying the school’s curriculum has seriously hurt her 4-year-old’s chances of getting into an Ivy League college.

This assumes an Ivy League education is a worthy goal.  If the private preschool is living up to Mom’s allegations, they’re actually doing little Buffy a favor.  Oh, great—now the Ivy Leaguers are going to sue….

All I can say about the next one is that it’s a good thing he didn’t pull either one of these stunts in Texas.

Man sues bar for not disarming him before he started drinking (and fighting). A Pennsylvania man illegally brought a gun into a bar, then got injured in a drunken shootout with another patron, and now has sued the bar for not searching him for a weapon on his way in.

Finally, there’s this.

Mother sues Chuck E. Cheese – says games encourage gambling in children. A California woman has filed a lawsuit against Chuck E. Cheese on the grounds that their games are actually an illegal form of gambling and could get kids hooked. She is seeking at least $5 million; the restaurant says the games are legal and has asked a judge to dismiss the suit.

I played bingo in grade school, matched pennies in junior high, and played poker all through high school.  Nine to two Mom (what is it about mothers?) loses this one.