Category Archives: Courts

In Which I Side with the “Liberal” Judges

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Regarding the NSA’s broad (much too broad, IMNSHO) surveillance of American citizens, the three judges hearing an appeal to the 2nd Circuit Appellate Court (Democrat appointees, all) expressed concern about that breadth. A Federal District Court had ruled the surveillance constitutional, and the ACLU is leading the appeal (and so I’m siding with that crowd, too, on this matter).

In an oral argument that was set for less than 30 minutes and lasted nearly two hours, three judges on a panel hearing the case at the Second US Circuit Court of Appeals in Manhattan probed claims by the ACLU that the federal government’s collection of data relating to “every phone call made or received by residents of the United States” is illegal and unconstitutional.

Indeed,

[Judge Gerard] Lynch asked how well briefed members of Congress were before voting, and questioned how much they understood about the program. At one point, [Judge Robert] Sack chimed in, “We don’t know what we don’t know” about NSA operations.

Lynch and [Judge Vernon] Broderick both questioned why the government’s justification for the bulk phone data collection program would not also extend to bank records, credit card transactions, and other personal data. Lynch asked if the government’s argument would not also entitle it to access “every American’s everything.”

It’s a fine line between the legitimate security needs of the Federal government if it’s to do the job for which we hired it—to protect us from foreign threats and from each other—on the one hand, and our individual liberty and responsibility on the other. Ben Franklin was right.

It’s necessary, also, to keep in mind that without our individual liberty and responsibility, we have no security. It matters not a whit whether we’d be enslaved by our own government or by a foreign power—we’d still be slaves.

Our Constitution has drawn that line: judge-issued warrants, on a showing of probable cause, are necessary to the legitimacy of the collection. These warrants also must be particular to the person and his property, and they also must be particular to the things being sought out. Fishing expeditions are not allowed.

True, “warrants” are sought in advance via a FISA court. But the FISA court is a secret court, a Star Chamber, no matter its currently good intentions. “Warrants” issued by it similarly are secret, which is to say, they don’t exist: they’re not public, and the person being “searched” under them has neither the ability to contest the warrant in court prior to its execution nor the ability to quash at trial the data discovered and/or seized. Nor can there be any guarantee that, given an ultimate victory, whether over an individual warrant that was discovered or over the process (the DC Circuit is hearing a similar appeal, and the thing is likely to find itself in front of the Supreme Court in the next session), the collected data actually will be expunged.

The 2nd Circuit’s case can be followed as American Civil Liberties Union v Clapper, 14-42, US Court of Appeals for the Second Circuit.

Good, and Bad

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The 6th Circuit, in a case involving an assault on an Amish man by various members of his community because he didn’t conform to their standards, came to the right answer, but then it did the wrong thing with its answer.

The assaulters were convicted of their assault, with the crime and the conviction treated by the prosecutor and the trial court as a hate crime. The Circuit Court ruled, though,

Personal conflict, not religion, was the driving motive behind beard- and hair-cutting attacks targeting Amish, an appeals court panel ruled Wednesday in overturning the hate-crime convictions of 16 men and women.

This is good, because our crimes don’t need to be gussied up with froo-froo, and adding “hate” to the definition of a crime in order to create a new crime is such froo-froo. When we criminalize hate, we criminalize the contents of a man’s mind—and that’s no thing a government should be involved with. Full stop. All that needs criminalization—if anything—is the actual deed done. Our thoughts must be beyond government’s reach, no matter the good intentions in trying to go that far.

But the ruling is bad because it overturned the convictions altogether, rather than remanding the case for resentencing. That the men were convicted of a crime with a motivation means the men were convicted of a crime.

Now the victims must consider reliving those events in a new trial, and that’s also bad.

The 6th Circuit’s opinion can be read here.

Freely Traveling and Peaceable Assembly

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The US government offers no adequate method for people to challenge their placement on its no-fly list, a federal judge ruled Tuesday in a case involving 13 Muslims who believe they’re on the list.

US District Court Judge Anna Brown found people lack a meaningful way to challenge their placement on the list, which bars them from flying to or within the United States. She also said the 13 people who sued the government have been unconstitutionally deprived of their right to fly.

The Federal government’s no-fly list is treated as secret, and it’s through this list that the Federal government determines who is barred from flying from or to US airports.

Brown earlier had ruled people had a constitutional right to travel and via this list, the Federal government had violated that right.

How do I get from this to peaceable assembly? These 13 innocents, by their placement—against their will—in company with terrorists who are on the no-fly list is one path. The government’s denial of their right, through denying them a pathway, to protest against that association and be removed from it is another. Preventing these 13 from traveling via a transportation of their choice—and so of associating themselves with travelers of their choice (strangers they may be, but still fellow air travelers)—is a third path.

Appellate Court En Banc Hearings

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The DC Circuit a short time ago held in Halbig v Burwell that Federal regulations regarding Federal health plan exchanges violate Obamacare’s plain language: Federal subsidies, contrary to those regulations, are available only to health plan holders who got their plans through State-run health plan exchanges.

Adam White, in a recent Wall Street Journal piece in the context of that ruling and the Federal government’s subsequent appeal to the DC Circuit to rehear the case en banc, noted a couple of things.

One is how rare en banc (re)hearings are, especially for the DC Circuit:

The DC Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

Then he got into why this is so.

…the court’s high standard, found in the Federal Rules of Appellate Procedure: en banc rehearing “is not favored and ordinarily will not be ordered” unless the case satisfies one of two standards. First, an en banc rehearing may be needed to “secure or maintain uniformity of the court’s decisions.” A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of “exceptional importance.” For the DC Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court’s own workings also can be deemed of “exceptional importance.” In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig was a straightforward application of the Obamacare law as it was written. That the 4th Circuit saw this differently isn’t relevant; the DC Circuit can only rehear its own cases, not those of sister appellate courts. There’s no precedent conflict here. Some might argue that the question has Constitutional significance, and I’d agree with them. However, neither set of litigants raised any sort of Constitutional question, and the case and the ruling turned on the law itself. There’s no Constitutional controversy here, either.

What about the case’s “exceptional importance?” Judge Harry Edwards, who dissented in Halbig, wrote this in a 1987 case [Edwards’ emphasis]:

[N]o judge agrees with all of the decisions handed down in the circuit….” But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that is indispensable to judicial decision-making.” Rather, en banc review must be reserved for “the rarest of circumstances… [with] real significance to the legal process.”

In the context ofHalbig, it’ll be instructive to see whether the DC Circuit’s newly appointed judges are appellate judges who happen to be Democrats or whether they are Democrats who happen to be appellate judges.

The Second Amendment and a Judge’s Misunderstanding

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And a State’s misunderstanding. Fortunately, the Ninth Circuit, that bastion of conservatism, corrected the State’s misapprehension and struck its law regarding a man’s right to carry a firearm outside his home. The Ninth’s dissenter, though, is illuminating, and worrisome.

The situation is this. California is a “may issue” state, meaning that local authorities are allowed to use their discretion in deciding whether to issue a concealed carry permit or license that would authorize a California citizen to carry a firearm outside his home. California is even more restrictive in that “may issue” bit, though; it requires its citizens to satisfy those local authorities that the supplicant applicant has “good cause” for being permitted. That’s the State’s misunderstanding, corrected by the Ninth.

San Diego County residents, including the six plaintiffs in this case, were forced to sue for their licenses because the sheriff’s department, the “local authority” here, routinely—universally—denied licenses because the sheriff could never be satisfied that “good cause” existed. The case made its way to the Ninth with the above victory for the plaintiffs. The majority opinion held, in part, that

One of Heller’s most important lessons is that the Second Amendment “codif[ies] a pre-existing right….”

…a law that destroys (rather than merely burdens) a right central to the Second Amendment must be struck down.

And [citations generally omitted, emphasis in the original]:

We thus disagree with those courts—including the district court in this case—that have taken the view that it is not necessary (and, thus, necessary not) to decide whether carrying a gun in public for the lawful purpose of self-defense is a constitutionally protected activity. Understanding the scope of the right is not just necessary, it is key to our analysis. For if self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego County’s policy. See Heller (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).

And [citation omitted, emphasis in the original]:

But the fact that a small group of people [e.g., retired cops, and others suggested in the opinion] have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

Certainly, reasonable men can disagree about the degree of burden that’s appropriate (demonstrating a reasonable proficiency with firearms, akin to demonstrating a reasonable proficiency with cars as a prerequisite to being issued a driver’s license, for instance; at the other end of the scale, four states have no licensing requirements at all), but clearly that burden cannot become a barrier, as the appellate court acknowledged.

This is where the dissenter’s misunderstanding comes in. Judge Sidney Thomas argued this:

The Supreme Court has instructed that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller…. Carrying concealed weapons in public by definition does not inherently involve defense of hearth and home, so the core of the Second Amendment is not implicated.

But this is a misreading of the Supremes’ opinion as well as of the 2nd Amendment itself. What the Supreme Court said, more fully, in that cite is this:

And whatever else it [the 2nd Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

Plainly, “defense of hearth and home” was offered as an example of what is protected by the 2nd, not an enumeration of the total reach of it. Beyond that, this is the 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Not only is “defense of hearth and home” not numbered here, it cannot be: limiting the security of a free State to defense of points of property prevents on its face the ability to see to the security of the State: those arms must be borne where the threats exist (including preemptively)—by the citizens acting individually, as is the duty of every citizen in a free State, as well as collectively through a militia (or today’s professional armed forces)—for when the threat reaches a domicile’s doorstep, the State’s security already is lost.

But the right to “keep and bear Arms” is an individual right, as well as the collective right of the individuals’ militia, as the Supreme Court also has acknowledged, and for much the same reason. If the individual citizen cannot “keep and bear Arms” nearly anywhere he may choose to go, then he cannot see to his own security (not only his own defense). And if the individual is not secure, then the aggregation of them that is a “free State” cannot be secure.

But the matter goes beyond even that. What is “security?” It’s far more than merely self-defense. Pedantically, the first definition of “security” in Johnson’s Dictionary, contemporaneous with the writing and ratification—by the people of the United States—of our Constitution, is “freedom from fear.” We have to go all the way to the third definition (of five) to get to “Protection; defence [sic].”

And it is exactly that. Any infringement of this right, any limit a Court might presume to place on this Amendment, can only reduce that freedom from fear. Fear comes from many sources, not only from an immediate attack on one’s person. Fear also comes from limitations on individual responsibilities, it also comes from limitations on individual liberty, it also comes from sources only tenuously, if at all, related to politics or general society.

This makes the permissible purposes for carrying firearms very broad, indeed, deliberately vaguely put in the Amendment, and beyond the ability of government to prescribe; they are not limited to “hunting,” or to “personal defense,” or to…. For a government—any branch of it—to determine what permissible purposes may be is to enumerate what can only be a subset of the 2nd Amendment’s range of purposes, and that is a very dangerous determination.

Unfortunately, the Ninth’s majority judges also seem to misunderstand the reach of the 2nd Amendment, focusing as they do on the “purpose” of self-defense, but they got to the correct immediate decision, at least.

The Ninth’s decision can be read here. The Supreme Court’s Heller decision can be read here.