Tag Archives: freedom

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.

What about a Palestinian’s right to freedom?

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This is the headline of a FoxNews op-ed by Faheem Younus, President of the Baltimore branch of Ahmadiyya Muslim Community USA and a senior fellow at the University of Baltimore’s Hoffberger Center for Professional Ethics. It’s a fair question.

Younus asks us to

think of the current Israeli-Palestinian conflict in terms of the movie “Shawshank Redemption,” which shows the quest for freedom of an innocent banker serving two life sentences under hopeless circumstances. The cast goes like this: the criminals are Hamas, the warden is Netanyahu, Andy—the banker convicted of murder—is your average Palestinian, and Shawshank is Gaza.

His strawman includes his claim that ordinary Palestinians—Gazans, actually—are prisoners of the Israeli Prime Minister Benjamin Netanyahu. Then Younus expands his claim:

But lately, the Palestinian’s moral right to exist has become a political wrong to list.

Recently, it has become evident that millions of innocent Palestinians will serve life sentences in this Shawshank, that there is no two-state solution, that their yearning for freedom is being swallowed by the biblical dream of a Greater Israel, stretching all the way from the Jordan River to the Mediterranean.

Of course, Israel has made no such claim. Israel favors a two-state solution (which, of necessity, includes the Palestinians’ “moral right to exist”), having learned from the West’s colonial days, followed by general colonial independence and trade, that the path to prosperity, for Israelis and for Palestinians, including Gazans, is through states freely trading with each other.

While purporting to decry Hamas’ behavior, though, what Younus does not discuss is that when Hamas and Fatah merged under the Palestinian Authority and Mahmoud Abbas’ leadership, the PA became a terrorist state. Younus denies this (without substantiation), and the PA’s initial rhetoric also denied it. The ensuing empirical facts, though, prove the terrorist nature of the unity government, this new PA. The PA launched their latest terror war just weeks after the unity government’s formation; it has pursued its terrorism with rocket attacks against Israel’s nuclear facility; it has pursued its terrorism with endless rocket firings into Israel with the sole purpose of killing as many civilians and children it can; it has pursued its terrorism by storing its rockets in hospitals, UN facilities (it’s impossible to believe the UN had no complicity in this), and private homes; it has pursued its terrorism through firing from these same homes and hospitals; it has pursued its terrorism by using Gazan civilians and children as personal shields in engagements with the IDF; the list goes on and on and on.

The ensuing empirical facts also include these two: the Fatah part of the PA has been utterly silent on this terrorism. Fatah’s silence is a deafening roar of approval of the PA’s terrorism. Also, Abbas has openly stated he agrees with the attacks.

Gazans—ordinary Palestinians—are not at all prisoners of Netanyahu or of Israel generally. They’re hostages of the terrorist PA, and badly abused by it.

As to that rejection of a two-state solution and a favoring of Younus’ mythical Greater Israel, this is what Netanyahu has said:

“If we were to pull out of Judea and Samaria, like they tell us to…there’d be a possibility of thousands of tunnels” being dug by terrorists to attack Israel, [Netanyahu] said. There were 1,200 tunnels dug in the 14-kilometer border strip between Egypt and Gaza alone…. “At present we have a problem with the territory called Gaza,” the Prime Minister said. But the West Bank is 20 times the size of Gaza. Israel, he said flatly, was not prepared “to create another 20 Gazas” in the West Bank.

The Palestinians do, indeed, have their own right to freedom. And to the prosperity that goes with freedom. The path to that, though, demands that the PA release these innocents from their bondage. The path to that demands an end of terrorist wars against Israel. The path to that demands a verifiable—and verified—removal of the PA from its avowed goal of the utter destruction of Israel.

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.

Obama’s “Peace Talks”

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This article is triggered by Gerald Seib’s recent piece in The Wall Street Journal.

A White House statement cited by Seib:

The President…reiterated the United States’ serious and growing concern about the rising number of Palestinian civilian deaths and the loss of Israeli lives, as well as the worsening humanitarian situation in Gaza[.]

Not a word about the primary cause of those Palestinian deaths, just the outrageous moral equivalence asserted between the terrorists’ assault on Israel and Israel’s defense against that assault, and through that the tacit implication (excuse the redundancy) that those Palestinian civilian deaths are Israel’s doing.

No harm to peace-making by Obama’s Cabinet there.

And this:

Meanwhile, Israel also was squirming over the talks between the US and five international powers and Iran over the Iranian nuclear program. As it became obvious that those talks were moving in the direction of an agreement that would leave Iran with a continuing capacity to enrich uranium, Israeli discomfort grew. When the talks were extended earlier this month for four more months, it grew further. A separate issue, yes, but one that affects the atmosphere.

No, this is not a separate issue; Iran’s nuclear weapons program and the Palestinian Authority’s terror war against Israel are inextricably intertwined. Let’s leave aside the fact that Iran is largely funding and almost exclusively arming the PA (apart from the latter’s primary industry of rocket-making within the Gaza Strip (itself supplied by inputs from Iran)). Iran has as its own goal, to use Iran’s words, of “wiping Israel from the map.” What does the Obama administration, and his Secretary of State (and Seib) think Iran will do with its uranium, enriched to weapons grade? The question answers itself: Iran will attack Iran with nuclear weapons, or supply the weapons to the PA (and/or other terrorist organizations in the region—Hezbollah comes to mind) for the purpose of seeing them used in Israel.

Iran’s nuclear weapons program is as much a threat to Israel’s existence as is the PA’s constant terror attacks. The PA is a client of Iran.

President Barack Obama, and his Cabinet, surely know this. From this, another question raises itself: what is the value—in fact, what is the purpose—of Obama’s “peace talk” efforts as they concern Israel and the Palestinian Authority?

Taliban and ISIS

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ISIS has expanded the systematic destruction of Iraq’s cultural treasures. In Mosul, the tomb of Jonah, revered by Judaism, Christianity, and Islam alike, has been “turned…to sand” by ISIS explosives placed so as to achieve the barbarity in one explosion.   The Nabi Younes Mosque which housed the shrine also has been destroyed.

This gang has been systematically destroying all of the shrines and graves in the territory it has seized from Iraq, under the claimed…theory…that it’s unholy to worship at such things or to venerate anyone but Mohammed. On the other hand, they also find it convenient simply to rob from valuable collections of antiquities, such as the Mosul Museum.

How does one discriminate between this barbarian and that one? It isn’t necessary. Both want the same response.