Internet Scofflaw

Judges hate jury nullification, but this is the first time I’ve heard of one tampering with the jury to prevent it.  (Via Volokh  Conspiracy, via Instapundit.)

Sigh.

Or else the FCC won’t approve their merger, according to a press release by the Mountain States Legal Foundation, who is suing:

A demand by a federal agency that two companies agree to a race-based set aside as a condition to approval of their merger today drew a warning that the provision is unconstitutional from a western, nonprofit, public-interest law firm known for civil rights litigation. In a letter to the Federal Communications Commission (FCC), Mountain States Legal Foundation (MSLF) warned the agency that its demand that, as a condition to its approval of a proposed merger between XM and Sirius satellite radio companies, the companies set aside 8 percent, or 24 channels, for “educational and minority broadcasters” violates the Constitution’s equal protection guarantee. MSLF advised the FCC that, although the agency’s use of racial preferences to achieve “diversity” was upheld by the U.S. Supreme Court in 1990, that ruling was overturned in 1995. As a result, argues MSLF, the FCC has no legal basis to demand use of racial preferences or quotas.

(Via the Corner.)

The District of Columbia has made it clear that it will not abide by a mere order from the US Supreme Court. So far it has:

• Denied citizens the right to possess semi-automatic handguns, despite their being the most popular weapons for self defense, despite a clear analogy to the Court’s finding that:
  

  It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

• Denied Dick Heller a permit for his handgun, violating the Court’s order that:
  

  Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Now they’ve gone to the ruling’s central holding. The Court found that:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

“Immediate self-defense” seems clear, doesn’t it? That means that your gun can be assembled, loaded, unlocked, and available. Otherwise you can’t use it immediately. DC doesn’t agree, reports Washington Post blogger Marc Fisher:

The D.C. officials read the decision as an almost academic ruling that although there may be a constitutional right to bear arms to protect yourself, that right is pretty much limited to folks whose house is being broken into right this very second. . . [DC Attorney General] Nickles said “it’s clear the Supreme Court didn’t intend for you to have a loaded gun around the house. . .

D.C. gun owners would be prohibited from keeping their gun loaded unless they could demonstrate that the firearm is “being used against a reasonably perceived threat of immediate harm.”

What does that mean? “Somebody’s approaching your home,” Nickles offered. Or “an actual threat by somebody you believe is out to hurt you.”

How about if there’s been a break-in next door? That’s close, the attorney general said. . .

“I don’t think they intended that anybody who had a vague notion of a threat should have access to a gun,” [DC Mayor] Fenty told me.

(By the way, I was wrong about this and Glenn Reynolds was right. I gave DC too much credit.) They also plan to tie up any gun registrations in red tape:

The mayor and the D.C. Council are enacting emergency law setting up a cumbersome mechanism by which someone who wants to own a gun legally may register a weapon if they clear a background check, pass a vision test and a written test of gun safety knowledge, pay a fee and wait for the bureaucracy to push through all these steps. “There are circumstances where it could take months,” Police Chief Cathy Lanier conceded, and you could almost hear the elected officials around her emitting “heh-hehs” of mischievous delight.

(Via Reason, via Instapundit.)

I think this is actually good news, as long as you don’t live in DC, that is. This will keep the legal conflict alive on the most favorable possible terms, in the very place where the Circuit Court and Supreme Court have already found in favor of the right to bear arms.

James Taranto interviews Alan Gura, the lawyer who argued D.C. versus Heller.  (Via Instapundit.)

In its Heller decision, the Supreme Court ordered (pdf, page 64):

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Clear? Not to the District of Columbia:

District residents can start registering their guns today. But at least one very high profile application was already rejected.

Dick Heller is the man who brought the lawsuit against the District’s 32-year-old ban on handguns. He was among the first in line Thursday morning to apply for a handgun permit.

But when he tried to register his semi-automatic weapon, he says he was rejected. He says his gun has seven bullet clip. Heller says the City Council legislation allows weapons with fewer than eleven bullets in the clip. A spokesman for the DC Police says the gun was a bottom-loading weapon, and according to their interpretation, all bottom-loading guns are outlawed because they are grouped with machine guns.

The Supreme Court’s order was qualified in only one way, that Heller has not been disqualified from his Second Amendment rights. There was no qualification about Heller’s handgun being a revolver, or any other specific sort. I don’t see how this can stand.

I have to say this is clever on Heller’s part. With a Supreme Court decision to back him up, he’s uniquely positioned to force this issue.

The Washington Post calls for the Supreme Court to issue a correction in Kennedy v. Louisiana:

When a newspaper gets its facts wrong, it’s supposed to publish a correction, and, if someone’s reputation has been harmed, a retraction and apology. It can be embarrassing, but the occasional taste of crow probably does more good than harm to the media’s credibility.

But what if the Supreme Court not only blows a key fact but also bases its ruling, in part, on that error?  There was quite a goof in the court’s 5 to 4 decision on June 25 banning the death penalty for those who rape children.

(Previous post.)

In his execrable opinion overturning Louisiana’s death penalty for child rape, Justice Kennedy made an important factual error:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

This is embarrassing for Justice Kennedy, but it ought to be beside the point. The whole point to federalism is that states should be able to make their own laws. What is or is not the law in other jurisdictions ought to be irrelevant. Under Kennedy, the legitimacy of our own state’s laws can depend on other states and/or the Federal government passing similar laws.

(ASIDE: It’s actually worse than that. Florida also has such a law, but it was discounted (page 13-14) because it was overturned by Florida courts. Thus, the legitimacy of your state’s laws depend not only other other states’ laws, but their judiciaries as well.)

So, what’s the threshold? How many states need to pass a law before it becomes legitimate? Evidently more than six, but is ten enough? Fifteen?

Well, perhaps we can make some good out of this. If fourteen states aren’t enough, then we can invalidate some states’ 55-mph (or lower) urban speed limits. (Hawaii’s 50 mph should definitely go!) Only five states require handgun registration; that’s definitely below threshold.

Glenn Reynolds makes an interesting observation about the Heller opinions:

What’s most striking about Heller is that absolutely everybody — majority and dissents — says the Second Amendment protects an individual right.

It’s true that the dissenters’ view of that right is somewhere between “minimalist” (to be charitable) and “incoherent” (to be accurate). But nonetheless, all nine Justices specifically said the right is individual, and thus rejected the “collective right” position on the Second Amendment, a position that’s been the mainstay of gun-control groups, newspaper editorialists, and lower federal courts for decades, and one that was presented by those adherents as so obviously correct that those arguing for an individual right were called “frauds” and shills for the NRA.

Yet the collective right theory could not command a single vote on the Court when actually tested. It was, it seems, a paper tiger all along.

I think the reason for this is all the Second Amendment scholarship in recent decades.  I guess law professors are good for something other than blogging after all!

Still working my way through the opinion. Scalia’s logical analysis of the Second Amendment was surprisingly enjoyable reading.

There was one bit I particularly liked.  After demolishing the idea that the term “bear arms” (when not followed by “against”) was an idiom for military activity, the opinion goes on:

In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

A Virginia court today upheld an Virginia law that blocked the Episcopal Diocese of Virginia from confiscating the property of its dissident congregations. (Opinion here (big pdf).) Many conservative parishes are leaving the Episcopal Church over a host of issues (most famously — but less importantly — over issues regarding sexuality) that call into question whether the Episcopal Church is even Christian any more. Episcopal Dioceses have responded by attempting to confiscate the property of congregations that secede, but the Diocese of Virginia has been blocked by an 1867 law called the Division Statute.

The Diocese laments that the Division Statute is “uniquely hostile to religious freedom,” which is strikingly audacious, given that the Diocese itself is attempting to persecute dissident congregations for exercising their religious freedom. I sympathize with the idea that the court should not involve itself in the affairs of a church, but the Diocese of Virginia initiated that involvement itself by suing the dissident congregations for their property. (Contrary to the Bible’s teaching (1Co 6:1-8), I might add.)

(Via the Corner.)

The Heller decision on prefatory clauses:

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. . . Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. . .

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. . . “ ‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ”

With this enlightening footnote:

JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. . . But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

The Heller decision takes a stand for originalism:

In interpreting [the Second Amendment], we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the
founding generation.

This strikes me as important.

Wired reports:

The Motion Picture Association of America said Friday intellectual-property holders should have the right to collect damages, perhaps as much as $150,000 per copyright violation, without having to prove infringement.

“Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances,” MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

These people must have taken a course on how to keep a straight face.

(Via LGF.)

Unbelievably, this is not the Onion.  The Globe and Mail reports:

First, the father banned his 12-year-old daughter from going online after she posted photos of herself on a dating site. Then she allegedly had a row with her stepmother, so the father said his girl couldn’t go on a school trip.

The girl took the matter to the court - and won what lawyers say was an unprecedented judgment.

Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday that the father couldn’t discipline his daughter by barring her from the school trip.

(Via the Volokh Conspiracy.)

Now that the children of the FLDS cult are going home, we can expect the story to recede from the front page for a while.  It will be back, however, when the state begins individual prosecutions for sexual abuse.  When it does, there will be those who claim that those cases retroactively justify the state’s stunning removal of all the children.  We should point out now that they will not.

According to the Texas Court of Appeals, no more than five children have been shown to be at risk.  Those children should be protected and their abusers prosecuted, but that endeavor is wholly separate from what they did: remove 430 children (and some adults) from distinct families and dump them all in foster care.  Moreover, he state’s precipitous action may end up tainting its case when it does bring individual prosecutions, thereby further harming those children.

On Thursday the Texas Supreme Court ruled that the State erred when it took hundreds of children from their families in the ranch of the FLDS cult. Eugene Volokh points out that the primary error was the State’s failure to treat cases individually. Instead, the State treated the entire ranch as a single “household” and removed all its children (and some adults), most of whom were in no immediate risk.

Now, Judge Barbara Walther, who rubber-stamped the original removal of the children, has compounded her error. Child Protective Services came to a legal agreement with the mothers wherein:

The families won’t be able to leave Texas until Aug. 31 but would be allowed to move back to the ranch. It also calls for parenting classes and visits by CPS to interview children and parents in the child abuse investigation.

Judge Walther first tried to change the agreement, and after being rebuffed, ruled that no children could be returned until every one of the mothers signed the agreement. (Since the mothers are spread throughout the state to be close to their children, this adds a significant delay, which may well have been the judge’s purpose.) It’s hard to fathom any reasonable justification to delay one reunion because a separate family has not yet signed the agreement. Furthermore, it exhibits an amazing judicial arrogance, since the Texas Supreme Court already ruled she was wrong not to treat the families individually.

The principle of individuality is important. I expect that the courts eventually will decide that some of the children are in danger and should be removed for their protection, but such decisions must be based on the facts of those particular cases. If the government can take away your children merely because the children of another family might be at risk, then no one is safe.

UPDATE (6/2): After three days, Walther signs the order.

Orin Kerr has a very interesting theory regarding why we aren’t seeing as many 5-4 decisions.  It has to do with a clever strategy by Chief Justice Roberts. I won’t try to summarize.

An article from last week’s Economist drew my attention to business-method patents, which I hadn’t been aware of before. For the last ten years, it seems, the Patent Office has allowed patents on business strategies. For example, Priceline holds a patent on the method of using Dutch auctions to sell tickets.

All patents are fundamentally anti-competitive, but patenting business methods seems particularly egregious. Therefore, it seems like good news that the US Court of Appeals is considering overturning the case that allowed them.

On the other hand, the NYT quotes one observer who is not bullish about the chances that business-method patents will be overturned, commenting: “Definitions of business method patents always end up being circular. You can’t really ban something unless you can define it and no one is offering a definition we can use.”

The Prior Art, an IP blog, has been following the case and has some other interesting thoughts.