A Troubling Remark


Yesterday, the Supreme Court heard oral arguments in the case of New York State Rifle and Pistol Association, Inc. v. City of New York. The case challenges the constitutionality of a city gun control regulation which forbade persons with a so-called premises licenses to transport their firearms any place other than on of seven approved firing ranges within the city. They could not even be removed from their licensed premises to be taken out of town.

New York City prevailed in the case in District Court and in the Second Circuit Court of Appeals, but when the Supreme Court took the case, the City and the State of New York changed their laws and regulations in an attempt to moot the case. Under the new regime, firearms could be transported out of town for certain purpose as long as the trip was “continuous and direct.” No allowance was made for stops for fuel, meals, or overnight rest.

Both the petitioners and the United States argued that the case was not moot because the regulation was still unreasonable, and a couple of the justices seemed to favorably consider the idea that there was still a live controversy and that the City should not be able to dodge having its gun control regime tested against the standard set by D.C. v. Heller. The petitioners argued that allowing a government to moot a case after the Supreme Court accepts it for review would be a bad precedent. Speaking for the United States, the Deputy Solicitor General argued that the case was not moot because the petitioners could still seek money damages and because the text and history of the Second Amendment “condemn” New York City’s transport ban.

There was push back from the liberal justices—the most disturbing to me was a remark by Justice Sotomayor characterizing Heller as a “made-up new standard.” IANAL, but it seems to me that Antonin Scalia’s opinion clearly lays out what the Second Amendment has meant since it was enacted. Moreover, her comment seems to show a certain intellectual dishonesty. She is certainly not strict constructionist, so new standards of interpretation shouldn’t be a problem per se. I suspect that she would be all for the application of stare decisis to Rove v. Wade, so why not to Heller?

The court has been dodging Second Amendment cases recently. The justices may use mootness to punt this one. We shall see.

Meanwhile, there are more 2A cases in the pipeline.

Nice Court You’ve Got There—It’d Be A Shame If Something Happened To It


Senator Whitehouse (D-RI) has filed a brief with the Supreme Court in case of New York State Rifle and Pistol Association v. City of New York. In his brief he warns the court not to take up the case, lest it find itself ruling in favor of the Second Amendment claim made by the petitioner.

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics,”

FDR’s threat of court packing worked 80-some-odd years ago. I hope the justices ignore this one.

BTW, Dick Durbin, Kirsten Gillibrand, Richard Blumenthal, and Mazie Hirono all signed on to Whitehouse’s threat to the court.

First Amendment News


Following along the course set in Matal v. Tam, the Supreme Court has ruled in Iancu v. Brunetti that the Lanham Act’s prohibition on registration of immoral or scandalous trademarks violates the First Amendment.

Justice Kagan wrote the decision which was joined by Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Alito wrote a concurring opinion. Roberts and Breyer filed opinions concurring in part and dissenting in part. Sotomayor filed an opinion concurring in part and dissenting in part which Breyer joined.

UPDATE—From today’s opinion:

The government may not discriminate against speech based on the ideas or opinions it conveys.

UPDATE 2—Justice Alito, concurring:

But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.

Congress, the Supreme Court, and Impeachment


President Trump has remarked that if the House were to pass articles of impeachment against him that did not properly charge him with a crime (Orange Man Bad isn’t even a misdemeanor), he might go to the Supreme Court seeking to have the impeachment quashed. Various pundits and academics have tut-tut-ed and stated that the President doesn’t understand how impeachment works. Do they?

Alan Dershowitz has a piece over at The Hill suggesting that the President may not be too far off base.

Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.

Recall that when a president has been impeached by the House, the Supreme Court’s chief justice presides at his Senate trial and the senators take a special oath. This special oath requires each senator to swear or affirm that “in all things pertaining to the trial … [to] do impartial justice according to the Constitution and the law” (italics added).

If the House were to impeach for a non-crime, the president’s lawyer could make a motion to the chief justice to dismiss the case, just as a lawyer for an ordinary defendant can make a motion to dismiss an indictment that did not charge a crime. The chief justice would be asked to enforce the senatorial oath by dismissing an impeachment that violated the words of the Constitution. There is no assurance that the chief justice would rule on such a motion, but it is certainly possible.

No one should criticize President Trump for raising the possibility of Supreme Court review, especially following Bush v. Gore, the case that ended the 2000 election. Many of the same academics ridiculed the notion that the justices would enter the political thicket of vote-counting. But they did and, in the process, weakened the “political question” doctrine. The case for applying the explicit constitutional criteria governing impeachment is far more compelling than was the case for stopping the Florida recount.

So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional.

Read the whole thing.

Meanwhile, at the Supreme Court …


… there will be a oral argument in a case in which I have more than a passing interest. After the 2010 census, Maryland’s 6th Congressional District was gerrymandered to eliminate any chance of a Republican being elected. All of Carroll County had been in the old 6th District along with all the other Western Maryland counties, Frederick, Washington, Allegany and Garret. Part of the rural west of Montgomery Count was also in the district in order to get the population up to match the other districts in the state. Bits of Carroll County are now in two districts (1 and 8). I’m now in District 8 which extends down to the DC suburbs. I have neighbors just west of me who are in District 1 which stretches across the top of the state and onto the Eastern Shore all the way to the Atlantic Ocean.

Last year, a three judge panel of the U. S. District Court found the gerrymander unconstitutional under the First Amendment. The State has appealed to the Supreme Court (Lamone v. Benisek). Amy Howe has an excellent synopsis of the case thus far over at ScotusBlog.

UPDATE—Corrected a typo.

Democrats and New Deal Principles


It’s not surprising that the Democrats are nostalgic about The New Deal. It changed the country’s relationship to the government in a way that cemented their dominance in Congress for a couple of generations. They now have their hands around the House of Representatives, and they’re looking to add the Senate in 2020.

The New Deal also locked in Progressive domination of the Supreme Court for many years. FDR’s threat of expanding the court by packing it with additional justice who would rule in his favor effectively slowed judicial opposition to The New Deal so that the appointments during the 20 years of the Roosevelt/Truman administration could remake the balance of the judiciary.

Politico has a post up about 2020 Democrat presidential candidates starting to talk about packing the Supreme Court. Pete Buttigieg (who?) and Beto O’Rourke have said that they might expand the court. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand also have said they might favor such an expansion.

“We are on the verge of a crisis of confidence in the Supreme Court,” said Harris (D-Calif.). “We have to take this challenge head on, and everything is on the table to do that.”

Gillibrand said in an interview that she believes that Justice Neil Gorsuch essentially possesses an illegitimate seat after Garland was denied even a committee hearing. The New York Democrat added that the Senate should move swiftly to impose strict ethics rules on the Supreme Court.

“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” said Warren (D-Mass.), who mentioned bringing appellate judges into Supreme Court cases as an option.

Again, we shouldn’t be surprised that the Left has lost confidence in a court that has become more originalist in its outlook and less supportive of a living constitution that morphs into whatever Progressive cause du jour demands, and we should expect some of them to try to sell the idea of court packing through expansion during the coming election cycle.

Stay tuned.

The Bladensburg Cross


Earlier this week, the American Legion and the Maryland-National Capital Park and Planning Commission had what should be their final day in court over the Bladensburg Cross, a war memorial to the town’s World War I dead. The American Humanist Association has sued to have the 91-foot tall concrete cross removed because … well, it’s a cross, and that’s too Christian. The Fourth Circuit Court of Appeals agreed with the Humanists. The American Legion and Planning Commission appealed.

Part of the defense of the monument is the notion that it is a memorial to dead soldiers that takes the same form as their grave markers. Matthew Vadum reporting at The Epoch Times on the Supreme Court hearing notes that Neal Katyal, the Park Commission’s lawyer, told the court—

In the context of World War I, crosses have a secular meaning in that they honor those who perished in the conflict, Katyal said.

The “dominant image of the time, everything from that poem to art, to the war bond advertisements that the United States Government put, to the 1924 congressional resolution, all did use this cross.”

“That poem” refers to words written by Lt.-Col. John McCrae of the Canadian Expeditionary Force in 1915 after he buried a friend who was killed in combat in Belgium. It begins, “In Flanders fields the poppies blow, between the crosses, row on row …”

The Humanists claim that the monument dishonors the non-Christian war dead. The American Legion respond that such a claim is nonsense, noting in one of its briefs that it had many non-Christian members at the time the memorial was built. In fact, J. Moses Edlavitch, a Jewish veteran who was one of the local chapter’s leaders, signed the deed for the land upon which the monument was eventually built.

This leads to a question about the facts of the matter. The monument honors the town’s war dead. It’s in a shape reminiscent of a grave marker. Do any of the dead being honored actually have non-cruciform headstones?

Meanwhile, we can wait for the Supreme Court to rule.