Supreme Court Upholds Individual Second Amendment Right

The Supreme Court ruled today in District of Columbia v. Heller that the District of Columbia's ban on possession of a handgun for self-defense within the home violated an individual right to bear arms protected by the Second Amendment to the United States Constitution. The majority in the 5-4 decision of the Court was written by Justice Scalia, with Justices Breyer and Stevens dissenting.

Congratulations to Alan Gura, Bob Levy, and Clark Neily, attorneys for the respondent, on their successful work to extract a clear ruling from a Court that has avoided the Second Amendment almost entirely since the nation's founding.

While the ruling clearly supports an individual right, it does not answer some important questions like:

• Does the Second Amendment apply to state governments?


• What standard of review should courts apply to gun laws challenged under the Second Amendment?


• Are systems of gun licensing constitutionally permitted?

All of these questions will come up in the future, as this ruling opens the door for challenges to other gun laws. Likely first on the list for challenge is Chicago's prohibition on handguns.

My prediction is that any Supreme Court nominee that doesn't agree with Heller will be swiftly and immediately filibustered. This prediction stands no matter who the President is and no matter who controls the Senate. Congressmen are particularly sensitive on the issue of gun control, especially after the bloodbath following the Assault Weapons Ban, and this will just make them even more sensitive.


UPDATE: Looks like my prediction about Chicago's gun ban being next to be challenged was correct. From the press release at ChicagoGunCase.com:

Following Thursday’s (5-4) ruling by the U.S. Supreme Court in the case of District of Columbia v. Heller that the Second Amendment protects an individual civil right to keep and bear arms, and that a municipal gun ban violates that right, the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ISRA) filed a federal lawsuit (complaint) challenging the City of Chicago’s long-standing handgun ban.

Previous posts on the D.C. Gun Case:
Supreme Court to hear D.C. Gun Case
ABA Journal article on the D.C. Gun Case

 

Martin Luther King, Jr. on the Law

"It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that's pretty important."

-Martin Luther King Jr.

ABA Journal article on the D.C. Gun Case

The November issue of the ABA Journal has a feature article about the D.C. Gun Case. This is the first article I've seen that carefully examines the role of the NRA in trying to torpedo the case and obtained comment from all of the lawyers.

After they had assembled a group of six plaintiffs, Levy and Neily filed Parker on Feb. 10, 2003. Also on board by then was Alexandria, Va., litigator Alan Gura. He would do most of the heavy lifting, crafting pleadings and arguments as the case slogged on for four years. But Levy and his lawyers hadn’t heard the last of the NRA.

Seven weeks later, on April 4, the NRA filed Seegars through veteran outside counsel Stephen P. Halbrook of Fairfax, Va. Without even calling the Parker lawyers first, he moved to consolidate Seegars and Parker. Levy and his colleagues were not pleased.

“You just don’t do that to another lawyer,” Neily says. “Honestly, that set the tone for things. It was not well-received.”

Instead of the Second Amend­ment claim the Parker plaintiffs had envisioned, the NRA loaded its case with a Fifth Amendment due process claim, another mixed due process and equal protection argument, a civil rights claim under section 1981 of the Civil Rights Act of 1866, and a theory that the district lacked the authority under its municipal code to enact the ban in the first place.

It's well worth the read if you're interested in the political underpinnings of gun rights in America.

The plaintiffs have a blog with links to all of the filings, if you want to keep up with developments.

Being a Happy, Healthy, Ethical Lawyer

Orin Kerr posted a question on the Volokh Conspiracy from a not yet employed 3L looking for career advice. There are good suggestions in the comments, but the best one is from "Anonobvious," who linked to Patrick J. Schiltz's law review article, "On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession."*

It was written in the late 90s, so the numbers are a little off (though that amplifies the points made), but the reasoning is simple: Big law firms are driven by money. Money does not make one happy. People driven by pressure to make money are more likely to behave unethically. If you want to be happy and ethical, stay away from big law firms.

On why big firm lawyers don't give up a little extra money for a lot more happiness:

More importantly, though, the flaw in my analysis is that it assumes that the reason lawyers push themselves to make so much money is the money itself. In other words, my analysis assumes that the reason lawyers want to earn more money is that they want to spend more money and enjoy the things that money will buy. When put in those terms, giving up 600 hours of life for another $40,000 on top of a $160,000 salary makes no sense for most lawyers. What you need to understand, though, is that very few lawyers are working extraordinarily long hours because they need the money. They are doing it for a different reason.
Big firm lawyers are, on the whole, a remarkably insecure and competitive group of people. Many of them have spent almost their entire lives competing to win games that other people have set up for them. First they competed to get into a prestigious college. Then they competed for college grades. Then they competed for LSAT scores. Then they competed to get into a prestigious law school. Then they competed for law school grades. Then they competed to make the law review. Then they competed for clerkships.229 Then they competed to get hired by a big law firm.230 Now that they’re in a big law firm, what’s going to happen?
Are they going to stop competing? Are they going to stop comparing themselves to others? Of course not. They’re going to keep competing — competing to bill more hours, to attract more clients, to win more cases, to do more deals. They’re playing a game. And money is how the score is kept in that game.

On the difference between "legal ethics" and what people generally think of as ethical:

As a law student, and then as a young lawyer, you will often be encouraged to distinguish ethical from unethical conduct solely by reference to the formal rules. Most likely, you will devote the majority of the time in your professional responsibility class to studying the rules, and you will, of course, learn the rules cold so that you can pass the Multi-State Professional Responsibility Exam (“MPRE”). In many other ways, subtle and blatant, you will be encouraged
to think that conduct that does not violate the rules is “ethical,” while conduct that does violate the rules is “unethical.”
It is in the interests of your professors, the organized bar, and other lawyers to get you to think about ethics in this way. It is a lot easier for a professor to teach students what rules say than it is to explore with students what it means to behave ethically.

On how the Stoics have it right about how to truly find happiness:

This is the best advice I can give you: Right now, while you are
still in law school, make the commitment—not just in your head, but in your heart—that, although you are willing to work hard and you would like to make a comfortable living, you are not going to let money dominate your life to the exclusion of all else. And don’t just structure your life around this negative; embrace a positive. Believe in something—care about something—so that when the culture of greed presses in on you from all sides, there will be something inside of you pushing back. Make the decision now that you will be the one who defines success for you—not your classmates, not big law firms, not clients of big law firms, not the National Law Journal. You will be a happier, healthier, and more ethical attorney as a result. ... (“[T]here may be no way to permanently increase the total of one’s pleasure except by getting off the hedonic treadmill entirely. This is of course the historic teaching of the Stoic and Epicurean philosophers, Buddha, Jesus, Thoreau, and other men of wisdom from all ages.”) (quoting Philip Brickman & Donald T. Campbell, Hedonic Relativism and Planning the Good Society, in ADAPTATION-LEVEL THEORY: A SYMPOSIUM 287, 300 (M.H. Appley ed., 1971).

Please, if you are a law student or a lawyer, read this article. It may be some of the most valuable time spent in your career.


* - 52 Vanderbilt Law Review 871.

Muckraking of the First Order

Radley Balko has a shocking account of how Steven Hayne cornered the autopsy market in Mississippi. During his years, he's testified that a skeletonized woman was strangled (even though there was no muscle tissue to make that determination), testified that two people's hands were on a gun from the bullet wound, and performed 1,800 autopsies per year (the National Association of Medical Examiners (NAME) says a single medical examiner should perform no more than 250 autopsies per year and will not accredit a practice with more than 325 annually).

Even worse, there's a man on death row because of his testimony.

Consider Jeffrey Havard, convicted in 2002 of killing his then-girlfriend’s six-month-old daughter. Havard claims he was bathing the child when she slipped from his hands and hit her head on the toilet. But Hayne testified at Havard’s trial that bruises, scratches, and cranial bleeding indicated a case of shaken baby syndrome. Hayne also testified that the child’s anus was dilated, indicating sexual abuse. The DNA evidence was inconclusive: Havard’s DNA was not found on the baby, but both his DNA and hers were found on a sheet from the bed where she had gone to sleep that night, which was also the bed Havard shared with his girlfriend.

Because there were no witnesses to the incident, the evidence of sexual abuse was key to securing Havard’s conviction and death sentence; the charge was “murder in the commission of sexual battery.” Havard, who had no money, was assigned a public defender. His lawyer was suspicious of Hayne’s conclusions and at trial asked the court for funds to hire an independent pathologist to review Hayne’s findings. The judge refused, ruling that Hayne, the prosecution’s witness, was qualified and sufficient.

After Havard was convicted, attorneys from Mississippi’s post-conviction relief office, which represents indigent defendants in their appeals, were able to get James Lauridson, Alabama’s former state medical examiner, to review Hayne’s work in the Havard case. According to an affidavit he filed with the Mississippi Supreme Court in 2004, Lauridson found significant problems with Hayne’s testimony. Most notably, factors not related to abuse—e.g., rigor mortis—can often cause the anus to dilate after death.

In February 2006 the Mississippi State Supreme Court nevertheless upheld Havard’s conviction. It refused even to consider Lauridson’s review of Hayne’s work, ruling that any expert testimony refuting Hayne’s conclusions had to have been introduced at trial. Havard’s attorney had tried to do that, of course, but the trial judge denied him the necessary money.

This is why being a public defender is such an important job. The PD is the only person who has the opportunity to stop a wrongful conviction before it happens.

Results Oriented Thinking in the War on Terror

Over at the Volokh Conspiracy, Orin Kerr works himself into knots in two convoluted posts about the al-Marri case (4th Circuit rules that Qatari student living in the U.S. can't be held indefinitely as an "enemy combatant"). Prof. Kerr trots out a hypothetical familiar to anyone who has studied Criminal Procedure generally and the 4th Amendment exclusionary rule in particular.

To see why I think the results of Al-Marri are so puzzling, consider the following hypothetical. An Al-Qaeda cell of five individuals, all citizens of Qatar, enter the United States on student visas. The cell members' plans are to detonate a "dirty bomb" in New York City, and they rent a hotel room in Jersey City, New Jersey (just across the river) to build the dirty bomb. One of the hotel employees thinks the group is suspicious, and he calls up the local police and tells an officer that there is a group of Arab men in the hotel staying in one room and acting very secretively.

The officer visits the hotel when the men are out one day and he requests that the hotel employee show him the room. The employee agrees; he opens the door with his key and shows the officer inside. They immediately see the bomb-making materials along with several photographs of Osama bin Laden and the 9/11 attacks taped to the walls. The officer contacts the FBI and the Department of Homeland Security. An hour later, the FBI has obtained a search warrant for the room and arrest warrants for the five men.

The men are arrested and charged criminally. A search of the hotel room discovers all the bomb-making materials. The room search also uncovers videotapes the men made celebrating their pending attack; the men each spent a few minutes on tape describing what attacks they will execute and hoping and praying that the streets of New York will "run red with Jewish and imperialist blood."

But there's a major problem with the criminal case: The evidence against the cell members was obtained in violation of the Fourth Amendment. Under Stoner v. California, the men have a reasonable expectation of privacy in the hotel room and the hotel clerk lacks authority to consent to a law enforcement search. As a result, the evidence against the five men was obtained in violation of their Fourth Amendment rights. The evidence -- including the videotapes in which they each celebrated the attacks and confessed to their plans -- must be suppressed.

Later, after a long comment thread full of mostly skeptical comments (pretty natural, since we've all seen this hypo before in law school), Prof. Kerr made another post to explain "the continuum between war and crime." In it, he creates a list of scenarios and asks readers to think about whether they should be handled under the "war" rules or the "crime" rules.

The problem with Prof. Kerr's premise is that he has in one of the most common poker leaks amongst amateur players: results-oriented thinking. This leak is at play every time some player tells you about how he folded 77 to a big preflop raise, but then the flop came 773 (which would have given him the four 7s for the nuts). The only way he can justify playing a medium hand like 77 in the face of a big raise is to talk about what happened after the flop; it doesn't make sense to play it if you don't know what cards are going to come next.

Prof. Kerr's hypothetical is useless, because it assumes we know everything about this "al-Qaeda cell" when we're making the decision about how to play the game. In the real world, we don't know everything about every suspect and we can't decide how to play the game based on assumptions about what's going to happen in advance. That's never the case in reality.

In the real world, you have to decide how you want to play the game without knowing what everyone else is holding or what's going to come out on the flop. You can play poker playing every hand in the hope that you'll draw lucky. It's stupid, but you'll only lose your money (probably to people like me).

We can't play the game of law enforcement that way, though, since we'll end up losing something much more important than money. We'll end up losing our civil liberties.

Of Angels, Coffee, and Trademarks

Bruce Godfrey posted about a coffee shop in Utah ("Just Add Coffee") that was selling shirts depicting the Angel Moroni having coffee poured into his trumpet. The LDS Church was not amused and sent a letter to the coffee shop owners asserting that the Angel Moroni was a registered trademark and they had to stop selling the shirts.

From the Deseret News story:

In a letter sent to Beazer's home last week, the shop owner was informed that the image of Moroni is a registered trademark of the LDS Church. The letter also requested that Just Add Coffee discontinue use of the image in advertising campaigns.
...

Attorneys for Just Add Coffee have sent a letter to church officials to inform them of the shirts and request that the shop owners be sent proof of the trademark.
"If they provide proof, we're going to comply," Beazer said. "We don't want to break any laws or anything."
Church spokesman Scott Trotter confirmed to the Deseret Morning News on Thursday that the image is an LDS Church trademark.

If the LDS Church has a trademark on the Angel Moroni, then there's a clear violation of their rights and the coffee shop owners are infringing. I say if, because there's no evidence that the LDS Church has any registered trademark for the Angel Moroni.

As noted on the Deseret Spectacle blog, a search of the U.S. Trademark Office's database yields no results for the Angel Moroni. I did a search for all marks registered to Intellectual Reserve (the LDS Church corporation that owns their intellectual property rights) just to avoid missing any image marks (like this one), but no results for the Angel Moroni.

Now the Washington Post picked up the story, continuing to accept the assertion from the initial story that the LDS Church has trademarked the image of the Angel Moroni.

Admittedly, it's possible that the LDS Church has a state trademark in Utah, just not a Federally registered trademark. In preparation for my Trademark class tonight, I decided I'd search the Westlaw database of state trademarks, going back to 1900. Still no luck finding any Angel Moroni marks.

The upshot of this research is that the LDS Church does not have a registered trademark on the Angel Moroni. At best, they may have some common law trademark rights acquired through using the depiction of the Angel Moroni, but that's a far, far cry from a "registered trademark" as asserted by the LDS Church lawyers and spokesmen.

And here, I thought that Mormons weren't supposed to lie about stuff.

Fighting for the Law

"The people should fight for their law as if defending the city's wall." -Heraclitus of Ephesus, Fragment 100"

This quote was so inspirational that one lawyer got it tattooed on his arm in the original Greek (scroll down).

The Fragments can be found here with the Greek and English side-by-side, for those interested.

Lincoln on Litigation

"Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough." -Abraham Lincoln