Archive | July 9, 2013

Multiple Location Search Warrants and Plural Nouns in the Constitution

The Fourth Amendment protects people in their “houses, papers, and effects” – all plural, and understood to extend to an indefinite number of such belongings. That is, the right is coextensive with however many things a person happens to have.

However, there is an interesting difference in the language of the warrant clause: a warrant must describe the “place to be searched, and the persons or things to be seized.” Why does the search warrant provision use the singular, while the arrest warrant provision use the plural? This could suggest a rule against multiple location search warrants, a rule that has never existed as far as I know.

What makes it even odder is that earlier state constitutions all referred to “places,” so this is not just a case of cut-and-past. And while the matter of a missing letter may seem to be the kind of thing that would escape the drafters’ notice, the Framers made similarly detailed one-letter edits to the text of the Fourth Amendment.

I found one case involving a (failed) challenge to multiple location warrants based on the “place” language – in the Indiana Constitution’s search provision, which uses the singular across the board, and thus does not present the question so sharply. See Brown v. State, 239 Ind. 358, 363 (Ind. 1959). Other state constitutional provisions also tweak the Fourth Amendment for consistency between singular and plural. See, e.g., Nevada Const. art. 1, § 18.

Some may think this illustrates the limits of textualism, though it would seem the difference between one warrant for multiple locations and multiple warrants for separate locations does litte more than increase judicial signatures. A more substantial question would be about using suspicion about one location to “spill over” to another.

Does anyone know the origins of the […]

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The Multilateralist Blog Interview on How American Conservatives See the UN Today

David Bosco, who authors the outstanding “The Multilateralist” blog at Foreign Policy (where he is a contributing editor and who is also my American University colleague in the School of International Service), conducted an interview a few weeks ago with the Heritage Foundation’s Brett Schaefer and me on the United Nations.  The idea was to ask how American conservatives – Brett and me – view UN-US relations these days.  Brett is the editor of a fine book,ConUNdrum: The Limits of the United Nations and the Search for Alternatives; I am the author of a 2012 book, Living With the UN: American Responsibilities and International Order.  The Multilateralist piece is a transcript – outstandingly edited by Bosco – titled, “Can Conservatives Reconcile with the United Nations?”  (The link is at the Foreign website; free registration to access. Volokh readers’ lives will not be complete without both Brett’s and my books; you can read a sample couple of chapters from my book here in pdf at SSRN.) […]

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The Supreme Writer on the Court: The Case for Kagan

Justices Scalia and Kagan have joined forces on deer-hunting trips. Do they share the same gift for writing as well?

In only a few years’ time, Kagan’s engaging yet biting opinions and dissents have astonished a once-skeptical Left — and have catapulted her to the top of the liberal bloc, if not the entire Court.

I offer three reasons below.

Razor-sharp clarity.

Kagan has emerged as one of the bench’s clearest writers of opening paragraphs. Take her first paragraph in Florida v. Harris, writing for a unanimous Court:

“In this case, we consider how a court should determine if the ‘alert’ of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s relia­bility. See 71 So. 3d 756, 775 (2011). We think that de­mand inconsistent with the ‘flexible, common-sense standard’ of probable cause. Illinois v. Gates, 462 U. S. 213, 239 (1983)” (Florida v. Harris).

This quick three-sentence opener gives lawyers, lower-court judges, and the public just what they need. And yet she also spins the state supreme court holding so it sounds unreasonable on its face, giving the opening paragraph the force of syllogism.

In that regard, she crafts openings to opinions the way the very best appellate lawyers craft their statements of the issues.

Even more incisive are the bird’s-eye-view openings to her dissents. Consider the start of her recent dissent in American Express v. Italian Colors, and watch how it chugs along toward her Scalia-esque — and already widely quoted — “Too darn bad”:

“Here is the nutshell version of this case, unfortunately obscured in


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Arms and Persons

Eugene Kontorovich has argued that the plural “Arms” in the Second Amendment implies a right to more than one gun per person. I argued that “Arms” had to be plural to match “the right of the People,” plural, and so the plural tells us nothing about number of guns per person. Eugene responds with a comparison to the Fourth Amendment: “Is the ‘people’s’ right to be secure in their ‘houses, papers, and effects’ even arguably singular, or be [sic] restricted to one house, one paper, one effect?”

Fair enough, but Eugene skips a telling counterexample. The Fourth Amendment also protects “The right of the people to be secure in their persons ….” The word “persons” had to be plural — just as “houses,” “papers,” “effects,” and “Arms” all had to be plural — to match the plural word “people.” Nevertheless, each individual presumably has a right to be in secure only in his own, singular, person. So, the plural nouns in the text simply do not answer the question of number per person; even though both “persons” and “papers” are plural in the text, each individual has a right to be secure in his person (singular) and his papers (plural). At least as a matter of grammar, “Arms” could be like “papers” (presumably many per individual), or like “persons” (presumably one per individual).

Again, I am sympathetic to Eugene’s ultimate conclusion, but I don’t think that grammar proves the point. […]

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Response to Prof. Rosenkranz: ArmS & the Man – or Arms & the People

Nick takes issue with my suggestion that the Second Amendment on its face bars laws restricting people to one gun, such as that currently proposed by Gov. Quinn in Illinois.

My (first) argument is not an originalist or purposivist one, but rather a purely textual one. The primary meaning of “arms” is plural. Nick argues the plural is used to go with “the right of the people.” The real “reason,” I think, the plural term is used is probably because that is how it was written in the English Bill of Rights (and the Magna Carta). The question is what are the consequences of those possibly unconscious decisions and associations for a textual reading of the Constitution.

Certainly the plural arms goes with the plural “people.” But both are independent drafting choices. For example, the right of the people could have been “to be armed,” which would leave out the plural. Or it need not have been written in terms of “the People.” Nick compares it the Fourth Amendment. I like that: is the “people’s” right to be secure in their “houses, papers, and effects” even arguably singular, or be restricted to one house, one paper, one effect? Could papers be limited to one piece of paper? It is not “people” that makes “papers” plural, it is the way people commonly use paper.

Turning to purpose, the Framers used a plural word; they certainly did not intend to rule out “one gun” rules, because as far as I know, they had never encountered such restrictions, and were more interested in gun minimimums than maximums. None the less, the plural has consequences. Nor are the consequences absurd (this still permits two-gun limits) though they may be undesirable from certain policy perspectives. Nor is the reading contradicted by substantial originalist […]

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Does the Plural “Arms” Imply Multiple Guns Per Person?

Eugene Kontorovich has posted (here and here) arguing that it would be unconstitutional to limit each person to carrying only one gun, because the word “Arms” in the Second Amendment is plural. I applaud his attention to text, and I am sympathetic to his bottom line, but I don’t find the textual argument persuasive. The heart of his argument is this:

Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm. To be sure, “arms” is one of those terms where the plural can refer to the singular. But it is not one of those “sheep” words where there is no singular; arm, firearm, weapon or gun would all clearly indicate the singular, but those words were not used.

Yes, “Arms” is plural, and yes, one can write, for example, “firearm” or “gun” if one wants to clearly convey the singular. But a singular noun would not have worked in this context, because the Second Amendment (like the First and the Fourth; cf. the Ninth) protects a “right of the people” — plural. It would make no sense to say that “the right of the people to keep and bear gun shall not be infringed.” The plural “people” requires the plural “arms” — even if the idea were, in fact, one gun per person.

Again, I am sympathetic to Eugene’s ultimate conclusion. But the fact that “Arms” is plural does not prove the point. […]

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How to Read a Legal Opinion: A Guide for New Law Students

I’ve posted this before, but I thought some of our newer readers might appreciate a re-post of my short article on how to read legal opinions: How to Read a Legal Opinion: A Guide for New Law Students. It’s intended for new law students, but I understand that at least some non-lawyers have found it helpful, too. My apologies for the re-post to those who have seen the article before. […]

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Video Interview with Elena Kagan

Justice Elena Kagan recently did a video interview with Jeffrey Rosen. As with most Supreme Court justices, Kagan is very careful about what she says in public about her colleagues and the cases before the Court. But there are some interesting moments nonetheless, such as her discussion of the difficulties the justices experience in deciding cases dealing with new technologies they are not familiar with. Of course the most important revelation was her statement that she reads the Volokh Conspiracy “every day” (as well as some other blogs, such as SCOTUSblog and How Appealing).

UPDATE: I have revised this post to actually embed the video. […]

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Malware Infection Leads Government Agency to Destroy $170,000 Worth of Computing Hardware (And Plan to Destroy $3 Million Worth)

From the Inspector General’s report on the Economic Development Administration’s reaction to the infections (June 26, 2013) (emphasis added):

Given EDA’s history of common malware infections (the NSA identified common malware on EDA’s IT systems in its 2009 review), there was a high probability that external incident responders would find some malware infections when investigating EDA’s incident. In fact, EDA’s lack of implemented IT security and the significant number of easily exploitable vulnerabilities negated an attacker’s need to use costly attack techniques (sophisticated cyber attacks) to compromise EDA’s systems. EDA’s deficient IT security posture made it likely that external incident responders would find common malware. In the end, nothing identified on EDA’s components posed a significant risk to EDA’s operations.

However, EDA’s CIO concluded that the risk, or potential risk, of extremely persistent malware and nation-state activity (which did not exist) was great enough to necessitate the physical destruction of all of EDA’s IT components. EDA’s management agreed with this risk assessment and EDA initially destroyed more than $170,000 worth of its IT components, including desktops, printers, TVs, cameras, computer mice, and keyboards. By August 1, 2012, EDA had exhausted funds for this effort and therefore halted the destruction of its remaining IT components, valued at over $3 million. EDA intended to resume this activity once funds were available. However, the destruction of IT components was clearly unnecessary because only common malware was present on EDA’s IT systems.

Now that I think about it, maybe the more dangerous malware infection was of the government official’s mind, not of the computer hardware. Thanks to InstaPundit for the pointer. […]

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Amicus Briefs in United States v. Auernheimer

Three Four amicus briefs have been filed in support of the appellant in United States v. Auernheimer, the Computer Fraud and Abuse Act case I have blogged about (and for which I am co-counsel for the appellant). Here they are:

1. National Association of Criminal Defense Lawyers (Attorneys: Counsel from Keker & Van Nest)

2. Mozilla Foundation, Computer Scientists, Security and Privacy Experts (Attorney: Jennifer Granick)

3. Thirteen Professional Security Researchers (Attorney: Alex Muentz)

4. Digital Media Law Project (Attorney: Kit Walsh)

Also, this updated opening brief for the appellant was filed on July 2 to correct some formatting issues. (All the substance is exactly the same.)

UPDATE: My apologies that I accidentally overlooked the fourth amicus brief that was filed; I have now added it. […]

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The Right to Keep and Bear Arms and People Who Appear to Lack “Emotional Stability” at a Court Hearing

From In re Hahn (N.Y. App. Div. 2013):

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1]) to review a determination of respondent which revoked petitioner’s pistol license. [As I understand it, this is a license required to possess a handgun even at home, and not a license that allows one to carry concealed. -EV]

Petitioner’s pistol permit was suspended by respondent in October 2010 after he and another individual were involved in a scuffle that resulted in petitioner being charged with menacing in the second degree and criminal mischief in the fourth degree. The charges against petitioner were adjourned in contemplation of dismissal and, in April 2012, they were dismissed. Petitioner then sought to have his pistol permit reinstated and respondent scheduled a hearing. After hearing and observing petitioner at the hearing, respondent characterized his conduct as “bizarre and irrational” and expressed concern about his “emotional state.” Respondent thus denied reinstatement of petitioner’s permit, but noted that petitioner could reapply if he had further pertinent proof regarding his emotional and psychological condition. This proceeding ensued.

Since respondent had the advantage of observing petitioner during the hearing, we accord deference to respondent’s credibility assessments and factual findings. Here, in addition to comments expressing concern about petitioner at the close of the hearing, respondent stated in a subsequent written decision that, “[d]espite repeated warnings, cautions and directions from [respondent], [petitioner] continued to conduct himself in an overly emotional, obstreperous and acrimonious manner.” Respondent observed that petitioner exhibited “conduct bordering on impassioned rage” and concluded that he lacked the self control necessary to carry a weapon. These conclusions were based on what respondent saw in court and are not inconsistent with the record. Accordingly, we defer to those credibility determinations and factual conclusions, which provide ample


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