who not only has two of his articles cited in the Sixth Circuit e-mail privacy en banc, but who has the special privilege of having the dissent deride one of the citations:

Rather than address the facts and law cited by the panel’s opinion, the majority fails to cite one case dealing with electronic communications in the privacy context, instead relying on a single professor’s law review article.

Just goes to show how important that single professor's law review article must be.

The Dallas Morning News reports:

[At a] special meeting about Dallas County traffic tickets[,] ... [c]ounty commissioners were discussing problems with the central collections office that is used to process traffic ticket payments and handle other paperwork normally done by the JP Courts.

Commissioner Kenneth Mayfield, who is white, said it seemed that central collections "has become a black hole" because paperwork reportedly has become lost in the office.

Commissioner John Wiley Price, who is black, interrupted him with a loud "Excuse me!" He then corrected his colleague, saying the office has become a "white hole."

That prompted Judge [apparently a Justice of the Peace -EV] Thomas Jones, who is black, to demand an apology from Mayfield for his racially insensitive analogy.

Mayfield shot back that it was a figure of speech and a science term.

More from Dallas Morning News columnist Steve Blow: Though Commissioner Price says that it wasn't supposed to be a big deal, and that "it’s unfortunate that Judge Thomas escalated things by asking for an apology,"

Mr. Price isn’t backing down from his initial comment. He said a racially sensitive person seeks to avoid using “black” in its many negative forms.

Mr. Blow rightly condemns Commissioner Price's position ("this kind of hypersensitivity to language really has become counterproductive to racial progress"), but goes on to say: "As a white person, I probably can’t fathom what it’s like for the color of your own skin to be synonymous with -— to quote from the The Synonym Finder -- evil, dirty, criminal, satanic, corrupt, sinister, disgraceful, foul, ghastly." But that's not what "black" in "black hole" represents; rather, it's "black" in the sense of, well, not yielding any light.

And as to Commissioner Price's riposte, quoted by Mr. Blow -- "There are always other terms to use, Mr. Price said, even for black hole. 'He could have just said "a file 13."'" -- well, yes, he could have, if he didn't want to be understood (at least by civilians).

I should note that it's possible that, in some situations, someone may use "black hole" to deliberately insult blacks, just as in some contexts you can use any innocent term with a facial expression, intonation, or contextual cue that makes the term into an insult. But nothing in the explanation from Commissioner Price suggests that this was happening here. For something in a similar vein, see the master/slave saga, discussed here, here, and here, plus the slavishly microbrouhaha. And, of course, who could forget the objection to "big bang" being "offputting to young women" in astronomy (see CNN, June 14, 1993, also quoted online here)?

in the Netherlands. For my thoughts on the First Amendment and speech that reveals security breaches, see my Crime-Facilitating Speech (Stanford Law Review, 2005), though of course the legal analysis would apply only to U.S. lawsuits.

OK, this wasn't funeral picketing as such, and it was a bit less outrageous than Phelps' picket signs. But only a bit.

George Beals, age 19, died of a lingering and painful disease, possibly tuberculosis ("consumption"). His father arranged an obituary in a Universalist newspaper, which said,

He was a pattern for the imitation of the rising generation.--He was one who always detested the use of ardent spirits;--he never allowed himself to use vulgar or profane language, and avoided the company of those who did;--he was modest and genteel in his deportment, and gained the love and affection of all who had the pleasure of knowing him.--He never professed any particular tenet of religion, but listened to all.--His sickness was long and tedious. He had many friends who felt anxious for his future fate; and often inquired whether he was prepared for a future state.--He invariably answered them, I know of no action of my life, which causes me the least anxiety;--and God is above the Devil, what have I to fear?--He died as he lived, sensible to the last, full of faith and hope.

Two weeks later, Origen Bacheler, the owner and editor of the Anti Universalist newspaper, decided to publish a rebuttal to an obituary (I italicize the allegedly libelous portion):

VERACITY OF THE TRUMPET.

The Trumpet of the 10th inst. contains an obituary notice [describing the above notice] .... Now we are authorized to say, that this person, instead of being an example to others, and being free from the use of profanity, was actually habituated to it; that he was known to believe in Universalism; that, on his death bed, instead of saying that God was stronger than the Devil, he renounced Universalism, and gave evidence of a gracious change.

By the foregoing, the public will learn to receive the obituaries of the Trumpet with many grains of allowance....

Lovely: A young man dies, and a stranger's religious fanaticism (apparently shared by the young man's younger brother, who was the source for the rebuttal) leads the stranger to try to publicly correct the young man's obituary by accusing him of sinful conduct. As the prosecutor in the criminal libel prosecution of Bacheler put it, in flowery but sound language, "It was rarest of all that the most vile, the most malignant, the most daring, would strip off those little flowers which the hand of affection had strewed over the grave of their loved one, and scatter in their stead the rank weeds of opprobrium and disgrace."

The test for a criminal libel at the time was that a defamatory statement was libelous unless it was true, and was made with good motives and for justifiable ends. To my surprise, the jury rendered a not guilty verdict, though "requesting [the judge] to state to Mr. Bacheler that although they had brought him in not guilty, yet they did not approve the course which he had taken ..., but had acquitted him on the ground, that they did not think he had any particular malice against the deceased."

Source: Trial of the Commonwealth, Versus Origen Bacheler, for a Libel on the Character of George B. Beals, Deceased, at the Municipal Court, Boston (Boston, John H. Belcher 1829).

The Institute for Justice is challenging Philadelphia's new requirement that tour guides be licensed and take special history and geography exams. IJ seems to be exactly right on this: Such a requirement violates the First Amendment.

The government surely couldn't require that authors of history books or travel books be licensed and take exams. Nor can it require the same as to producers of travel documentary DVDs, or actors in theaters that present history/geography-related informational entertainment.

Such restrictions would be seen as unconstitutional content-based prior restraints, even if they don't purport to directly control (say, through loss of license) what is said: They bar speakers from speaking until a license is received, they are justified by the desire to prevent speech with a bad content, and they apply only to speakers who would convey a particular sort of content (history or geography in my hypotheticals).

The answer isn't any different for tours, which are likewise a form of history-/geography-related infotainment. They are speech in the quite literal sense of the word, and they are no less constitutionally protected than are books, videos, or plays.

None of this speaks to content-neutral requirements aimed at non-content-related harms, for instance requirements that theaters provide ample fire exits, or that tour operators use only licensed drivers and carry adequate liability insurance. But the Philadelphia requirements, as I mentioned, apply to speech of a particular content (tours that "provides information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest"), and they are aimed at preventing allegedly misleading content. To make things even clearer, an exemption for tour companies that educate their own guides is applicable only after a content-based judgment on the city's part -- "[i]f the Department determines that the educational program and method of evaluating tour guides is equivalent to or exceeds the written examination required by this Section" -- though even if this exemption was removed, the rest of the ordinance would still impose an unconstitutional content-based prior restraint.

Just to anticipate some rebuttals: (1) Tour guide speech doesn't fit within the "commercial speech" zone of lowered protection, because that zone basically covers only commercial advertising, not speech sold for money (or else ordinary books, newspapers, movies, plays, and the like would generally be "commercial speech" so long as customers had to pay for them). (2) Nor can such licensing and testing systems be justified by general consumer protection rationales, or by a theory that sellers of speech are engaging in misleading advertising when they promote "historical tours" that teach bad history; again, consider the analogy of books, videos, and the like. (3) Licensing and testing is of course commonplace for professional-client business relationships, including ones that chiefly consist of speech, such as lawyer-client or psychotherapist-client relationships; but the premise there is that these involve personal advice aimed at a particular person's situation, and usually in high-stakes contexts -- they surely don't apply to tour guide / patron relationships any more than to author / reader relationships. (4) Naturally, the government as employer may impose various credentialing requirements on employees who talk on its behalf, but that's not what's going on here.

If the government is really worried about tourists' being misled, and the problems not being resolved through market pressure (tours, after all, don't like online criticisms, or people telling their hotels' concierges what a bum recommendation the concierge had given), the government can easily set up an optional "Seal of Approval" system; and tours that get the Seal will surely promote it as a sign of superiority over others that don't have the Seal. But mandatory content-based licensing and examination requirements for speakers are unconstitutional, and a very bad precedent that could easily be extended to other classes of speakers as well.

Another early post-Heller case, Chaleunsak v. United States, 2008 U.S. Dist. LEXIS 50852 (M.D. Tenn. July 1), quickly disposes of a challenge to 18 U.S.C. § 924(c)(1), which provides a multi-year enhancement when someone "during and in relation to any [federal] crime of violence or [federal] drug trafficking crime" "uses or carries a firearm":

Next, Chaleunsak contends that the § 924(c) charge was unconstitutional because he had a Second Amendment right to keep and bear arms. This claim is barred by the appellate waiver contained in the plea agreement. Even if the claim is not barred, the Sixth Circuit rejected the same contention in United States v. Helton, 86 Fed.Appx. 889, 892 (6th Cir. 2004) (holding § 924(c) constitutes reasonable limitation on defendant's Second Amendment rights). Consequently, this claim will also be denied as without merit.

Helton, though, is not binding precedent even within the Sixth Circuit (that's why it's in Fed. Appx. and not F.3d). It's also pre-Heller, though at least it doesn't rely on the states'-rights/militia-rights theory that Heller rejected; here's the relevant excerpt from Helton:

Finally, Helton urges us to adopt the reasoning of the Fifth Circuit's opinion in Emerson, and to hold that § 924(c) unduly infringes on Second Amendment rights. Emerson, of course, is not binding on this court, and, in any event, we note that it contemplates that Second Amendment rights may be subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Emerson, 270 F.3d at 261. Because we agree with the district court that § 924(c) constitutes just such a reasonable limitation, Helton's Second Amendment claim must fail.

So it seems to me the district court should have done its own analysis, even a cursory one, rather than just relying on the nonprecedential and cursorily reasoned pre-Heller decision in Helton.

As it happens, though, there is a good deal of caselaw on the subject of how an individual right to bear arms should affect sentence enhancements for using or carrying a firearm in connection with a crime: It's chiefly from the Washington Supreme Court, which for the last two decades has handed down a bunch of decisions under its state constitutional right to bear arms provision. I don't endorse them all, but at least they are a substantial body of law with a decent amount of analysis. Here's the most recent one on sentence enhancements, State v. Neff, 181 P.3d 819 (Wash. 2008):

A court may add time to a sentence if a defendant was armed with a firearm while committing a crime. RCW 9.94A.533(3). A person is armed while committing a crime if he can easily access and readily use a weapon and if a nexus connects him, the weapon, and the crime. State v. Schelin, 55 P.3d 632 (2002); State v. Valdobinos, 858 P.2d 199 (1993).

This nexus requirement is critical because "[t]he right of the individual citizen to bear arms in defense of himself, or the State, shall not be impaired ...." Wash. Const. art. I, § 24. The State may not punish a citizen merely for exercising this right. The State may punish him for using a weapon in a commission of a crime, though, because a weapon can turn a nonviolent crime into a violent one, increasing the likelihood of death or injury.

When a crime is a continuing crime — like a drug manufacturing operation — a nexus obtains if the weapon was "there to be used," which requires more than just the weapon's presence at the crime scene. This potential use may be offensive or defensive and may be to facilitate the crime's commission, to escape the scene, or to protect contraband. In every case, whether a defendant is armed is a fact specific decision.

Since the issue is fact specific, the facts and holdings of our prior cases are helpful. In State v. O'Neal (2007), officers searched the defendants' methamphetamine laboratory. Besides evidence of drug manufacturing, the officers found over 20 guns, body armor, night vision goggles, and a police scanner. A jury found the defendants guilty of manufacturing drugs and added a firearm enhancement. We affirmed the firearm enhancement. Since the weapons were easily accessible to protect the drugs, and since the defendants kept a police scanner in the laboratory, the jury could find that the defendants used the guns to protect the drugs, and so we upheld their conviction.

In State v. Eckenrode (2007), the defendant called the police, alerting them to an intruder in his house. He told the dispatcher he was armed and ready to shoot the intruder. When the police arrived, he was outside his home, sitting on his porch. Police investigated and found he was growing marijuana and had two firearms in his house. A jury convicted him of drug charges and gave a firearm enhancement. We affirmed his conviction and enhancement. The defendant told the dispatcher he was armed. Police found two weapons, one loaded, and a police scanner in the house. Under those facts, a jury was allowed to infer that the defendant armed himself to protect his criminal enterprise and so was allowed to find him armed while committing the crimes.

In Valdobinos, by contrast, police arrested the defendant when he offered to sell cocaine to an undercover officer. They searched his house, finding cocaine and an unloaded rifle under his bed. A jury convicted him of drug charges and a firearm enhancement. We reversed the enhancement, holding the jury could not infer from an unloaded rifle near the cocaine that the defendant was armed. Notably, however, no evidence indicated the gun was in the house to protect the drugs, as indicated by the presence of loaded weapons and police scanners in O'Neal and Eckenrode.

Here, the trial judge found that "[i]n the defendant's garage the Sheriff's department recovered ... a loaded Smith and Wesson .357 handgun, a Colt .45, [and] a Davis model P.380 firearm." He found Neff "was armed because the guns ... where [sic] readily available for offensive or defensive purposes." On these findings, he held "[t]hat defendant was armed with a firearm while he was manufacturing methamphetamine." Based on the record, a rational fact finder could agree. When they searched Neff's garage, police found two loaded pistols in a safe, which also contained four bags of marijuana. Neff held the keys to the garage. The police found a third pistol hanging from a tool belt in the garage's rafters. While it is unclear from the record whether Neff could easily reach the gun, we construe the fact in the State's favor. Finally, the officers found two security cameras and a monitor in the garage on which to view live feeds. An officer testified that the monitors were for countersurveillance.

It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement. But in any case, the deeper point is that some of these novel Second Amendment questions aren't novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.

Our own Stuart Benjamin, and my former colleague Mitu Gulati, have a new draft article urging the creation of such a norm:

Imagine that it is fall 2008. John McCain has been 4-8 points behind Barack Obama in every poll for the last five months, except for a small post-convention bounce for McCain that soon dissipated. If McCain does not do something to change the dynamic of the presidential race, he will lose. One of his advisers suggests that he announce whom his top cabinet members will be, and whom he plans to nominate to the Supreme Court. If he can propose one or more nominees who will appeal to a key constituency, then maybe he can attract enough of those voters to help him in the general election.

There are risks to this move. Some voters whose favored candidates for cabinet and Court spots are not on the list will be dismayed. But McCain is behind in the polls and is looking to the strategy that might turn things around. If the odds are that he is going to lose, why not name names?

The presidential candidates claim that they will nominate better people than their competition will. But they are almost never pushed to name names prior to the election. When the matter of naming names comes up, candidates sidestep. Obama said, for example, that “I don’t want to tip my hand” by naming possible nominees. Instead, he explained that he wanted Justices who would “follow ... clear legal precedent” and, where the law was unclear, would consider the interests of “those who are vulnerable in our political system” and “stop giving the executive branch carte blanche” to do whatever they want. Elsewhere, he announced that he wanted Justices who would have “empathy.” In sum, he provided little more than vague generalities as to who his Justices were likely to be –- even though the implicit suggestion in his “I don’t want to tip my hand” statement is that he and his advisers already have a set of names for the Court that they are thinking about. There may be personal benefits to Obama from not tipping his hand –- he can keep a variety of his supporters working hard on his campaign in the hope of being chosen as nominees. But the benefits to society of candidates being forced to show their cards prior to the election may be greater still.

It is trite to say that the current system of presidential nominations is flawed. The question is how to make it better. For those of us who have no direct power to effectuate change, the solution has to be one that can be achieved without the need for resources, votes, lobbyists, and the like. The idea will strike many as nutty. But asking candidates to name names may yield real answers, and the process of asking and answering may produce meaningful changes.

Our hope is to induce competition between the presidential candidates over who would pick the better nominees. There are barriers to inducing this competition. But they might be surmountable when one candidate is significantly behind in the polls and is willing to take some risks. The key is to consider how pre-election choices might differ from what we would expect from that same President once elected. The implications are big. For instance, we might move from the current state in which Supreme Court nominees are almost all youngish sitting federal appeals court judges who have little in the way of a controversial publications record to a model of older and more interesting non-judges.

I think this is an intriguing idea, and I agree that it would be valuable for voters to have more specific information about the candidate's plans, rather than vague generalities. Still, I doubt such a plan would work, for several related reasons that have to do with the realities of the campaign process, and the incentives that it creates.

1. To begin with, my sense is that there'll be much more incentive with the proposed system to find something damaging about a candidate's nominees. Right now, if some group torpedoes a judicial or Cabinet nominee, what do they accomplish? They blacken the Administration's eye, they might make it a little harder for the Administration to implement other parts of the agenda, and they may get a marginally better nominee from their perspective — but not much better, since the nominee will be selected by the same President.

What's more, they know that to defeat the judicial nominee or especially a Cabinet nominee, they need something very damaging to get over the presumption that the President's selections should be approved. That's why some nominations don't even yield very serious battles. What would the Republicans have really gained from blocking Ginsburg or Breyer, especially since both were generally seen (correctly so) as moderate selections?

But if future nominations are announced before the election, there's always a strong incentive to try to find problems with the prospective nominee, because it might help decide the election: It might make the candidate look like a poor judge of character, and at the very least it will distract from the candidate's affirmative message and put him on the defensive. Think the Rev. Wright fracas, only much more so, since the "he's just my minister, and there are many things on which I strongly disagree with him" defense won't really work with someone whom the candidate selects as a nominee for high office.

So I'd imagine that for nearly every nominee, except perhaps those who are clearly peace offerings to the opposition (e.g., a moderate and well-liked Republican selected by a Democratic nominee), the other side's opposition research team — both the formal team on the other campaign and also the various uncontrollable outside advocacy groups — will go into overdrive. Anything the opposition finds might offer some chance of helping defeat the candidate, and even if it's a tiny chance, it might be politically worth airing. Plus, as the authors point out, in a close election the prospect of swinging even a few close states might be a strong incentive for the campaign to do something. Likewise, there'd be plenty of incentive to find some dirt on the candidate's announced nominees even if it only swings a few votes in West Virginia, Tennessee, and Florida.

2. Now of course all this is already done with regard to the candidate, the candidate's Vice-Presidential choice, and perhaps a few other top advisors. But here this would be done with regard to several other people, including people who the authors hope will not already be insiders. The campaign might thus not know all the dirt that might be learned about them.

And while of course nominees already have to be vetted after the election, there will be two differences here. First, there might be more need to find every little speck of potential dirt, because there'll be a lot of incentive for the other side to find it. And, second, the vetting team will be much less effective: The candidate won't have the FBI to do the work for him. He'll have to use his own staff, who might be less effective. Telling lies to his staff won't be a crime, and my sense is that many people are more reluctant to say "no comment" to the FBI than they would be to campaign staffers (especially staffers from a campaign they dislike). Of course, the FBI could be told, as I understand the Secret Service is as to protective measures, that it must do the same vetting work for the campaigns as they do for the Administration; but then there will be obvious worries about a hostile Administration learning things about the campaign through its FBI agents.

3. Relatedly, say the campaign approaches someone who does know some dirt about a nominee, but who doesn't likely the campaign — say, for instance, the Obama campaign approaches a McCain partisan to ask what he knows about a former colleague whom the campaign is considering as a nominee. The partisan might have a strong incentive to sandbag the campaign — to be unreachable when they come to him, but once the announcement is made, to leak the dirt to the media in order to do the most possible damage to the candidate. (There's some incentive to do this even with the current post-election vetting system, but there'll be more incentive to do it under a pre-election announcement system, and it may be easier for the partisans to avoid talking to — or even lie to — the campaign vetters than to the FBI.)

4. And these problems will likely be further exacerbated by another phenomenon: People like talking about personalities (by which I mean especially scandalous or controversial actions by the people, as well as pure "personality" character traits) more than about policies. That's most obvious for the important but boringly technical and detailed policies, such as health care reform or social security reform. But I think that's even true more broadly — juicy gossip about people will draw more eyeballs than discussion even of sexy issues.

Maybe that's because the sexy issue discussion is probably not new to most people; how much new is there to say about abortion or affirmative action or gun control? Or maybe it's for other psychological reasons. But my sense is that it's broadly believed that personality discussions are already a huge distraction from policy discussions, in lots of contexts, including elections. The proposal, it seems to me, will exacerbate this problem.

Now the authors are right that the question is what the discussion of the nominees' personalities will displace. If serious issues related to the nominees' personalities will displace frivolous issues related to the candidates' personalities, or fluff pieces, or some horse-race issues, then that would be fine. But my sense is that on balance there's a serious risk that any new personality issues, especially about fresh-meat personalities and not the candidates and candidates' entourage (which will already have been talked to death during the primaries), will displace policy questions.

5. Finally, these reasons suggest that the intrusion on the nominees' lives and careers will be even more serious than the paper acknowledges it would be. First, the nominees would have to realize that they'll be becoming targets for some of the most expert opposition researchers (or, according to those researchers' enemies, character assassins) in the world — and more so than happens even now, for the reasons mentioned above. Second, they'll realize that anything they will do in the coming months will be especially flyspecked for errors and controversy. Even if a judge, for instance, recuses himself from "politically sensitive" cases, that might not be enough: Every line in every opinion will be looked at to see if it could be twisted to suggest some problem (e.g., the judge's being too pro-criminal-defendant or some such).

Third, they'll realize that anything they will do in the coming months will also be scrutinized for possible political sail-trimming. Say a liberal judge writes a surprisingly pro-prosecution opinion; people will speculate that maybe he changed his vote (or at least his wording) to keep from jeopardizing the campaign that has pre-nominated him. Or imagine that your private-practice lawyer has been prenominated this way; would you trust that he's looking out for your best interest, or would you worry that he's adjusting his publicly available comments and filings to make sure that they don't create possible political problems?

True, there's some risk already when a lawyer or a judge is known to be short-listed. But the pressure on a nominee to adjust his behavior (or the possibility that he will be seen as having adjusted his behavior) would surely be higher if he knows he has been preselected than if he just thinks he has a 10% chance of being selected. I suspect this is already a risk when people are nominated after the election, and are seeing their nomination languish for months. But it seems to me the risk would be even greater here.

So concerns two and three suggest that any nominee would have to basically take a leave of absence from his job for the several months between nomination and election; maybe that's not so, but I expect that this would be the best bet all around. But concern one would still remain.

Monday, the magistrate judge in U.S. v. Dorosan, which I blogged about here, issued a further opinion, including this on the Second Amendment question (which is whether the federal government could criminalize the bringing of guns onto post office property, including leaving them in a car parked in the parking lot):

The Court has considered defense counsel's argument that Dorosan's vehicle is an extension of his home; however, that result obtains only when the vehicle is not parked on postal property where access is restricted. In this case, the restricted employee parking and loading area where Dorosan parked his vehicle during his shift bears signs that advise all who enter the gates, as follows:

Vehicles and their contents brought into, while on, or being removed from restricted nonpublic areas are subject to inspection. A prominently displayed sign shall advise in advance that vehicles and their contents are subject to inspection when entering the restricted nonpublic area, while in the confines of the area, or when leaving the area. Persons entering these areas who object and refuse to consent to the inspection of the vehicle, its contents, or both, may be denied entry; after entering the area without objection, consent shall be implied. A full search of a person and any vehicle driven or occupied by the person may accompany an arrest.

An area, such as the Gretna Post Office's employee parking lot, which bears warnings the likes of that aforestated can hardly be analogized to "home sweet home" or an extension of same. By the same token, privately owned vehicles parked on such "postal property" cannot be reasonably be considered an extension of home. The "postal property" at issue more closely approximates one of those "sensitive places" excepted by the Supreme Court in Heller, the Court's latest opinion addressing the Second Amendment "right to bear arms." Certainly a loaded semi-automatic weapon, even if secured in the locked glove compartment of a privately owned vehicle, creates an opportunity for violence on such "postal property" -- i.e., a "sensitive" area where access is restricted for reasons of facilitating the movement of inbound and outbound mail entrusted to the USPS.

[Footnote, moved: In Heller, the Supreme Court cautioned that "nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places ...." District of Columbia v. Heller (holding that the Second Amendment of the Constitution of the United States secures the fundamental right of all Americans to bear arms).]

Eradicating the potential for deadly workplace violence and ensuring the safety of both Government employees and the public on "postal property" is exactly the security measure that the regulation at issue was designed to effect. The regulation is an adjunct of the Postal Service's policies and more particularly the "zero tolerance" of workplace violence. Indeed, many of those who use postal facilities, including postal workers, do so from necessity, not choice; many members of the public must go to a post office to conduct their business and personal correspondence, carrying cash for stamps or money orders. Postal employees must enter and exit the postal property at issue carrying the U.S. mail.

As previously addressed in this Court's prior opinion, the postal regulation at issue (39 C.F.R. § 232.1(l)) passes Second Amendment constitutional muster and is reasonable as applied to Dorosan. The Government has a significant interest in protecting the integrity of the purposes to which it has dedicated the property (facilitating postal transactions) and ensuring the security of postal employees and the public who must: (1) visit postal property to conduct official and personal business; (2) wait single file in roped off lines inside of postal facilities; (3) idle in vehicles single file in "snorkel lanes" 21 on postal property to use "drive and drop" mail receptacles placed outside of the Post Office building; and (4) carry cash or other legal tender for stamps, money orders, passports and other goods and services provided by the United States Postal Service.

Noting the fact that there were no signs prominently displayed outside of the Gretna Post Office building publishing the regulation's prohibition against carrying firearms (§ 232.1(l)) or animals (§ 232.1(j)) on "postal property," the defendant argued that the statute was vague, overly broad and unconstitutional as applied to the defendant. More particularly, defense counsel suggested that the regulation effectively outlaws conduct including matriculating the drop box lane in a vehicle with either a firearm or an animal safely stowed within its confines. The undersigned Magistrate Judge expresses no opinion whatsoever as to the constitutionality of regulation's ban on carrying firearms or animals in public areas without official purpose -- i.e., operating a vehicle through the "snorkel lane" of the Gretna Post Office while accompanied by a pet Shih Tzu, other non-seeing eye dog or, perhaps, armed with a loaded handgun stowed in the glove compartment. Neither of those issues are before the Court in this case, which involves the prohibited conduct of carrying and storing firearms without official purpose in the gated/restricted access employee parking, loading and unloading area of the subject "postal property."

Prof. Carl Bogus passed along this response to Jim's earlier post criticizing Prof. Bogus, and updated it in light of Jim's further post this morning:

On June 26, 2008, James Lindgren attacked me personally on this website. His attack had two prongs.

First, he said I revealed myself to be “at best uniformed” because I cited a peer-reviewed study, namely, Colin Loftin, Ph.D., et al., “Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia,” 325 New Eng. J. Med. 1615 (1991). Lindgren said that study “should not be taken seriously.” He wrote: “A simple Google search would have revealed why. According to Dean Payne’s re-analysis, if you use Loftin’s homicide and suicide data, adjust for population changes (as you must), and use per capita rates (as you must), the DC ban is associated with more deaths after the ban, not fewer.” Lindgren provided a link to this critique, which did not identify Dean Payne or even make clear whether “Dean” is a first name or title. As far as I know, Payne’s critique was never published by anyone other than himself. Lindgren added: “That the New England Journal of Medicine would publish a time-series article that did not account for population changes over roughly a two-decade period is embarrassing, but then peer review seems to suffer when gun control articles are involved.”

In fact, Loftin and this team did two analyses, one using per capita rates. The original study states: “As a check against possible effects of changes in the population, we conducted a similar analysis using annual mortality rates. …[T]here was an abrupt decline in both suicides and homicides by firearms that coincided with the implementation of the restrictive licensing law. The reductions were specific to fatalities involving guns in the District of Columbia. No similar reduction was observed in homicides and suicides committed without guns, nor were there reductions in the adjacent areas of Maryland and Virginia, where the provisions of the law were not in effect.... [T]he analysis of mortality rates indicates that the declines in homicides and suicides by firearms were not due to changes in characteristics of the resident population. The population estimates are, of course, subject to error, and complex changes in high-risk groups are also possible. Nevertheless, the population at risk was the same for both gun-related and non-gun related mortality. Therefore, the differences between the rate of mortality by firearms and that of mortality due to other causes cannot be attributed to a failure to study the appropriate population.” Id. at 1616, 1618, and 1619.

Some researchers have raised other questions about whether the Loftin study should have been designed differently, and Loftin and his team have defended their methodological choices. The bottom-line is that many knowledgeable researches consider the Loftin study valuable and continue to cite it.

Here is the second prong of Lindgren’s attack: “I must confess that, unfortunately, this isn’t the first time that Carl Bogus has had trouble with inconvenient evidence. I remember during the dispute over Arming America that Bogus was writing a review and sought my permission to cite one of my unpublished drafts. Before I called him, I confirmed that his own university library’s special collection had a copy of the published Providence Probate records that Michael Bellesiles had used – and grossly misrepresented in Arming America. I called Bogus, gave him the name and number of the reference librarian I spoke with, and tried to get Bogus to spend an hour in his own university’s library confirming that there were major problems with Bellesiles’s account before Bogus finalized his review. Bogus refused even to look at the contrary evidence I urged him to examine, a decision that in part led him to seriously misjudge the work he was reviewing.” The book review I wrote stated: “A potentially damaging attack on Bellesiles probate data has been launched by James Lindgren and Justin Lee Heather. Lindgen and Heather argue, first, that probate records may not be a reliable reflection of how many people owned guns, and second, that Bellesiles has underrepresented the number of guns in the probate records. As of this writing, the Lindgren-Heather paper has not been published and Bellesiles has not responded in writing.” I provided a web address where Lindgren and Heather’s study could be obtained, and added: “Though they restrict their analysis to probate data, their criticisms about Bellesiles’s methodology are sufficiently serious to have potentially broader implications. A rush to judgment at this stage, however, would be unwise and unfair.” Carl T. Bogus, “Shootout,” 79 Texas L. Rev. 1641, 1652 (2001).

My apologies for the delay posting the original version of Prof. Bogus's message, which he sent July 3; there was a bit of a miscommunication here on our end.

Here's U.S. v. Lewis, from the District of the Virgin Islands:

Malik Ostalaza ... and his co-defendant, Ronald Lewis, Jr., were charged in May, 2008 in a five-count indictment. Count One charges Ostalaza with possession of a firearm with an obliterated serial number, in violation of Title 18, Section 922(k) of the United States Code (“Section 922”). Counts Four and Five charge Ostalaza with unauthorized possession of a firearm, in violation of Title 14, Section 2253(a) of the Virgin Islands Code [which essentially appears to be a ban on possessing a firearm without a license -EV]. Ostalaza is not charged in Counts Two and Three.

Ostalaza now argues that Counts One, Four and Five should be dismissed because they violate the Second Amendment of the Constitution. In his motion, Ostalaza neglects to substantiate that argument with citations to any authority. Instead, Ostalaza points to District of Columbia v. Heller, a case that was pending before the Supreme Court at the time his motion was filed. Ostalaza states only that he “reserves the right to challenge” the indictment on Second Amendment grounds.

In United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997), the Court of Appeals for the Third Circuit explained that “the Second Amendment furnishes no absolute right to firearms.” Relying on its decision in Rybar, in United States v. Willaman, 437 F.3d 354, 356-57 (3d Cir. 2006), cert. denied, 547 U.S. 1208 (2006), the Third Circuit rejected the defendant’s contention that Section 922 violates the Second Amendment. In reference to the defendant’s argument that Rybar “is simply bad law,” the Willaman Court stated that “plainly [Rybar] is binding on this panel.”

[Footnote: Moreover, while the Supreme Court acknowledged in Heller the right of the individual to possess a firearm unconnected with service in a militia, the Court also held that that right is not unfettered. See 2008 U.S. LEXIS 5268, at *95 n.26 (identifying “presumptively lawful regulatory measures” and noting that the Court’s list of those measures “does not purport to be exhaustive”).]

It may well be that the defendant didn't provide enough argument to support his motion to dismiss. I'm also pretty sure that the courts will find that the right to keep and bear arms isn't substantially burdened by the ban on knowingly possessing a firearm with an obliterated serial number; and they may well uphold the Virgin Islands license requirement, or conclude that only someone who has tried to get a licensed but been denied one is entitled to challenge the requirement.

But the court's reliance on precedent strikes me as quite weak: Rybar was decided by the Third Circuit on the theory that the Second Amendment only protects gun possession when it has a "connection with militia-related activity." Heller rejects that theory, which means that Rybar and Willaman are no longer good law.

Certainly in the Third Circuit (and to my knowledge in all other circuits) "a subsequent panel may depart frm a previous panel's decision if required to do so by an intervening Supreme Court decision," Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 2008 WL 2420729 (3rd Cir. June 17) (paraphrasing earlier precedent). I take it that district courts can and should do the same: "[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,] ... a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

So I don't think the district court was entitled to punt the matter to the pre-Heller collective-rights precedent. It needed to do the Heller analysis (or, if appropriate, decline to deal with the Second Amendment question, if the litigant hadn't adequately argued it). And simply saying that under Heller the "right is not unfettered" isn't an adequate justification for the court's decision, either: Obviously some fetters are permissible but others aren't, so the question is why these particular gun controls are justified given the Heller reasoning.

UPDATE: I should note that, technically speaking, the Second Amendment might not apply to the Virgin Islands of its own force: The Insular Cases from the early 1900s held that only some constitutional rights apply to such territories, and the jury rights (grand jury, criminal jury, and civil jury) and the Second Amendment have often been seen as not being included. Nonetheless, Congress has expressly applied "the first to ninth amendments inclusive," except the Grand Jury Clause, to the Virgin Islands.

For an analysis similar to what I quoted below -- down to the analogy between the limits on the right to bear arms and the limits on the freedom of the press, see the argument of Ichabod Bartlett (a leading New Hampshire lawyer, Congressman, and speaker of the New Hampshire House of Representative) in Upham v. Hill (1830):

What is liberty of person? — liberty of speech? Are we not free? But have we a right to knock down and trample upon all whom we may dislike? ... We have too the right of bearing arms. And if we are not permitted to throw a brand into our neighbor's dwelling — or discharge our rifle upon the passers by in the street — we could as well complain of being enslaved — as to say the press is shackled, because it may not, by falsehood, assault the character of any and every citizen, when and where its conductors may choose.

This clearly assumes the right to bear arms as an individual right to possess or carry a gun (it's not clear which). This is weaker evidence than the views of Judge Martin, because it's only a lawyer's argument to a jury. But a skilled lawyer such as Bartlett would make such an argument (especially given the easy availability of other analogies) only if he thought the right to bear arms would be uncontroversially seen as an individual right by the jurors.

Note also that this had to be a reference to the Second Amendment or to some national consensus about the right to bear arms, and not to a state constitutional provision: New Hampshire had no right to bear arms provision in its state constitution until 1982.

From H.P. Nugent, An Account of the Proceedings had in the Superior Court of the Territory of Orleans, against Thierry & Nugent for Libels and Contempt of Court 43-44 (Philadelphia 1810), relating statements by Judge François Xavier Martin, then a territorial judge and eventually a Chief Justice of the Louisiana Supreme Court:

It is true, said he [Judge Martin], the constitution secures the liberty of the press, but it likewise secures the liberty of keeping arms; now, as the liberty of keeping arms is not the liberty of killing or maiming whom we please, so is not the liberty of the press, the liberty of publishing libels....

It was for the second time during the trial, that judge Martin compared the liberty of the press to the right of keeping arms, and argued that as one was not the liberty of killing or maiming, neither was the other that of publishing libels.

The Louisiana Supreme Court went on in the 1850s -- after Judge Martin was dead -- to likewise characterize the Second Amendment as an individual right, but it looks like this view was taken by a leading Louisiana judge as early as 1810. The reference is in passing, but it just reflects, it seems to me, the uncontroversial nature of the assertion at the time; and though it's second-hand (Judge Martin's words are paraphrased, not quoted), the tangential nature of the assertion adds credibility to it, since the author had little reason to misreport it.

I haven't seen this mentioned anywhere else, so I thought I'd post it. If any of you know of a source that talks about it, please let me know so I can give it proper credit. I know of no relationship between H.P. Nugent and Ted Nugent.

E.P. Thompson's chapter on "Rough Music" in Customs in Common (1991), reports on this incident:

The Reverend Charles Jeffrys Cottrell, JP, the Rector of Hadley in Middlesex, was driven in 1800 to take legal action when he received in the post a portrait of a gibbeted parson with his genitals exposed, inscribed "O what a miserable Shitting Stinking Dogmatick Prig of an April fool I do appear."

This stemmed from a tax dispute, of course.

at BloggingHeads. Here's my main disagreement with Jack: Unless I'm mistaken, Jack thinks that (1) the Second Amendment secures a right only to members of the militia, not to the people as a whole, and (2) the "militia" doesn't mean pretty much all law-abiding adults (or white male adults, in 1789, though the Fourteenth Amendment surely changed that) at least until age 45, but is rather left entirely for Congress to define. The militia, Jack seems to be arguing, "was what [the Framers] meant to allow future Congresses, in their wisdom, to replace."

Yet this means that the Second Amendment secures a right against Congress -- but secures it only to those people whom Congress chooses to empower this way. That, in my view, is a mighty odd reading of the Second Amendment, which basically lets it be nullified by the very body that it was created to constrain.

And unless I'm mistaken, Jack basically acknowledged that the Amendment was indeed this empty. I think his view is that it's a remnant of an earlier, pre-1789 view of rights as hortatory provisions, a view that made its way into the Bill of Rights in the Second Amendment but not in the First Amendment, the Fourth Amendment, and the like. In any case, watch our discussion and see what you think.

An odd-sounding phrase I saw in a late 1700s American polemic, Columbian Centinel, June 18, 1791:

We are told, that the copy from which an edition of this work [Paine's Common Sense] was reprinted at Philadelphia, was furnished by the Secretary of State [Jefferson], and was accompanied by a letter, from which the following extract has been published in most of our newspapers. "I am extremely pleased to find that it is to be re-printed here, and that something is at length to be publicly said, against the political heresies which have sprung up among us. I have no doubt our citizens will rally a second time round the standard of Common Sense."

I confess, Sir, I am somewhat at a loss to determine, what this very respectable gentleman means by political heresies. Does he consider this pamphlet of Mr. Paine's as the canonical book of political scripture? As containing the true doctrine of popular infallibility, from which it would be heretical to depart in one single point? The expressions, indeed, imply more; they seem, like the Arabian prophet, to call upon all true believers in the Islam of democracy, to draw their swords, and, in the fervour of their devotion, to compel all their countrymen to cry out, "There is but one Goddess of Liberty, and Common Sense is her prophet."

The author was Publicola, which is generally thought to be a pseudonym for John Quincy Adams (see, e.g., N.H. Gazette, Sept. 10, 1827), then just shy of his 24th birthday. Also, according to Robert J. Allison's The Crescent Obscured: The United States and the Muslim World 40 (2000), the "heretic Jefferson had in mind" was Jefferson's rival and John Q. Adams' father, John Adams.

which I hadn't seen before; it's from Robinson & Warren v. State, 38 Ark. 641 (1882) (Eakin, J., dissenting). The judge is objecting to a majority decision upholding a statute under which owners of stores that sell liquor are held strictly liable for illegal sales by their partners or employees. Here's the passage (paragraph breaks added); the key rhetoric is in the last paragraph:

There is no telling how far reaching the range of the decision, just rendered, may be. The case in judgment is very trifling. But the decision is not confined to dram-shops and their owners. Its immediate effect will be to include every wholesale dealer in the State, who sells by clerk, or by agents in other towns, and those who have interests or shares in the business, whether widows or not, and make each or any, and all of them liable to be dragged before the criminal tribunals and punished, if the lowest sub-agent or employee anywhere, even the porter who sweeps the stores, should some day sell liquor to a minor.

If the mere interest in the liquor sold, fixes the liability, where is the line to be drawn? Why may not a lady, retaining an interest in a deceased husband's drug store, find it necessary to follow her Sunday devotions, by an appearance next day in the criminal court, to be punished for a crime committed whilst she was at prayer, by a good-natured clerk who sold a drink to a boy companion? Will she be told she ought not to be in that business?

The ulterior effects of the decision in unsettling old well-defined safe-guards of liberty, cannot be calculated. Bad precedents are like arrows shot from a bow. They cannot be controlled after they have left the string. Their logical sequence often runs terribly away to consequences never dreamed of. Better stand on the old foundations, and walk in the old ways. I distrust the social advantages promoted by decisions of this nature. Timeo Danaos, et dona ferentes. [I fear the Greeks even if they bring gifts.] They have the fair semblance of hand maidens of morality. They may be wooden horses, unwittingly drawn within the citadel of the Bill of Rights. I think they are.

Johnson v. United States (E.D. Mo. July 2, 2008), summarily rejects a felon's Second Amendment challenge to the federal ban on felons' possessing firearms:

Moreover, on June 26, 2008, the Supreme Court completely foreclosed Movant's Second Amendment ... constitutional challenge to this statute:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Johnson, who was representing himself, had felony convictions from the mid-1990s for assault with a deadly weapon, theft, and escape from custody. The pistol that he possessed in 2005, when he was arrested for being a felon in possession of a firearm, had been stolen. Because of Johnson's criminal history, which also included "a series of traffic and drug-related misdemeanors, and an additional misdemeanor resisting arrest," he was sentenced to eight years in prison.

I was hoping I might ask our readers for some research help here -- I am looking for (1) authors, columnists, academics, politicians, or especially prominent bloggers, who (2) argue that the First Amendment protects only "speech" and "press" and therefore doesn't protect any symbolic expression, and (3) argue this outside the specific contexts of U.S. flag desecration or nude dancing.

I already have examples (including Judge Robert Bork and Senators Orrin Hatch and Dianne Feinstein) as to flagburning, and can find plenty for nude dancing. I'm looking for (A) people who make this argument as to other forms of symbolic expression, such as wearing armbands, flying other flags, and the like, or (B) people who make this argument broadly, without reference to flagburning as such.

I'm also not looking for disputes as to whether a particular form of conduct (e.g., wearing one's hair a particular way, or refusing to let military recruiters onto one's campus) is sufficiently symbolic to qualify for protection. Rather, I'm looking for arguments that sound like categorical assertions that the First Amendment protects only what is literally "speech" or "press" -- or, perhaps more broadly, that the First Amendment protects only expression in words -- and that it doesn't protect other symbolic expression. Many thanks!

The brief decision from Senior Judge Milton Shadur is in the newly filed lawsuit challenging Chicago's handgun ban, McDonald v. City of Chicago (N.D. Ill.); it's minor, but I thought I'd note it nonetheless, because it might foreshadow what we might see in the future in this important case:

This newly-filed action has been assigned to this Court’s calendar. From a reading of the Complaint it appears that plaintiffs’ counsel may view this litigation--which is entitled to serious consideration on its own merit--as a vehicle for some other purposes as well. This memorandum order is issued sua sponte to strip the Complaint of some surplusage--listed in the order of appearance, rather than in any effort to rank the stricken allegations in terms of importance--that does not conform to the directive of Fed. R. Civ. P. 8(a) as to the content of a federal complaint.

1. Because yesterday’s Supreme Court decision in District of Columbia v. Heller, No. 07-290, 554 U.S. __, 2008 WL 2520816 (U.S. June 26) requires no independent justification for the ownership and possession of firearms under the Second Amendment (see Complaint ¶34), all but the first sentence of each of Complaint PP1 through 4 are stricken.

[Footnote, slightly moved: Nothing in the Supreme Court's opinion addresses the registration and licensing requirements targeted by the Complaint (see Heller, 2008 U.S. LEXIS 5268, [WL] at *28 n.26 and *30), and no view is of course expressed here as to such substantive issues.]

2. Complaint ¶8 appears to reflect an inaccurate characterization of the form of government that is prescribed for the City of Chicago. Absent some showing to the contrary by plaintiffs’ counsel, that paragraph will be stricken, Richard Daley will be dismissed as a defendant and all of the Complaint’s references to “Defendants” will be converted to singular form.

3. Because 28 U.S.C. §§2201 and 2202 are not independent sources of federal subject matter jurisdiction, reference to those sections is stricken from Complaint ¶9.

4. Complaint ¶¶40 through 45 are stricken as patently inappropriate.

5. All of the Complaint’s references to “Cause of Action” are also stricken. In that respect, see NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992)).

Here are the relevant portions of the complaint:

1. Plaintiff Otis McDonald is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. McDonald resides in a high-crime neighborhood and is active in community affairs. As a consequence of trying to make his neighborhood a better place to live, Mr. McDonald has been threatened by drug dealers.

2. Plaintiff Adam Orlov is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Orlov is a former Evanston, Illinois, police officer. As a police officer, Mr. Orlov was entrusted with a handgun for the purpose of defending himself and others from violent crime.

3. Plaintiff Colleen Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Ms. Lawson’s home has been targeted by burglars.

4. Plaintiff David Lawson is a natural person and a citizen of the United States, residing in Chicago, Illinois. Mr. Lawson’s home has been targeted by burglars....

40. Many Chicago gun owners fail to re-register their firearms every year. Among these recently was Alderman Richard Mell, whose firearms became unregisterable when he failed to timely renew his registration certificates.

41. Accordingly, Alderman Mell proposed an ordinance amending the law to permit, for one month, lapsed guns to be re-registered if their owners had attempted to re-register their guns between May 1, 2007 and April 1, 2008, a period that would have covered his lapsed firearm registrations.

42. Defendant Mayor Daley endorsed Mell’s proposal, stating: “A lot of people go back and forth to their summer homes ... A lot of people move their shotguns. A lot of ’em are bird hunters, gun collectors.... They move ’em back from Wisconsin, Michigan, [other] parts of Illinois.”

43. Defendant Mayor Daley added: “It’s one time [for] one month ... You want to have ’em register. There’s nothing wrong with that ... People want to just register. A lot of ’em bring ’em back from hunting trips. So, why not?”

44. Speaking of Alderman Mell’s desire to re-register his lapsed guns, Defendant Mayor Daley stated: “He has a home in Wisconsin. He brings ’em back and forth. He’s not running out with a shotgun and hurting people.

45. The proposed re-registration amnesty bill was passed by the Chicago City Council, with the amnesty period extended to 120 days. The fee for re-registering a lapsed firearm under the amnesty bill is $60.00.”

My questions: (1) The main issue in this case is to what extent the Second Amendment applies to the states via the Fourteenth Amendment. It's at least conceivable that the Amendment might apply to the states differently than it does to the federal government; this is an unlikely result, but one the Court reached in the early 1970s as to the Jury Trial Clause, which has been read as requiring unanimous juries in federal prosecutions but not state prosecutions. If this is so, then is it clear that the remaining sentences of paragraphs 1 through 4 are surplusage? Or is the judge simply assuming that the Second Amendment is either fully incorporated or not at all incorporated, so that Heller view -- which is that the right to keep and bear arms doesn't require any special justification on the claimant's part -- is dispositive?

(2) Why doesn't the material related to the reregistration ordinance potentially undermine the strength of the government's likely argument that the ordinance's constraints on law-abiding citizens are really needed to fight crime (quite independently of the digs at the supposed self-dealing by Chicago officials)? True, it might prove to be irrelevant, but that's not clear now. Or is it just that the proper place for introducing such matters is at trial and in pretrial motions, rather than in the complaint?

It's U.S. v. Dorosan (E.D. La.), in which defendant -- a postal worker -- was found guilty last week of possessing firearm on postal property. The postal worker had a gun in the glove compartment of his car, which was parked in the Post Office lot; but this was found because a postal inspector, Norbert Lewis, "discovered a black canvas bag on the workroom floor next to a letter case for Route 5301. Said route was worked by the defendant ... on the previous day. Lewis did not know to whom the bag belonged so he opened the bag and found a magazine with twelve (12) rounds or .40 caliber hand gun ammunition and three (3) empty shell casings in the bag."

The magistrate judge's opinion rejecting Dorosan's Second Amendment challenge was filed last Monday; the discussion is fairly long, but I thought I'd offer a few excerpts:

Both Heller and Emerson [the 2001 Fifth Circuit case that anticipated the Heller individual rights ruling] ... make it clear that the “right to bear arms” –- albeit an individual fundamental right of all Americans secured by the Second Amendment –- is not unlimited....

The Property Clause of the United States Constitution grants Congress the right to regulate federal property. It provides: “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the territory or other Property belonging to the United States....” The Fifth Circuit has routinely upheld federal regulations that are designed to promote workplace and public safety on government property....

Clearly, 39 C.F.R. § 232.1(1)[,] which bans possession of weapons solely on postal property is not unconstitutional as applied. Neither Heller nor Emerson involved gun control regulations banning possession of “arms” on federal property. Indeed, the Supreme Court in Heller described the District’s statute as a law that “totally bans handgun possession” extends to the home and “requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

The regulation at issue in this case is far more limited in application in that it (1) applies only on the confines of properly noticed postal property, (2) is sanctioned by both the Property and Postal Clauses of the U.S. Constitution and (3) falls within the Heller Court’s category and non-exhaustive list of excepted longstanding prohibitions on carrying firearms –- i.e., “sensitive places such as schools and government buildings.”

Indeed, federal law (OSHA) requires employers to abate workplace hazards and encourages employers to take measures to prevent gun-related injuries. Surely, the United States Postal Service would be remiss if it failed to practice what federal law requires. Without question, § 232.1(1) bolsters the United States Postal Service’s zero tolerance for workplace violence and is a regulation designed to maintain safety and order on postal property. 18 U.S.C. § 930 (a), which prohibits possession of dangerous weapons, serves the same purpose within federal facilities. Congress has the authority to regulate safety of the post office and its property, notwithstanding the individual right to bear arms in the home, “where the need for defense of self, family and property is most acute.”

The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas. Its reach does not extend beyond the noticed, gated confines of United States Postal Services’ property. It is narrowly tailored to effect public and workplace safety solely on postal property consistent with the Property and Postal Clauses. Similarly, 18 U.S.C. § 930(a) criminalizes knowing possession of dangerous weapons, but only within the confines of a federal facility/building. Regulations forbidding the possession or carrying of firearms “in sensitive places” such as federal and/or postal property abound; these longstanding prohibitions have been upheld.

I think the invocation of an enumerated Congressional power as a counterweight to an individual right -- what I call the Constitutional Tension Method -- is a mistake. All things that Congress does must theoretically be pursuant to some enumerated power. The D.C. gun ban was enacted, indirectly, through the enumerated power to legislate for the District of Columbia (though Congress exercised that power by letting the D.C. City Council enact ordinances, subject to the possibility of Congressional repeal). The point of the Bill of Rights, whether we're talking about the First Amendment or the Second or the Fourth or any other, was to constrain Congress in the exercise of its powers. (I wrote about this in the First Amendment context in this article.)

I also think the argument based on federal health and safety law is at the very least too cursory, and likely unsound. The USPS "would be remiss if it failed to practice what federal law requires," but federal law doesn't require gun bans by employers, and even if it did there would still be the question of whether such a requirement is constitutional under the Second Amendment. The court just seems to be assuming that the federal law is constitutional, without explaining why this is so.

Nonetheless, the other arguments may well be correct, especially given the language in Heller; I can't speak with complete confidence about the subject. I just wanted to flag my disagreement with the reliance on the enumerated power and on OSHA.

Note: While I was at first skeptical about the claim that "The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas," I take it that the court is assuming (quite likely correctly) that Dorosan could have parked the car on a public street outside the post office.

Mullenix v. BATF (E.D.N.C. July 2, 2008):

Plaintiff is a federally-licensed firearms dealer, and alleges that the ATF arbitrarily denied him permission to import a reproduction of a World War II-era German machinegun[, the BD44]....

Title 18, section 925(d) of the United States Code provides that certain types of firearms may be imported into the United States. Among these are firearms “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” ... [T]he ATF determined that the BD44 was not importable under section 925(d)(3) because it was not “generally recognized as particularly suitable for or readily adaptable to sporting purposes.” Plaintiff challenges the ATF's decision. Plaintiff argues that the ATF's interpretation of section 925(d)(3) is arbitrary and capricious, and seeks damages for lost income resulting from his inability to sell BD44s to prospective military re-enactors....

Plaintiff first argues that “[a]ll bans [on gun ownership] are clear unconstitutional infringements to the right to own and bear arms.... [In Heller,] the Supreme Court rejected the notion that the Second Amendment right is unlimited:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right [to keep and bear arms] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

In light of Heller, plaintiff's facial challenge to section 925(d) fails.

Alternatively, plaintiff contends that, although Congress has the power to regulate the individual right to keep and bear arms, “regulation” of that right is limited to reasonable time, place, and manner restrictions. According to plaintiff, Congress may not “regulate” his individual right to keep and bear arms by declaring that he may not own certain types of arms, and he may accordingly own almost any type of weapon he chooses (including the BD44) so long as he complies with reasonable time, place, and manner restrictions. See [plaintiff's brief] at 7-8 (“[N]ever does Congress have the right ... to ban the ownership of any defensive arm equivalent or superior to that used by the standing armies of the United States.”).

Unfortunately for plaintiff, the Supreme Court rejected this argument in Heller. See Heller at *26 (construing United States v. Miller, 307 U.S. 174 (1939), to hold that “the type of weapon at issue [a sawed-off shotgun] was not eligible for Second Amendment protection”); id. (“Miller stands ... for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”); id. at *27 (finding it a “startling reading” of Miller to suggest “that the National Firearms Act's restrictions on machineguns ... might be unconstitutional”); id. at *28 (“[T]he right [is] not a right to keep and carry any weapon whatsoever....”). Accordingly, in light of Heller, the court rejects plaintiff's challenge to section 925(d), and rejects plaintiff's claim that the Second Amendment entitles him to possess the BD44 in this case.

Not a surprising result, or likely an important one, but it is one of the first, so I thought I'd note it.

UPDATE: When I posted this, I labeled this the "first" post-Heller Second Amendment opinion -- forgetting that Lexis sometimes has unpublished cases that Westlaw doesn't, and neglecting (for no good reason) the fact that some unpublished cases never make their way to Lexis or Westlaw and a few others take some time to get posted. I've revised the title accordingly, and will blog shortly on at least one earlier post-Heller Second Amendment case. Thanks to commenter ClosetLibertarian for reminding me about this.

Just noticed this today:

See here for more details. Proof positive, it seems to me. Of everything.

UPDATE: After I linked to the Wikipedia entry, someone deleted the section I was linking to; fortunately, commenter Anderson posted a link to the old version of the entry, and I've revised this post to link to that. That sort of thing is one of the problems with linking to Wikipedia, though it's not that serious a problem when it comes to topics such as this.