"1. A deputy sheriff may require individuals entering the courthouse to remove masks, veils, or other face coverings at the security checkpoint, without regard to whether the individual claims a religious basis for remaining masked or veiled, if the sheriff’s office has a neutral and generally applicable policy of requiring removal of face coverings for security purposes.

"2. To minimize potential conflicts between the requirements of courthouse security and the religious practices of individuals entering the courthouse, it would be useful [but not legally mandated] if security details were comprised of both male and female officers and if a private space were available at the entrance of the courthouse for those individuals whose religion discourages removal of a head covering in public."

So opines the Maryland Attorney General. Maryland has no mandated religious exemption regime, so this is clearly right.

About half the states do have such a regime, either under the state constitution's religious freedom cause (as interpreted by state courts) or under a state Religious Freedom Restoration Act; and so does the federal government, as applied to federal action. The Maryland AG says, though, that even under such regimes no exemption from a policy of "temporary removal ... of a head covering," because the policy likely "would survive strict scrutiny [mandated under such exemption regimes] as a narrowly tailored effort to further a compelling interest in courthouse security."

The AG doesn't discuss whether considering sex in assigning guards to the checkpoint (or perhaps even in hiring guards, if not enough female guards are available), or in assigning guard duties at the checkpoint, would violate Title VII of the Civil Rights Act of 1964 or any similar Maryland law. As I discussed in this article, the "bona fide occupational qualification" exception to bans on sex discrimination in employment would generally justify some sex classifications aimed at protecting privacy. I know of no caselaw on whether this would cover accommodating privacy concerns that go beyond normal social privacy norms -- please let me know if you can point me to some such caselaw -- though I'm inclined to conjecture that it probably would.

I'm delighted to report that John Elwood will be joining us as a coblogger. John is a D.C. appellate lawyer, a former clerk for Justice Kennedy, and (for the last seven years) an Assistant to the Solicitor General and the senior Deputy at the Justice Department's Office of Legal Counsel. The cognoscenti also know him the one-time (until June 2001) author of the hilarious but also substantively informative Baker & Botts Supreme Court Reports. I've known John for years, and always much admired his work.

Ed Whelan (National Review's Bench Memos) writes:

In a May 2006 speech, Judge Sotomayor tells “a joke that [she thinks] aptly describes the difference between supreme court, circuit court, and district court judging”:

It involves three judges who go duck hunting. A duck flies overhead and the supreme court justice, before he picks up his shotgun, ponders about the policy implications of shooting the duck — how will the environment be affected, how will the duck hunting business be affected if he doesn’t shoot the duck, well by the time he finishes, the duck got away.

Another duck flies overhead, and the circuit judge goes through his five part test before pulling the trigger — 1) he lifts the shotgun to his shoulder, 3) [sic] he sights the duck, 3) he measures the velocity of the duck’s flight, 4) he aims, and 5) he shoots—and, he misses.

Finally, another duck flies by, the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and decides that he will let the other two judges explain what he did over dinner.

So Sotomayor thinks an unobjectionable and apt description of the role of Supreme Court justices in making decisions involves “ponder[ing] about ... policy implications.”

(The excerpt above is from the prepared text on pages 10-12 of the speech (emphasis added). Sotomayor handwrote some trivial changes.)

The trouble with this criticism, it seems to me — even if you take the joke seriously on this point — is that of course Supreme Court Justices routinely, and entirely properly, consider "policy implications" in the sense of consequences. Let me just offer a few examples:

1. In some cases, the Supreme Court acts as a common-law-making court, or something very close to it, and there is (and should be) very little controversy about this. Admiralty law is one example. The defenses to federal criminal charges are another. (Federal crimes are legislatively defined, but the defenses are not.) The law of many federal remedies is in some measure another — consider the preliminary injunction standard, which calls for considering the consequences of granting or denying the injunction, or consider the qualified immunity caselaw, which has largely been developed with an eye towards the consequences of providing more or less liability.

This is so even when there are statutes, but the statutes are either deliberately vague or specifically delegate authority to federal courts. Antitrust law, where the Court has for over a century interpreted the categorical ban on restraints of trade as an authorization to develop a law of which restraints are permissible and which aren't, is another noted example. The fields of evidentiary privileges and copyright fair use, where the Congress expressly left the federal courts the task of developing the law further, offer more examples. In all these areas, the job of the federal courts, and in particular the Supreme Court, is to develop legal rules that they see as sensible "in the light of reason and experience," and looking at consequences ("the policy implications") is an important part of that.

Recall that most of American law (including property, tort, contract, evidence, and criminal law) was developed by the common-law courts. It has been in considerable measure codified by legislatures, but common-law courts continue to develop it. The scope of common law and common-law-like development by federal courts is narrower, but there are still considerable chunks in which it persists.

2. But I take it that Whelan is particularly considered about the interpretation of statutes — and let's even focus on those statutes that don't contain broadly recognized delegation of broad authority to judges — and of constitutional provisions (though Judge Sotomayor didn't focus on those). Still, it's pretty uncontroversial that even there judges should look at practical consequences. To my knowledge, all the Justices, including the strongest textualists and originalists on the Court (such as Justices Scalia and Thomas), routinely consider practical implications in interpreting statutes and constitutional provisions.

The cases that come before the Supreme Court are generally not ones in which the text provides one absolutely clear result. There are plenty of such cases in our legal system, but they tend to be resolved early, precisely because the result is clear. Rather, you often have several plausible readings. Figuring out the best reading often leads judges to ask whether one or another reading would have results that are ridiculous, or inconsistent with what was understood as the purpose of the provision, or unduly administratively burdensome.

Now one can certainly argue that courts should look first and foremost at the text and original meaning; but as I mentioned, I think nearly all Justices and judges would agree that the text and original meaning are often not dispositive. One can also ask that, within those boundaries, courts be attentive to precedent. But precedent itself has often been developed based on considerations of consequences (especially when the text and original meaning were ambiguous). And the decision whether to reverse precedent itself often involves consequentialist attention to "policy implications"; see for instance two recent reversals of precedent, Montejo v. Louisiana and Arizona v. Gant, in both of which Justices Scalia and Thomas were in the majority (and in one of which Chief Justice Roberts and Justice Alito were in the majority).

3. Finally, recall that many well-established constitutional tests, including ones that aren't controversial among conservatives, liberals, or pretty much anyone else, specifically call for an evaluation of consequences. Even Justices Scalia and Thomas, who would read the Equal Protection Clause as being a nearly categorical ban on race classifications by the government, would recognize an exception for "those measures the State must take to provide a bulwark against anarchy, or to prevent violence" (such as prison riots or "imminent danger to life and limb). Likewise, speech restrictions may sometimes be constitutional if they are necessary to serve a sufficiently important government interest — and you can't decide that without looking to the consequences of the decision.

I mention all this because talk about how judges shouldn't "make policy" has been commonplace now, especially on the Right. (Consider also the fuss about Judge Sotomayor's "the court of appeals is where policy is made" line.) And I think criticisms of excessive judicial policymaking — and in particular, in the sense Judge Sotomayor uses the phrase in the joke quoted above, decisionmaking based on what seems to the judge to be likelier to produce good results — are often correct. Sometimes the text or original meaning of a binding legal command is clear, and courts should follow that.

But it's a mistake, I think, to turn that important insight into a categorical assertion that judges shouldn't "make policy," or should just "follow the law" instead of "making the law." First, judicial development of legal rules, with an eye towards their consequences, is a longstanding feature of American law, recognized and accepted from the Framers onwards. (Yes, I know that there was often talk about how the courts "discovered the law" rather than "made the law," but the reality was that judges did indeed make important decisions based partly on the perceived consequences of those decisions, rather than just following unambiguous custom or the commands of abstract reason.) In the federal courts, the proper scope of the courts' pure common-law-making powers is less, but it's also supplemented by deliberate delegations by Congressional statutes.

Second, some judicial attention to consequences is inevitable given the ambiguity of the text and original meaning of most statutes and constitutional provisions. And third, the constitutional rules that courts have developed — with the support of even those Justices who care most about text and original meaning — expressly call for some degree of consequentialist reasoning in their application.

Any particular decision, or set of decisions, by a court or a judge can of course be faulted for unduly departing from the commands that one thinks should be legally binding. But a thoroughgoing condemnation of judicial attention to "policy implications" in the sense of a decision's practical consequences strikes me as unsupportable, especially in the American legal system as it has been understood for centuries and as it continues to be understood today even by the judges that the Right most applauds.

UPDATE: Ed Whelan e-mailed me to note that he has revised his post in light of this one, to say (italics indicates new text):

So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions involves is “ponder[ing] about ... policy implications.”

I much appreciate the revision, which does make Whelan's point narrower. But I think that on balance the criticism still isn't quite apt.

A. Recall that the Supreme Court agrees to hear only about 1-2% of the cases that it's asked to hear. Generally speaking, these are cases on which lower courts have split, or on which the courts have disagreed with Congress and the President on the meaning of the Constitution. They are therefore precisely the sorts of cases in which statutory or constitutional text is ambiguous. So the cases the Court hears tend to be precisely the ones that are most likely (not certain, but most likely) to involve a substantial legitimate zone for consequential judgment, even to those judges who think text and original meaning should trump. [UPDATE: D'oh! At first wrote "tend not to be ..."; how did that happen? Sorry.]

B. The Supreme Court is much less bound by its own precedents than are lower courts. In practice, the Supreme Court still adheres to its own precedents in nearly all cases, but it is free to reverse them — and, as I mentioned, concerns about consequences play a major role in deciding whether to reverse a precedent.

C. The Supreme Court it's not all bound by circuit precedent, where district and circuit judges are (except when the circuit is hearing a case en banc). So while district and circuit court arguments are often disposed of by simple citation to a binding circuit precedent, arguments in the Supreme Court often can't be disposed of so easily (and if they could be, the Court wouldn't have agreed the case, see item A).

So for all these reasons, it seems to me that Supreme Court justices are even more likely than other federal judges to legitimately consider the consequences of their decisions. What is indeed legitimately and particularly distinctive about the Supreme Court is that the Justices often can't say "we follow the clear text or original meaning" (since if it was so clear, the case would generally not even be at the Court), sometimes shouldn't say "we follow our own precedent" (since often there's a solid argument for reversing the precedent), and nearly never say "we follow circuit precedent." Instead, they must look to other sources — and consequences, for the reasons I described above, are one such important source.

Ann Althouse, guest-blogging at InstaPundit posts about a failed consumer fraud lawsuit about "crunchberries": Turns out there are no actual berries called "crunchberries" in Cap'n Crunch, but that's not a problem, the judge ruled. (Who knew?)

But she also asks, "AND: Did anyone ever sue Grape-Nuts?," which is a great excuse to mention Nashville Syrup Co. v. Coca Cola Co., 215 F. 527 (6th Cir. 1914):

Since [1892], [the Coca Cola Co.] has continuously manufactured and sold a syrup under the name, ‘Coca Cola‘; and, used as a basis for carbonated drinks, the syrup, under this name, has had a large sale in all parts of the country.... Plaintiff enjoyed the exclusive use of the name from 1892 until 1910. In that year, J. D. Fletcher, now the active manager of the Nashville Syrup Company (herein called defendant), became interested with others in the manufacture of a somewhat similar syrup being sold under the name ‘Murfe's Cola.‘ Later in that year they changed the name of their product to ‘Murfe's Coca Kola,‘ and shortly afterwards, Mr. Fletcher became sole owner of the business, and the product was named ‘Fletcher's Coca Cola,‘ and has been sold by him and his successor, the Nashville Syrup Company, under that name. [Coca Cola Co. sued.]

There remains the question whether the mark is deceptive.... [W]e assume that if the registered words clearly carried deception, and if their use really represented to the purchasers that the article was something essentially different from the thing which they actually received, the courts would not enforce any exclusive rights under such registration, both because plaintiff would come into court with unclean hands, and because such words could not be within the fair contemplation of the act, when it refers to ‘any mark * * * which was in actual and exclusive use as a trade-mark,‘ etc....

The argument is that the use of the name, ‘Coca Cola,‘ implies to the public that the syrup is composed mainly or in essential part of the coca leaves and the cola nut; and that this is not true. The fact is that one of the elements in the composition of the syrup is itself a compound made from coca leaves and cola nuts. This element becomes a flavor for the complete syrup, and is said to impart to it aroma and taste characteristic of both. This flavoring element is not in large quantity (less than 2 per cent.), but it is impossible to say that it does not have appreciable effect upon the compound. The question then is whether the use of the words is a representation to the public that the syrup contains any more of coca or of cola than it really does contain....

Plaintiff's counsel say, and so far as we see accurately say:

‘The use of a compound name does not necessarily * * * indicate that the article to which the name is applied contains the substances whose names make up the compound. Thus, soda water contains no soda; the butternut contains no butter; cream of tartar contains no cream; nor milk of lime any milk. Grape fruit is not the fruit of the grape; nor is bread fruit the fruit of bread; the pineapple is foreign to both the pine and the apple; and the manufactured food known as Grape Nuts contains neither grapes nor nuts.‘ ...

We conclude that the name Coca Cola as applied to plaintiff's product, while undoubtedly suggestive, is not so substantially and really deceptive as to invalidate the registered mark.

I wanted to blog a bit more about the Ninth Circuit's Nelson v. NASA case, on which the Ninth Circuit has just denied rehearing en banc. In Nelson, various contract employees working indirectly for NASA, challenged NASA's new background check policy, among other things under a federal constitutional right to informational privacy. The Ninth Circuit found that the plaintiffs were likely to succeed on this claim, and thus held that they were entitled to a preliminary injunction against enforcement of the policy. In particular, the Circuit concluded that it was likely unconstitutional for the government to ask various people who knew the employees — at least "references, employers, and landlords" and perhaps others — broad questions. Such question presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe, and the presumption couldn't be overcome on the grounds that the questioning was "narrowly tailored" to the government's interests

Form 42 [which was sent to people who had dealt with the employees] solicits “any adverse information” concerning “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” and “other matters.” These open-ended questions are designed to elicit a wide range of adverse, private information that “is not generally disclosed by individuals to the public”; accordingly, they must be deemed to implicate the right to informational privacy....

Considering the breadth of Form 42’s questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement. Asking for “any adverse information about this person’s employment, residence, or activities” may solicit some information relevant to “identity,” “national security,” or “protecting federal information systems,” but there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing “narrowly tailored” about such a broad inquisition.

But despite the insistence that the opinion is quite narrow, its implications seem stunningly broad; and in particular, it seems to me they would dramatically affect the course of ordinary government investigations.

Say a police officer — or SEC investigator or FBI agent or a wide range of other government investigator — is trying to investigate a crime. Naturally, to get a search warrant for someone's property, the officer would need probable cause to believe that the warrant would uncover evidence of a crime. But the officer often doesn't start out with such probable cause.

Instead, I take it that the officer would often ask around about each person who might be involved in the crime, even if chances are that the person isn't involved. He might go to landlords, employers, hotel clerks, acquaintances, and others, and ask questions, including open-ended questions. And the questions might deal with private matters, such as the suspect's romantic entanglements, sexual orientation, political ideology, financial pressures, medical problems, and the like. It would be wrong and possibly unconstitutional for the government to misuse this information, for instance by arresting and prosecuting the suspect because of his political views, even when he wouldn't have been arrested and prosecuted for the same offense if his views were different. But getting this information might well be helpful, depending on the circumstances, since it might reveal possible motives, associates, and other important information.

What's more, the police officer would generally be able (with a prosecutor's help) to order someone to answer such questions, by subpoenaing them to testify. The officer and prosecutor can get even highly confidential information, such as bank records, records of the telephone numbers the person has called, and the like, without probable cause: All it would take is a subpoena to the bank, and such subpoenas to third parties don't violate the Fourth Amendment, even when there is no probable cause for them. I realize that many disagree with this position, as to subpoenas (though I haven't heard much disagreement as to the asking around mentioned in the preceding paragraphs). But it is pretty clear that this is indeed the Court's view of the Fourth Amendment.

There are some limits on this; for instance, the officer can't subpoena privileged lawyer-client communications, and there are likely limits on the officer's power to subpoena abortion records and the like. But generally speaking a great many records, including bank and telephone records, are available without the need for probable cause or any showing of "narrow tailoring." In fact, the way that officers are supposed to develop the probable cause needed to get search warrants is precisely by gathering information without search warrants — including asking questions of people who might know the information.

The Ninth Circuit's decision, however, suggests that all such investigations are potentially subject not just to the Fourth Amendment (and the Fifth Amendment privilege against self-incrimination, when it comes to coercive questioning of the suspect himself), but also to the right of privacy. After all, the police officer or other government investigator is as much a government actor as is NASA. (The right to privacy, if it applies here, applies equally to the federal government and state and local governments.) If anything, the constitutional constraints might apply even more to the government acting as sovereign to investigate private individuals, as opposed to the government acting as employer to investigate its own employees or contractors. They certainly wouldn't apply any less.

So say an officer is investigating an alleged theft, and there a bunch of people who had the opportunity to commit the theft, though the great majority of them are likely be innocent. The officer will no longer be free to ask people broad questions about what they know about a potential suspect, and in particular whether they have any information about their "financial integrity," "abuse of alcohol and/or drugs," "mental or emotional stability," or "other matter." After all, while asking such questions "may solicit some information relevant to [the investigation], there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests." How could there be? The officer doesn't know yet exactly what's going to be relevant, and might not know until much later, when a casual revelation that Joe was sleeping with Mary, coupled with the revelation that Mary had an expensive cocaine habit, might explain why Joe might have had a special motive to commit the crime.

And presumably asking around about a person's sexual partners, political beliefs, medical condition, financial obligations, and the like would be even more likely unconstitutional, since that would be direct questioning about matters that are most likely to be seen as private. And yet, as I mentioned above, that sort of picture of people's lives is often vital to figuring out who might have the motive to do something, or who his likely accomplices might be, or even who else might be worth asking about the matter.

Now maybe this is the way things should be. Maybe even when there's no search or seizure for Fourth Amendment purposes, and when there's no compelled self-incrimination for Fifth Amendment purposes, there should be an extra constitutional requirement that asking around about a suspect be "narrowly tailored" if the questioning may reveal private information. Maybe the police shouldn't ask broad questions, but be limited to focused questions that are directly supportable at that point by what the police already know.

But I'm pretty skeptical that this would indeed be a good constitutional law rule — and I see no basis in Whalen or in the Court's other precedents for suggesting that there's a constitutional right to information privacy that so constrains the government's asking questions about people. And one way or the other, it seems to me that the Nelson decision has implications far beyond the government's background checks of its own employees.

makes its first appearance in a published court opinion. For more on this beast, see here. For links to the other opinions in the case, see here. For my earlier thoughts on why the panel decision was mistaken, see here. I might have more after I read the opinion related to denial of rehearing en banc, and reread the panel opinion.

I was recently reminded of one of my favorite quotes, generally attributed to Albert Einstein:

The best explanation is as simple as possible, but no simpler.

One of the ads that's now running here (I saw it on the comments page for the Muslim population post) is for Muslima.Com, "The International Muslim Matrimonials Site!" (exclamation point in original). I wish all our Muslim readers -- as well as all our other readers -- happy marriages, and if such a happy marriage results from the ad, I will be very pleased.

Thanks to commenter RPT for the heads-up.

The Second Circuit hasn't.

I'm please to report that there's now a published Japanese translation of Academic Legal Writing (translated by Professor Makoto Ibusuki and Ms. Naoko Iwakawa):

I should have noted in my post below that the 5-to-7-million American Muslims estimate was one of the higher-end estimates. Estimating the Muslim Population in the United States by Tom W. Smith of the National Opinion Research Center (2001) reports that

The best, adjusted, survey-based estimates put the adult Muslim population in 2000 at 0.67 percent or 1,401,000, and the total Muslim population at 1,886,000. Even if high-side estimates based on local surveys, figures from mosques, and ancestry and immigration statistics are given more weight than the survey-based numbers, it is hard to accept estimates that Muslims are greater than 1 percent of the population (2,090,000 adults or 2,814,000 total).

I haven't examined the matter closely myself, so I don't have a truly informed opinion. But to my knowledge, Smith is quite well-regarded in the field, and is the director of the very well-regarded General Social Survey. So at the very least the 5 to 7 million American Muslims figure should be viewed with some skepticism, recognizing that the number might be 2 to 3 million instead.

UPDATE: Thanks to commenter wm13, here's a 2007 Pew Research Report estimating the number at about 2.35 million. Pew, like the GSS, is a well-regarded survey organization, which to my knowledge has no axe to grind on this issue.

One view (at first endorsed by Andrew Sullivan, though later changed to "see[ing] the deeper point"):

I think that the United States and the West generally, we have to educate ourselves more effectively on Islam. And one of the points I want to make is, is that if you actually took the number of Muslims Americans, we'd be one of the largest Muslim countries in the world. And so there's got to be a better dialogue and a better understanding between the two peoples.

Another view. I haven't independently checked the data, but I'm pretty sure that with about 5 to 7 million Muslims [UPDATE: that seems to be one of the higher-end estimates], we don't even make the list. Certainly "one of the largest" is subjective enough to leave some wiggle room, but not that much wiggle room. If we're one of the largest, then Burkina Faso (with more Muslims than there are in America, and according to Wikipedia, #30 on the list) must be a veritable giant of a Muslim country.

A small matter, but it struck me as worth noting.

From In re the Termination of Parental Rights to MyKarla M. (Wisc. Ct. App. June 2):

MyKarla was born in Antigo in August 2004. A few days after MyKarla’s birth, her mother, Misty, moved with MyKarla to Milwaukee to join Bobby. In January 2005, Misty and MyKarla returned to Antigo. While in Milwaukee, Misty and MyKarla briefly resided with Bobby’s mother. Bobby lived with them part of the time, but he was also incarcerated part of the time. When Misty and MyKarla moved back to Antigo, MyKarla was four months old. For the next year, Misty and MyKarla lived by themselves in Antigo, and Bobby was in Milwaukee.

In January 2006, Langlade County took MyKarla into custody following a drug raid at Misty’s apartment. Two weeks later, the County placed MyKarla in her maternal aunt’s home. The County then alleged, and the court found, that MyKarla was a child in need of protection or services (CHIPS). The CHIPS order continued placement with MyKarla’s aunt.

Two years later, the County filed a petition to terminate Bobby and Misty’s parental rights. Following a trial, a jury found grounds existed to terminate the parental rights of both parents.

At the dispositional hearing, the court found both parents unfit. Misty then voluntarily terminated her parental rights. As for Bobby, the court concluded it was also in MyKarla’s best interests to terminate his parental rights....

The second part of Bobby’s attack on the circuit court’s discretion concerns its failure to consider the effect of severing MyKarla’s ties to her African-American relatives. Wisconsin Stat. § 48.426(3)(c) requires courts to consider a child’s substantial family relationships. Bobby does not argue the four months MyKarla resided with Misty at his mother’s house created a substantial relationship. Nor does he assert he has any other relatives who forged a bond with MyKarla. Instead he contends that “a shared racial heritage with relatives also creates a substantial relationship concerning matters of culture and history.”

Wisconsin law does not require courts to consider race when determining whether to terminate parental rights, and Bobby cites no authority holding there is such obligation. Instead, he cites as persuasive a twenty-six-year-old case from Pennsylvania. See Miller v. Berks, 465 A.2d 614 (Pa. 1983). In Miller, the court determined Pennsylvania’s statutory requirement that placement petitions identify the racial background of adopting parents and potential adoptees indicated the legislature intended race to be a factor in determining the best interests of the child. The Wisconsin placement statute contains no such requirement, see Wis. Stat. § 48.837(2), nor have Wisconsin courts interpreted either our state’s termination of parental rights or adoption statutes to require consideration of race.

In Wisconsin, courts must only consider whether it would be harmful to sever the child’s substantial relationships with parents or relatives. Wis. Stat. § 48.426(3)(c). A shared racial heritage does not by itself create a substantial relationship. If it did, any familial relationship would be substantial, and the use of the word would be surplusage — a result we avoid when discerning the meaning of statutes.

Bobby does not allege MyKarla has any substantial relationships with her African-American relatives, except to the extent she shares a racial heritage with them. Nor does the record indicate any. Therefore, because MyKarla has no substantial relationships with her African-American relatives, the court was not required to consider the effects of severing her legal ties to them.

UPDATE: From commenter ARCraig: "Clearly a mixed-race child could never be raised successfully by their white mother's family. It's not like such a person could ever be elected President or anything."

So the Ninth Circuit has just held in Catholic League for Religious and Civil Rights v. City and County of San Francisco. I argued likewise when the matter first arose, though I also disapproved of San Francisco's resolution on nonconstitutional grounds.

An interesting decision of the U.S. Air Force Court of Criminal Appeals (U.S. v. Harvey), handed down two months ago but just now appearing on Westlaw:

In [U.S. v. Marcum], C.A.A.F. held that constitutional challenges to Article 125, UCMJ, 10 U.S.C. § 925, based on [Lawrence v. Texas], must be addressed on an as applied, case-by-case basis. Marcum identified a three-part test for addressing Lawrence challenges within the military context. Under the three-part test, courts ask: (1) was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court in Lawrence; (2) did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence; and (3) are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest? ...

[The court answered questions 1 and 2 by concluding that the private, consensual conduct here was within the Lawrence sexual autonomy right.-EV] [As to question 3, t]he appellant's case did not involve a situation whereby the appellant was in a superior-subordinate relationship with his paramour. His case also does not involve the violation of the law, military instructions, regulations, or policies as a precursor to his conduct. Lastly, the appellant's conduct did not involve a situation wherein the appellant was involved in a sexual relationship with the married spouse of another military member. In short, there are no additional factors relevant solely in the military environment that affect the nature and reach of the appellant's Lawrence liberty interest....

[W]e must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman. Axiomatically, a "higher code termed honor" holds military officers to stricter accountability than their enlisted and civilian counterparts.

The command structure and the necessity for good order and discipline prohibit officers from acting in ways that "bring dishonor or disrepute upon the military profession which [they represent]." The elements of the offense of conduct unbecoming an officer and a gentleman are: (1) that the accused did or omitted to do certain acts, and (2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal.... All that is required is for the offender's conduct to fall below the level of conduct expected of officers and to seriously expose him to public opprobrium. Moreover, military law is replete with examples of conduct protected by the Constitution when engaged in by civilians but which becomes criminal when engaged in by military members.... [T]he fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ....

In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), [Footnote: These rumors abounded throughout the Incirlik Air Base and local Turkish communities and caused at least one Turkish national, Mr. MH, enough consternation that he reported the appellant's conduct to base authorities and took actions into his own hands by secretly videotaping the appellant's act of fellatio] evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.

The court affirmed the conviction, which ultimately yielded only a reprimand.

UPDATE: CAAFlog has more on this; thanks to commenter Cloudesley Shovell for the pointer. Thanks also to several commenters who pointed out that my initial reading of the case -- that the defendant was dismissed as well as being reprimanded -- was mistaken; the convening authority apparently reduced that initial sentence to a reprimand alone.

The NRA reports that it filed its petition for certiorari in NRA v. City of Chicago today, the day after the Seventh Circuit handed down its decision. (The NRA had 90 days to file.)

UPDATE: I've uploaded the petition here.

The Seventh Circuit decision (from Chicago), holding that the Second Amendment doesn't apply to the states, is covered in a nearly-800-word story today. The Ninth Circuit decision (from Northern California) this April, holding that the Second Amendment does apply to the states, wasn't covered at all by the Times at the time. [UPDATE: I realized that my earlier locution here, "wasn't covered at all," was ambiguous; I meant wasn't covered at the time, but in context it could be read as saying that the article about the Seventh Circuit case doesn't mention the Ninth Circuit decision -- it does, about halfway down.]

To be sure, there are possible explanations: Today's story was by the Times' Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it's made higher profile by the controversy about Judge Sotomayor's participation in the Second Circuit's no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit's incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

So it seems to me that both cases would have been newsworthy to the L.A. Times, the Ninth Circuit case at least as much as the Seventh Circuit case. But as I noted shortly after the Ninth Circuit decision, the Ninth Circuit case wasn't covered in the L.A. Times at the time.

Likewise, the Washington Post mentions the Seventh Circuit case (though in a heavily Sotomayor-focused article) and didn't mention the Ninth Circuit case when that came down.

Ilya's serious post gives me an excuse to repeat my unserious question from several years ago: The overseas Chinese are sometimes called "The Jews of the Orient." But what is the common bond between Jews and Koreans?

The answer is:

A poor joke, but mine own.

The story is at CNSNews.com, and it begins:

Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed.

Now it might have been more informative to say that she was one of the three judges on the panel; but let's set that aside, and focus instead on the following:

The meaning of the Second Amendment has rarely been addressed by the Supreme Court. But in the 2008 case of Heller v. District of Columbia, the high court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.

The Second Amendment, the Supreme Court ruled, “guarantee(s) the right of the individual to possess and carry weapons in case of confrontation. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

“There seems to us no doubt,” the Supreme Court said, “that the Second Amendment conferred an individual right to keep and bear arms.”

Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right — and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local — the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court.

I don't think that's quite fair. The "and therefore" phrase sounds pretty clearly like part of the assertion about what "the Heller decision held." But that's not what Heller held at all: Heller specifically said that it was holding nothing about the application of the Second Amendment (via the Fourteenth Amendment) to state and local governments. (Footnote 23 of Heller: "With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case ....") Let's go on:

“And to the extent that Heller might be read to question the continuing validity of this principle, we must follow Presser because where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which [it] directly controls.”

In its 2008 case, the Supreme Court’s took a different view of its own 1886 case, saying that Presser had no bearing on anything beyond a state’s ability to outlaw private militia groups.

“Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations,” the court ruled. “This does not refute the individual-rights interpretation of the Amendment.”

But aggain that's not right: Heller explicitly said (in the same footnote 23 I mentioned above) that "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Presser, in the Court's view, did have some bearing on something beyond a state's ability to outlaw private militia groups — in fact, it had bearing on the very question of whether the right to bear arms applied to the states. Moving on:

The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.

Actually, the Supreme Court has expressly held that the Seventh Amendment right to civil jury trial doesn't apply to the states, and that neither does the Grand Jury Clause of the Fifth Amendment. Unless I'm mistaken, the Excessive Bail and Excessive Fines Clauses of the Eighth Amendment haven't been incorporated, either, though their not being incorporated isn't as well-settled as it is for the Seventh Amendment or the Grand Jury Clause. Moving on again:

The Fourteenth Amendment reads, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

Here the story omits precisely that constitutional clause (the Due Process Clause) that the Court has indeed used to incorporate most of the Bill of Rights against the states. Moving on again:

Sotomayor’s ruling ran to the left of even the reliably liberal San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which ruled in the April 2009 case Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.

Surely the Ninth Circuit is not reliably liberal; it has plenty of conservative judges, who get their way often enough. (The CNSNews story came out before the conservative panel on the Seventh Circuit ruled against incorporation.)

One can certainly anticipate that Judge Sotomayor is likely to be no friend of the individual right to bear arms, as applied to the federal government or to state and local governments; that seems likely given the political wing from which she comes. (This isn't certain, as liberal Judge Pregerson's and conservative Judge Posner's views make clear, but it's the likely bet.) One can certainly criticize the Maloney opinion, as well as the Seventh Circuit opinion, which I in some measure criticized earlier today. And in particular one can certainly argue that the incorporation of the Second Amendment via the Due Process Clause isn't foreclosed to lower courts, because past Supreme Court decisions rejecting incorporation focused on the Privileges or Immunities Clause.

But that's a pretty subtle argument, and if made would show at most that the Maloney opinion was pretty subtly wrong. The CNSNews story avoids the subtlety, and seems to assert that the Maloney opinion was patently and blatantly wrong. But in doing so, it seems to me, the story itself errs, several times and in pretty big ways.

The case is People v. James, just decided today. Here's the core of the analysis:

[As Heller holds, “the right secured by the Second Amendment is not ... a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Rather, it is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense. It protects the right to possess a handgun in one’s home because handguns are a “class of ‘arms’ that is overwhelmingly chosen by American society” for the lawful purpose of self-defense.

As the court’s discussion makes clear, the Second Amendment right does not protect possession of a military M-16 rifle. Likewise, it does not protect the right to possess assault weapons or .50 caliber BMG rifles. As we have already indicated, in enacting the Assault Weapons Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004, the Legislature was specifically concerned with the unusual and dangerous nature of these weapons. An assault weapon “has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.” (§ 12275.5, subd. (a).) The .50 caliber BMG rifle has the capacity to destroy or seriously damage “vital public and private buildings, civilian, police and military vehicles, power generation and transmission facilities, petrochemical production and storage facilities, and transportation infrastructure.” (§ 12275.5, subd. (b).) These are not the types of weapons that are typically possessed by law-abiding citizens for lawful purposes such as sport hunting or self-defense; rather, these are weapons of war.

I can't speak to the wisdom of a .50-caliber ban, but this seems to be a sensible interpretation of Heller's test for what "arms" are protected. Moreover, as I argue in my forthcoming Implementing the Right to Keep and Bear Arms in Self-Defense article, this is also consistent with a sensible interpretation of the right to keep and bear arms in self-defense. In my article, I argue that Heller's "typically possessed by law-abiding citizens for lawful purposes" test is flawed. But, among other things, I argue that the right to bear arms for self-defense shouldn't be seen as infringed by restrictions that don't materially interfere with the right to self-defense; and a ban on .50-caliber rifles doesn't materially interfere with self-defense (see PDF pages 12-19 and 48, as well as PDF pages 37-42 for the discussion of interpreting the scope of "arms" post-Heller).

This doesn't speak, of course, to the right to keep and bear arms for other reasons, such as deterrence of government tyranny and the like. But I leave that questions to others (much as the Court did in Heller); writing 100+ pages on the right to bear arms in self-defense is enough for me.

Just as improper as through any other means. No surprise to most of us, I'd expect, but it apparently was to the judge.

Thanks to Victor Steinbok and Legal Blog Watch for the pointer.

in his Forbes column -- this time criticizing the conservative judicial minimalist case against her:

Alas, the inescapable truth is that constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint. The public outcry over the Supreme Court's rendering of the "public use" language in Kelo v. City of New London was for its failure to use plain constitutional language to stop the egregious decision of New London to condemn Ms. Kelo's land literally for no reason at all. If that's judicial activism, then words have lost all meaning.

These observations have clear implications for the ongoing debate over the Sotomayor nomination. However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

Her opponents have to engage in a more fine-grained inquiry that shows why the judges, like Sotomayor, who work in the progressive tradition embrace a judicial philosophy that leads them to make both kinds of constitutional errors. Intervening in cases where they should stay out--Roe v. Wade comes to mind--and not intervening where they ought to intervene, as in Kelo and Didden. To this libertarian, Karl Rove's broadside won't get this campaign off to an auspicious start.

William Saletan (Slate) has an interesting and thought-provoking article on the murder of abortion provider George Tiller; worth reading, it seems to me, whether one is pro-life or pro-choice. I should say, though, that the argument in the closing paragraph is too glib:

The reason ... pro-life groups have held their fire [in arguing for violent defense of fetuses], both rhetorically and literally, is that they don't really equate fetuses with old or disabled people. They oppose abortion, as most of us do. But they don't treat abortionists the way they'd treat mass murderers of the old or disabled. And this self-restraint can't simply be chalked up to nonviolence or respect for the law. Look up the bills these organizations have written, pushed, or passed to restrict abortions. I challenge you to find a single bill that treats a woman who procures an abortion as a murderer. They don't even propose that she go to jail....

If you don't accept what [Tiller's murderer] did, then maybe it's time to ask yourself what you really believe. Is abortion murder? Or is it something less, a tragedy that would be better avoided? Most of us think it's the latter.

It seems to me that there's a third option that the piece deliberately omits — that abortions, whether all abortions, late-term abortions, or some other subset of abortions — are not quite murder but should still be forcibly prevented. I take it that is the view of many generally pro-choice people about late-term abortions. There is very broad support for criminalizing such abortions but not, I think, for treating them as murder. I think that the article is right in saying that even most pro-life people don't really view abortion as morally tantamount to murder; but that doesn't mean that it has to be just a "tragedy."

One can debate the logical basis for this distinction, just as one can debate the logical basis for any lines one draws in the abortion field. Having three options (murder / crime short of murder / not a crime) rather than two (murder / not a crime) requires some slightly different justification, but not, I think, of a character that's radically different than the justification required for the two-option solutions.

The Seventh Circuit's Second Amendment non-incorporation decision so suggests:

Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as far-fetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety — whether guns deter or facilitate crime is an empirical question — but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868.

Note that the court's argument isn't simply that lethal self-defense could be constitutionally limited to situations where it's genuinely necessary to protect against (say) death, serious injury, rape, or kidnapping. Rather, the argument must be that lethal self-defense could be constitutionally barred altogether. Otherwise the court's argument that "That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens" wouldn't work: The argument rests on the assumption that guns would be unusable to "law-abiding citizens" because "[lethal] self-defense would itself be a crime."

Likewise, the argument is not only that certain tools for lethal self-defense could be barred. That's the conclusion that the panel is trying to reach by arguing (I repeat) that lethal self-defense could itself be made a crime. (I read "self-defense" as meaning "lethal self-defense" in context.)

Now not all bad laws, even evil laws, are unconstitutional laws. And the lower court cases (all of them pre-Heller, except Brett, N. v. Community Unit School Dist. No. 303, 2009 WL 424546 (N.D. Ill. 2009)) are indeed split on whether there is a constitutional right to self-defense. But it seems to me that the case for such a right — including a right of lethal self-defense when necessary to prevent death, serious bodily injury, rape, and kidnapping — is very strong, even under the narrowest accepted test for recognizing constitutional rights (the Glucksberg test, from the decision that rejected a claimed right to assisted suicide). For a past on-blog debate on the subject, see this post chain.

The case is NRA v. City of Chicago, the challenge to the Chicago handgun ban. The core argument:

Cruikshank, Presser, and Miller [v. Texas] [late 1800s Supreme Court precedents -EV] rejected arguments [for applying the Second Amendment to the states -EV] that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states.... [P]laintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils.... Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009) [that's the nunchaku case in which Judge Sotomayor was on the panel -EV]. We agree with Maloney ....

Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Cruikshank, Presser, and Miller have “direct application in [this] case”. Plaintiffs say that a decision of the Supreme Court has “direct application” only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.

Anyone who doubts that Cruikshank, Presser, and Miller have “direct application in [this] case” need only read footnote 23 in Heller. It says that Presser and Miller “reaffirmed [Cruikshank’s holding] that the Second Amendment applies only to the Federal Government.” The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing validity on incorporation” is “a question not presented by this case.” That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision. State Oil Co. v. Khan, 522 U.S. 3 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)) demolished Albrecht’s intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht’s rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs’ lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht’s shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, “for it is this Court’s prerogative alone to overrule one of its precedents.”

I don't think this reasoning (from Judge Frank Easterbrook, joined by Judge Richard Posner and Judge William Bauer) does justice to the plaintiffs' arguments. "Selective incorporation" isn't just a different "line of argument" for incorporation -- it is an argument under a different constitutional clause, the Due Process Clause of the Fourteenth Amendment (something the opinion doesn't mention). The late 1800s cases rejected direct application of the Second Amendment to the states, and incorporation via the Privileges and Immunities Clause of the Fourteenth Amendment. They didn't discuss in any detail whether state restrictions on the right to bear arms were potentially unconstitutional under the Second Amendment as incorporated via the Due Process Clause -- the very clause through which most of the Bill of Rights was later incorporated.

And I know of no precedents holding that lower courts must reject arguments against a statute under one constitutional clause just because similar statutes have been upheld against challenges under a different constitutional clause. Such arguments under different constitutional clauses don't call on the lower court "to overrule one of [the Court's] precedents," because the precedent deals only with an earlier clause. For instance, when the Court held that the mandatory federal Sentencing Guidelines generally violate the Jury Trial Clause, it wasn't overruling its past precedents that upheld the Guidelines against separation of powers challenge; it was considering a different constitutional challenge.

Likewise, when the Court held that closing a criminal trial, even with the defendant's permission, presumptively violated the First Amendment, it wasn't overruling the then-one-year-old precedent that upheld such a closure against a Public Trial Clause challenge. And when the Court held that preferences in city-funded construction contracts for city residents violated the Privileges and Immunities Clause of Article IV, it wasn't overruling the then-one-year-old precedent that upheld such preferences under a Commerce Clause challenge. And lower courts would similarly not have been barred from adopting such arguments, because they wouldn't have been trying to "overrule" a past precedent. See, e.g., Waters v. Churchill, 511 U.S. 661, 678 (1994) (plurality opinion) ("[C]ases cannot be read as foreclosing an argument that they never dealt with.") (citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952)); see also Miller v. California Pac. Med. Ctr., 991 F.2d 536, 541 (9th Cir. 1993) ("It is a venerable principle that a court isn't bound by a prior decision that failed to consider an argument or issue the later court finds persuasive.").

Moreover, the Court itself made clear, in roughly the era in which the cited cases were decided, that the two amendments might have separate coverage: "[Defendants] appeal to another clause of the 14th Amendment, and insist that the self-incrimination which they allege the instruction to the jury compelled was a denial of due process of law. This contention requires separate consideration, for it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law." Twining v. New Jersey, 211 U.S. 78, 99 (1908) (since reversed as to the substantive question whether the privilege against self-incrimination should indeed be applicable to the states via the Due Process Clause).

Nor does the quotation from footnote 23 of Heller fully dispose of the plaintiffs' arguments. That "Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government" doesn't speak to whether the Due Process Clause applies the right to bear arms to state laws, under

This having been said, figuring out the exact scope of the Court's precedents on this matter isn't easy. Heller did start the quoted footnote with the phrase, "With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases." This could reasonably be read as saying that Cruikshank was indeed dispositive of the incorporation question (though that it might no longer be valid, which is to say might merit overruling). It also treats the Fourteenth Amendment as a unitary basis for incorporation, rather than treating the two clauses separately. Other Court decisions have likewise spoken in broad terms, see, e.g., Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958) ("By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment," citing among other things Cruikshank as to the "right to keep and bear arms"), overruled as to the substantive question of incorporation of the privilege against incrimination, Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). (Presser also said in passing that, "The argument of the plaintiff in error that the legislation mentioned deprives him of either life, liberty, or property without due process of law, or that it is a bill of attainder or ex post facto law, is so clearly untenable as to require no discussion," but not having the briefs in front of me it's hard to tell whether this was a rejection of the incorporation-via-due-process argument or of a separate procedural claim.)

So it's not implausible, I think, to treat the Court's precedents as stare decisis on the question of incorporation via the Fourteenth Amendment generally, rather than solely of incorporation via the Privileges or Immunities Clause (though I'd probably be inclined to the other position). But it seems to me that the case is not nearly as clear as the Seventh Circuit's analysis suggests, and that the opinion's not discussing the difference between the two Clauses of the Fourteenth Amendment is a significant weakness.

(though probably adaptable to many other groups):

1. Debates seem to get more of a turnout than lectures.

2. If you can't set up a head-to-head debate, for instance because local professors (see below) aren't confident that they'll entirely disagree with the visitor), set up a two-person panel, or a talk-plus-commentary.

3. Events that involve a local professor — a debate, a panel, or even the professor's just introducing a guest speaker — will probably get more of a turnout, because it will bring in the professor's local fans.

4. Publicize, publicize, publicize, using all the tools at your disposal — e-mail, flyers in mailboxes, postings on bulletin boards, postings on class chalkboards, if your school allows that, and whatever else you can think of.

5. For topics, the usual sexy ones are good: affirmative action, gun control, abortion, church-state separation, campaign finance, and the like. Other topics can work as well, especially if you can find a well-known visitor who wants to talk about the things he likes. But generally speaking the old standards work well. Even if you feel that not a lot of views are going to be flipped on these topics, sometimes you can succeed just by moving people from unreflective support for the liberal conventional wisdom to a more agnostic position.

6. If you want to bring in a relatively prominent speaker from out of town, offer to coordinate with other chapters in your city, so that the speaker can — if he wants to — give several talks on one trip. This may substantially increase the chances that the speaker will want to take the considerable time and effort that modern airplane travel requires.

7. Provide lunch — the better, the better. [UPDATE: I originally forgot this one, even though it's in some ways the best way of boosting turnout; thanks to the commenters for reminding me.]

These are of course all guidelines, not hard-and-fast rules. For instance, I've generally preferred to talk about slippery slopes, never with a debater (it's not a subject that lends itself well to head-to-head debates) and often without even a local commentator, and that's generally worked out quite well. But I think that most of the time, those guidelines will prove helpful.

I haven't seen it published anywhere, or cited in any articles or books on blasphemy, so I thought I'd pass it along, since it seems to be one of the few available early decisions on blasphemy. I should note that I'm passing this along solely in case people are curious about it, and in case it helps people in their research -- I'm not trying to make any statement about what the law ought to be, or even about the original meaning of the First Amendment or related state constitutional provisions.

The report is from Law Intelligence, Franklin Gazette, p. 2, Nov. 17, 1818, but it's also reprinted in much the same form in a contemporaneous newspaper article that's available here:

Mr. Bache,

The following paragraph is extracted from the Democratic Press of Saturday last --

“At a meeting of the friends of ROBERT C. MURRAY, held at the Rialto Tavern, No. 130, South Sixth Street, November 13, it was resolved that this meeting highly disaprove of the prosecution of Robert C. Murray for the expression of opinions on the subject of RELIGION, which were the opinions of Franklin and Jefferson, two of the greatest and best men, that ever lived in any age or country -- and that we now adjourn to meet again at this place, on MONDAY EVENING NEXT, at 7 o’clock, and that all enemies of Religious Persecution be invited to attend at that meeting.

JOSEPH AILES, chairman.

“John Syng, secretary.”

There is in our code, an unrepealed Act of Assembly, of the year 1700, which punishes with a fine of ten pounds, for the use of the poor, or an imprisonment at hard labour for three months, whomsoever “shall willfully, premeditatedly, and despitefully, blaspheme, or speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit or Scriptures of Truth.” 1 Smith’s State Laws, page 6.

Under this act, Robert C. Murray was indicted at the last Mayor’s Court, for Blasphemy. His counsel entered the plea of “Not Guilty” on his behalf; and the case was, in the ordinary way, submitted to a jury of his country.

The evidence for the prosecution was brief, distinct, and forcible. Two witnesses swore that they had heard the defendant, at various times and places, utter the following language -- “That Christ was a bastard -- his mother a w---- and the bible a pack of lies.”

(Show the rest of the newspaper account of the case.)

In his defence, Robert C. Murray adduced some evidence of the general goodness of his character; and his counsel argued upon the court and the jury, that the law, under which the indictment had been framed was unconstitutional -- that it was inconsistent with, and of course, repealed by the constitution -- and cited the following sections to support their position.

3d Section of Article 9. “That all men have a natural and indefeasible right to worship Almighty

God according to the dictates of their own consciences: that no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishments or modes of worship.”

7th section. “The free communication of thoughts and opinions is one of the invaluable rights of

man: and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”

1st paragraph of the Schedule. “That all laws of this Commonwealth, in force at the time of making the said alterations and amendments in the said constitution, and not inconsistent therewith, &c. shall continue as if the said alterations and amendments had not been made.”

On the part of the Commonwealth, it was observed that the Mayor’s Court of the City of Philadelphia would hardly venture to adjudge an act of Assembly unconstitutional, which had been published under the sanction of the Legislature, and otherwise recognized, since the adoption of the constitution. That the law was not inconsistent with the provisions in that instrument, to which reference had been made. That a “wilful premeditated, and despiteful blasphemy,” such as was charged in the Indictment and proved by the evidience, could not be considered as “the worship of Almighty God according to the dictates of conscience” nor could it be deemed “a right of conscience” -- nor such a free communication of thoughts and opinions” as is justly termed “of the invaluable rights of man.” Neither the language nor the spirit of the Constitution could be construed to sanction a licentious, unnecessary, intrusive, and obscene course of profanity, shocking to every upright mind, and which, abstracted from all religious belief, could be uttered no where without exciting sensations of pain, and of extreme repugnance.

The Court, in charging the Jury, merely remarked that as to the law no doubt could be entertained. They were not going to declare any act of Assembly unconstitutional; and if the Defendant thought he could satisfy a higher tribunal that the offence with which he is charged is not indictable in this State, a writ of error would doubtless be granted for the purpose. It was certainly the right of every citizen to entertain what religious opinions he preferred; and, if he felt inclined, to utter them, in a proper manner, without restraint; -- but while one man exercises his rights, let him not offend against the rights of others -- let him not intrude indecently and shockingly upon the sacred belief, and scruples of those who think differently from him. The expression of a mere speculative opinion, in argument or in decent language, is no where censurable. -- but if the Jury think the defendant uttered the expressions which have been given in evidence, wantonly and maliciously, without cause and without provocation, they ought to convict him.

The Jury without retiring from the box, gave in a verdict of “Guilty.”

Motions for a new trial, and in arrest of Judgment, were then made by the Defendant’s Counsel, which, after argument, were severally dismissed by the Court, and on the following Monday, the Recorder pronounced the subjoined.

SENTENCE

You have been convicted of the odious crime of blasphemy, an offence which, to your shame, and the honor of society, is as seldom heard of, as the depravity which excites to it, is hopeless and disgusting. Of the various crimes which, as guardians of the public morals, it is our duty to punish, there are few which circumstances will not in some degree extenuate. The illegal possession of another’s property, may be often traced to the pressure of want, whether resulting from misfortune or from unsuccessful crime, and the catalogue of offences from assault to murder, is generally supplied by the operation of real or imaginary wrongs, which animate the victim to hasty and criminal revenge. But for the blasphemer there is no apology. The nature of his transgression forbids the expectation of profitable fame, and of contemporary relief from penury or despair, and instead of being justified by motives of retribution for injuries, he lifts his feeble arm against the author of his being, who pities his infirmities, and extends to him the hand of reconciliation. The blasphemer’s aim is mental desolation; he seeks no other recompense than the infliction of despair, and to the honour of a christian people, is rarely listened to but with horror and disgust.

It were painful even if it were desirable, to repeat the language in which you have dared to blaspheme the SAVIOUR OF THE WORLD. It has been attempted to defend you by an appeal to those invaluable rights of freedom of speech, and universal toleration, which, in all matters of religion and conscience, are secured by the constitution. It is said the constitution of this commonwealth contains an implied repeal of the statute on which this prosecution is founded. But obvious indeed, must be the course of implication, to determine the repeal or unconstitutionality of a statute so salutary and necessary, before this court would think themselves justified to abolish a restraint which is to be found in the code of every christian people. For us it is sufficient that the law in question has not only never been repealed, but has actually been recognized as still in force, by a recent publication of the acts of assembly, under the authority of the legislature. In cases like the present, therefore, it is the duty of the court to rely upon the positive provission on the law, and to leave to the supreme tribunal of the state, the resolution of those doubts which have been raised in this case. To that tribunal let our decission be submitted,

To us the terms of the constitution do not appear inconsistent with the provisions of the act of Assembly, Every man possesses an undoubted right to entertain and express his peculiar opinion on the subject of religion, so far as he exercises it without an interference with the religious privileges which the constitution equally secures to his neighbour. The liberty of speech, in matters of this kind, is analogous to the liberty of the press, which guarantees to every citizen “the right to speak, write, and print on any subject, being responsible for the abuse of that liberty.”

The application of the law, appears to us, to leave you without a single circumstance to excuse or extenuate your indecency, insolence and crime. -- So far from having emp0loyed the impious and obscene language recited in the indictment, in the heat of argument, or when provoked by opposition, you have obtruded on those, to whom it was peculiarly offensive, and whose happy confidence in the Christian faith, it was your object to destroy. Nor have you confined your malicious activity to the sphere of private conversation. Citizens have been insulted with your profanity and indecency, in the public streets; and, to complete your insolence, you have accosted them with scoffing on their way to public worship. -- It is time you should know that you cannot with impunity sport with the feelings and happiness of your fellow citizens; common decorum and good manners, as well as law and religion, forbid it. You must be taught that respect even to the prejudices of others, on so important a topic as that of religion, is due to the humblest individual in society. Can it be otherwise than criminal, maliciously to destroy the happiness of another, by depriving him of his confidence in revealed religion, and rendering him a prey to doubt and despair? The least malicious injury to the person or property of another is an object of punishment, and it is to accuse our code of the grossest inconsistency, to suppose it less regardless of mental rights, the most indispensable to human happiness.

On a subject of so great importance, and on which you appear hitherto to have been so ignorant and thoughtless we advise you to seek information. -- It cannot fail to impress on your mind a conviction of your errors and your danger, and to induce you to abandon those shocking sentiments, which, whether seriously entertained, or thoughtlessly sported, will, without atonement, terminate in interminable ruin.

Your age and infirmities render you an object of compassion. -- It is time you had reflected on the wickedness of the past, and contemplated the awful certainty of the future, for the day is not far distant, when, without repentance, you will be compelled to acknowledge, under the tortures of a guilty conscience, the truth and power of revealed religion.

The offence of which you have been convicted is too disgusting to be dangerous as an example. -- The Court would nevertheless be justified in imposing upon you the imprisonment at hard labour, authorized by the law; but that punishment, although it would afford you an opportunity for reflection, would deprive you of the means of information, of which we sincerely and earnestly entreat you to avail yourself.

The judgment of the Court is that you pay the sum of 10l. for the use of the poor, being the full amount of the penalty, which the law authorizes, with the costs of prosecution.

(Hide most of the above.)

Michael Lorton writes:

According to my research, the oldest living Justice right now is John Paul Stevens. He was born in 1920, and at the time, the oldest living Justice was, of course, Oliver Wendell Holmes, Jr., born in 1841 when the oldest living Justice was Gabriel Duvall. Duvall was born in 1752! He was [23] years old when the Declaration of Independence was signed.

I had always assumed that this means something like "art can endure even after an artist's death," and others seem to take the same view. (I had considered and discarded "having a large arse is bad for your life expectancy.")

But my father reported to me that the original meaning of the quote -- apparently by Hippocrates, in Seneca's translation -- is something like "There's much to know, and little time to learn it," with "ars" meaning (more or less) skill. What's more, that appears to be at least a common modern meaning, rather than just a historical meaning long abandoned by modern users. And it's always dangerous to use phrases that have multiple meanings, unless the multiplicity of meaning is part of your goal.

Which three highest-selling authors — counting both during their lives and after — were at least partly black? Naturally, the definitions, both of best-selling and partly black, are necessarily vague. But I'm looking for people at least some of whose relatively recent ancestors were of the racial groups that we generally call "black," and that were known by many others and by themselves to be at least partly black. (My sense is that this is the normal American usage of the term; whether it's a good definition or not, that's the one I'm using here.)

For best-selling, I've looked at all the people noted throughout this Wikipedia page, though I'd certainly accept rival claims. I've deliberated focused on best-selling status to try to keep things as objective as possible, though naturally one can point to authors who were great and even successful who don't make this list for a variety of reasons). My view is that two of the people I have in mind have legitimate and broadly acknowledged claims to literary greatness and not just popularity, but that's of course subjective, as is the question whether their greatness materially exceeds that of, say, Maya Angelou or Wole Soyinka or many other candidates.

UPDATE: I originally just asked for "best-selling," but I meant to ask for the three highest-selling -- I don't just want popular authors, but extraordinarily popular ones. I corrected the post accordingly.

An interesting article from the Providence Journal. As a federal district court ruled in 1980, "[T]he amendments appear to have decriminalized the sexual act itself, even when undertaken for remuneration. Thus, it appears to the Court that § 11-34-5 now outlaws only certain preliminary or preparatory activities (securing, transporting, receiving into a house or conveyance, etc.), and then only when pecuniary gain is somehow involved.

Thanks to How Appealing for the pointer.

I'm delighted to report that Prof. Ken Anderson of the American University Washington College of Law is joining our merry band.

Ken specializes in the law of international human rights, of war and armed conflict, of terrorism, of nonprofit and charitable organizations, of philanthropy, of development finance and microcredit, and of international business and finance. He is a research fellow at the Hoover Institution, and was a former general counsel to George Soros' Open Society Institute as well as director of the Human Rights Watch Arms Division; and he's coming to us from the Opinio Juris blog, where he will also continue blogging. For links to many of his articles, see his SSRN page author.

For the fourth edition of my Academic Legal Writing book, I’d like to include an entire student-written article -- with comments (in the margins or in between paragraphs) on my part -- to use as a good example for readers. To be optimal, the article should be (1) very well-written, (2) very well-reasoned, (3) 40 law review pages or shorter (shorter would be better), (4) preferably on a topic that readers would find interesting, and (5) written when the author was still a student (though it need not have been denominated a student Note or Comment). I would also of course ask the author and (if necessary) the journal for permission to reprint and comment on the piece, and some of my comments will likely be a bit critical. But my goal is to find an article that’s so good that the criticisms will be very few, and most of the comments will be an explanation of why a particular paragraph or argument works well, not of why it doesn’t.

Can any of you recommend such an article that you have objectively reviewed, and that you think is excellent? Many thanks.

from June Kim of the UCLA Law Library, here. Many of the links to the databases are UCLA-only, but many other universities subscribe to the databases, too — if you're at a university, chances are that you can find the sources through your library, once you know what to look for.