Currently viewing the tag: "Challenging"

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Lakers Challenging Spurs For West's No. 1 Seed In NBA Playoffs
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That the San Antonio Spurs would earn the Western Conference's No. 1 seed seemed like such a foregone conclusion for such a long time that it was almost accepted as cast in bronze. As it turns out, the Los Angeles Lakers are just 2.5 games behind the
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Miriam Elder reacts to the public clash between Russia's ruling duo over Putin's "crusades" comment:

So: wow. Medvedev just totally slammed Putin. Undoubtedly, he was upset that his prime minister spoke first about the situation in Libya (these were the first comments from Putin and Medvedev since the military intervention began on Friday). At the turn of the year, Medvedev publicly criticized Putin for speaking out in the case of jailed oligarch Mikhail Khodorkovsky, but today’s criticism felt stronger and more clear cut. Their positions actually clash (and nicely show the two strands of thought inside Russia on relations with the West).

Some will argue this was their usual "good cop/bad cop" routine — one speaking to the domestic audience, one speaking to the outside world — but the ad hoc-iness of it all makes me suspicious about that.

Presidential elections in Russia are less than a year away and the rumor mill is going wild on who will run – Putin or Medvedev? Or some unknown dark horse? There’s talk that the clans around Putin and Medvedev are fighting between themselves to get their candidate out there. This could be the first sign that Medvedev wants to stay on. Or he was just afraid of looking bad. Either way, it’s interesting stuff (if for nothing more than seeing someone yell at Putin which, really, never happens).





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The Daily Dish | By Andrew Sullivan

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(Eugene Volokh)

United States v. Pruess (4th Cir. Mar. 14) (unpublished):

Before KING, DUNCAN, and KEENAN, Circuit Judges….

Gregory Roland Pruess pleaded guilty to possession of ammunition after having been convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g)(1) (2006). His guilty plea was conditioned on his retaining his right to appeal the district court’s denial of his motion to dismiss the indictment. The district court sentenced Pruess to twenty-one months of imprisonment and he now appeals. For the reasons that follow, we vacate the district court’s judgment and remand for further proceedings.

Pruess first argues that the conviction violated his rights under the Second and Fifth Amendments because his initial predicate felony conviction is invalid. However, we need not reach the constitutional question as we conclude that, regardless of whether his initial felony conviction was invalid or is invalidated, Pruess had several other felony convictions not based on his status as a felon at the time of the commission of the instant offense that qualify as predicate offenses under § 922(g)(1). Those offenses included convictions for dealing in firearms and explosives without a license and unlawful transport and possession of machineguns.

Pruess next argues that, after the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the prohibition in § 922(g)(1) on non-violent felons possessing firearms is unconstitutional as violative of the Second and Fifth Amendments. Again, we do not reach the constitutional question at this point. In United States v. Chester, 628 F.3d 673 (4th Cir. 2010), this court outlined a two-prong analysis to determine whether a regulation violates a defendant’s Second Amendment right to bear arms. A district court must first determine whether the right sought to be regulated is within the scope of the Second Amendment’s protection — that is “[i]n accordance with the historical understanding of the scope of the right … [whether the regulation extends to] weapons typically possessed by law-abiding citizens for lawful purposes.” Id. at 676 (internal quotation marks and citation omitted). If the district court finds that the right is protected by the Second Amendment, the court must then determine whether the regulation is valid under the appropriate means-end level of scrutiny. Id. at 678. In applying this prong of the analysis to a regulation that prohibits the possession of firearms by felons, a district court should apply intermediate scrutiny to determine whether “there is a reasonable fit between the challenged regulation and a substantial government objective.” Id. at 683 (internal quotation marks and citation omitted).

Here, the district court concluded, based on the statement in Heller that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” that § 922(g)(1) was not unconstitutional. See Heller, 554 U.S. at 571. However, as we have determined that a district court must conduct an analysis of a challenged regulation in light of Heller, we remand to the district court with instructions to make this determination in accordance with our decision in Chester. Accordingly, we vacate the district court’s judgment and remand for further proceedings consistent with this opinion….

I suspect that this felon will ultimately lose, and it’s possible that the district court will conclude, and that the Fourth Circuit will agree on further appeal, that all felons may be categorically barred from owning guns. But nearly all majority opinions dealing with the matter have read the dictum in Heller as categorically meaning that felons lack Second Amendment rights. This opinion at least leaves open the possibility that some nonviolent felons might be found to retain the right to keep and bear arms despite their felony, or regain it (as a matter of constitutional right, not just state-law decision) if they maintain a clean record for long enough after a nonviolent felony. That’s what the North Carolina Supreme Court held in Britt v. State; perhaps the Fourth Circuit is headed in the same direction.

For more on the Chester precedent, see here. Note that it probably doesn’t matter that this prosecution was for possession of ammunition alone; courts generally view the ban on felon possession of ammunition as interchangeable with the ban on felon possession of guns.




The Volokh Conspiracy

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The invitation from Bahrain’s Crown Prince to the Saudis and other Gulf states to help them put down a Shia revolt is a direct challenge to Iran’s claim to be protector of the Shias.
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In challenging East, Luol Deng quietly providing Bulls a boost
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By Mike Ehrmann, Getty Images Seven-year veteran Luol Deng doesn't get much of the spotlight playing with Derrick Rose and Co., but his presence on the Bulls can't be undervalued. By Mike Ehrmann, Getty Images Seven-year
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Washington (CNN) - A new poll suggests that Republican Sen. Orrin Hatch of Utah could have a tough road ahead of him as he makes a bid next year for a seventh term in office.

A survey by UtahPolicy.com indicates that 31 percent of likely voters there want the state’s senior senator to win re-election next year, with 54 percent saying they are ready for a new face, and 15 percent unsure.

According to the poll, Republican voters are split when it comes to a possible primary battle next year between Hatch and Rep. Jason Chaffetz, with each man grabbing 42 percent support and 15 percent undecided.

Last year conservatives and tea party groups targeted three-term Republican Sen. Bob Bennett in the months leading up Utah’s GOP convention. Bennett was defeated at the convention in his bid for his party’s re-nomination. Conservatives Mike Lee and Tim Bridgewater advanced to the party primary, with Lee winning the GOP nod and then the general election.

Hatch, who wants to avoid Bennett’s fate, has a history of reaching across the aisle to work with Democrats - a fact that obviously does not sit well with many tea party activists and other conservatives. But Hatch has taken steps since last year to buffer himself from criticism from those on the right by highlighting his conservative chops. He recently led the Senate GOP push for a balanced budget amendment and was a co-sponsor of a Republican amendment to repeal the new health care law. Two weeks ago he also landed a perfect score in the American Conservative Union’s 2010 ratings.

“At this point in time the numbers really don’t mean anything,” Hatch campaign manager Dave Hansen told CNN.

Hansen told CNN the results are not surprising, considering the anti-incumbent and anti-Washington mood of the last election cycle, but added that “we feel very good about where we are. We have our plan in place to help assure Sen. Hatch’s re-election next year.”

Chaffetz, a 43 year-old congressman who was re-elected last November to a second term, recently told the Deseret News that a run for the Senate is “a definite maybe,” and said he intends to make his decision before the autumn.

In response to the new poll, Chaffetz told the Salt Lake Tribune that the only results that matter will be next year’s GOP state convention, but added, “It is certainly flattering to be so seriously considered.”

The UtahPolicy.com poll was conducted February 16-19 by Opinionology, with 600 registered voters questioned by telephone. The survey’s overall sampling error is plus or minus 4.5 percentage points.

-Follow Paul Steinhauser on Twitter: @psteinhausercnn


CNN Political Ticker

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As NewsBusters reported Sunday, while George Soros likened Rupert Murdoch and Fox News to Nazis on CNN's "Fareed Zakaria GPS," the host never once challenged the far-left billionaire on any of his wild accusations.

On Monday's "O'Reilly Factor," former CBS Newsman Bernie Goldberg blasted "supposed journalist" Zakaria for sitting there "like a bump on a log when somebody is making crazy statements like that" (video follows with partial transcript and commentary):

BILL O'REILLY, HOST: Thanks for staying with us. I'm Bill O'Reilly,reporting tonight from Southern California.

And in the "Weekdays with Bernie" segment, far-left zealot George Soros,a billionaire who funds many radical left concerns, is very angry with FOX News.

(BEGIN VIDEO CLIP)

GEORGE SOROS, BILLIONAIRE: FOX News makes a habit. It has importe../../css/l__you_know__Newspeak__where_you_can_tell_the_people_falsehoods_and_deceive_them._And_you_wouldn__39_prxaezo2hitvjhqhy8sfni.css;t believe that an open society and a democracy these matters can succeed, but actually, they did succeed. They succeeded in Germany where the Weimar Republic collapsed, and you had the Nazi regime follow it.

(END VIDEO CLIP)

O'REILLY: Now, you may remember that a group of left-wing rabbis, the Jewish Funds for Justice group, took out a full-page ad in the Wall Street Journal recently, criticizing FOX News for referencing Nazi Germany. So, of course, we expect to see another ad from the rabbis shortly, hammering Soros.

Joining us now to react from Miami, the purveyor of BernardGoldberg.com, Mr. Goldberg.

Here's what I don't understand. Every once in a while Soros comes down from his plush board room, or his private jet lands near CNN headquarters; and he gets out, and he says this dopey stuff. Why? He is not changing anybody's mind, is he?

BERNIE GOLDBERG, FOX NEWS CONTRIBUTOR: No, I don't think that's what motivates him. I think he, honest to God, believes every syllable of what he said. I think if you hooked Mr. Soros up to a lie detector while he made that statement, I don't think the needle would dance one bit.

But I will tell you it takes two to tango, and he did that interview with a supposed journalist for CNN, a supposedly middle-of-the-road news organization, named Fareed Zakaria. And when he said those things, Zakaria didn't ask him one challenging question.

When Soros said that FOX is basically inherently dishonest, Zakaria didn't say, "Well, aside from your dispute with Mr. Beck, Glenn Beck, can you give me an example or two of this dishonest?"

When he made the insane statement that FOX's supposed dishonesty might open the way for an American fascist dictatorship — I mean, think about that — Zakaria never said, "Really? Really, Mr. Soros?"

So Soros says these things because he believes them. He's a man of the left. We shouldn't expect anything different. But Zakaria is supposedly a journalist, and a journalist doesn't just sit there like a bump on a log when somebody is making crazy statements like that.

Indeed. As I noted concerning this interview Sunday:

Rupert Murdoch is like a Nazi using his media outlet Fox News to "tell the people falsehoods and deceive them." And Zakaria sat there eating it up like a sheep.

Clearly enjoying the conservative bashing, the CNN host moved in another predictable direction asking his guest, "What do you think of this broader movement of the Tea Party, of — of what's going on on the right?"

Honestly, what did Zakaria think Soros was going to say?

SOROS: Look, I think the people in the Tea Party are very decent people, hard-working. They've been hit by a force that — that comes from somewhere which they can't fully understand, and — and they are being misled. And they are misled by people who are using it for their selfish purposes, namely to remove regulations and — and reduce taxation. So reduce taxation and regulation, and they are being used and deceived.

So the Tea Partiers are all idiots being misled into thinking loosened regulations and lower taxes are bad. Meanwhile, Soros funds organizations dishonestly trying to convince people that more regulations and higher taxes are good.

Not surprisingly, Zakaria missed both the hypocrisy and the irony.

I guess that makes him easily deceived and misled.

At the end of Goldberg's discussion about Soros, the subject of the Wisconsin union battle was raised:

O'REILLY: Now, "Talking Points Memo," I think we laid out a pretty persuasive case based on facts, not emotion, that the news coverage of the Wisconsin battle has not been honest.

GOLDBERG: Right. Well, let me give you a couple of examples to back that up.

First, do you remember during the tea party demonstrations there were lots of references to the crowds as being overwhelmingly white. I was never quite sure what the relevance of that was. But the New York Times, for example, thought it was relevant, because they would write stuff like that.

These crowds are beyond overwhelmingly white. These crowds are almost 100 percent white. And there's no reference to race. Jeez, isn't that strange?

The reason is the mainstream media or so-called mainstream media only brings race into things when conservatives are involved and they want to smear them. So, that's one thing.

Excellent point. This was a common media meme about the Tea Party since it emerged as a powerful force in April 2009. Yet I don't recall any so-called journalists in the past few days talking about the lack of minorities in the crowd at Madison's Capitol.

But that wasn't the only thing bothering Goldberg about the Wisconsin coverage:

GOLDBERG: The second one, the easy second one are the signs. One crazy person at a Tea Party rally with a Nazi sign and it's big news.

O'REILLY: Right.

GOLDBERG: The media isn't as passionate about these signs that compare the governor to Hitler, Mubarak, and the Taliban. Not nearly as passionate in covering them.

No, they certainly aren't, proving once again how totally corrupt they are.

(H/T Mediaite)

NewsBusters.org - Exposing Liberal Media Bias

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This video image broadcast on Libyan state television Sunday Feb. 20, 2011 shows Al-Bayda local council building on fire in Libya’s third biggest city Al-Bayda, on Sunday after days of bloody protests against the government of ruler Moammar Gadhafi. (AP Photo/Libyan state television) TV OUT

Gov. Walker has made a career out of challenging union power.

The open question is which side will blink first.

Solidarity protests spread beyond Wisconsin.

Pawlenty comes to Walker’s defense.

Mitch Daniels’ wife is still not sure about embarking on a national campaign.

Ann Romney, on the other hand, is itching to hit the campaign trail.

Mideast unrest spreads to Libya.

Valerie Jarrett emerges as a W.H. power center.

Obama not invited to British royal wedding.

How to predict crime.

And now you can try gerrymandering Iowa.





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Ben Smith’s Blog

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While politicians are still talking about restoring civility, liberal thugs are waging an all out attack on the website of David Rivkin, lead counsel in the multi-state lawsuit against Obamacare, rather than engage in a civilized debate that they can’t win.  And what do the ACLU and other left-leaning civil rights groups have to say about these attempts to silence a leading voice for freedom and liberty? Not a thing.

Rivkin represents 26 States, the National Federation of Independent Business, and two individuals in the most prominent and successful challenge to Obamacare.  He’s been a prominent critic of the law’s individual mandate from the beginning, and is used to engaging in intellectual battle—it comes with the territory.  But this is something far different.

One week after federal district judge Roger Vinson held that the mandate was unconstitutional and struck down the entire law, Rivkin’s website came under attack by a highly organized group of cyber-terrorists seeking to silence him and knock his views off the Internet.

Just like the recent attacks by Wikileaks supporters on Amazon.com, MasterCard, and PayPal—attacks that have led to international investigations that remain ongoing and several arrests—unknown hacktivists from IP addresses located overseas took aim at Rivkin’s website, bombarding it with fake traffic and intrusion attempts.  They managed to destroy entire sections of the site dedicated to his advocacy on behalf of the states in the health care law suit.

The ongoing criminal attacks have been reported to the Federal Bureau of Investigation, which is charged with investigating denial of service cyber attacks.

Perhaps the most amazing aspect of this episode is the complete disregard of this attack by the mainstream media and left-wing civil liberties groups.  Imagine, for example, a similar attack on the website of the plaintiffs in the challenge to California’s Proposition 8, which struck down same-sex marriage in the state.  Imagine the outrage, finger-pointing, and howls of indignation that would follow.  The media, as well as the ACLU and others, would be quick to condemn conservatives, and many prominent conservatives, no doubt, would disassociate themselves from the cyber-attack.  And rightly so—conservatives don’t need to cheat or break the law to win the war of ideas.

Rivkin’s sober and scholarly advocacy in favor of Americans’ fundamental rights is clearly a threat to someone, and they have decided to attack him for it.  Even on the Internet, thugs shouldn’t get a “heckler’s veto” over speech with which they disagree.  One would think that’s a point on which conservatives and left-leaning civil libertarians could agree.  But all we’ve heard so far from the left is silence.

The Foundry: Conservative Policy News.

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A lawsuit filed by the Lt. Governor of Mississippi and others has been dismissed by a Federal District Court Judge, but there was no ruling on the merits:

WASHINGTON, Feb. 3 (UPI) — A federal judge in Mississippi Thursday dismissed a lawsuit challenging the constitutionality of the U.S. healthcare reform law enacted in 2010.

Judge Keith Starrett of the U.S. District Court Southern District of Mississippi in Hattiesburg found state Lt. Gov. Phil Bryant and others who filed a lawsuit challenging the constitutionality of the Patient Protection Affordable Care Act, did not have standing to file the suit. Starrett, told plaintiffs they could file an amended suit with 30 days, the Hattiesburg American reported.

It’s possible that the Amended Complaint could pass muster, but not likely given Starett’s opinion, which is reproduced below. The standing issue is one that previous lawsuits have managed to pass successfully, however there’s still the possibility that one or more of them could end up getting dismissed on appeal if the Circuit Court of Appeals finds a lack of standing to appeal.

Here’s the opinion:

Bryant v. Holder et al




Outside the Beltway

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Some 25 years ago today, a knuckle-headed elementary school Zandar was watching the launch of the shuttle Challenger, just like every other schoolkid in the country.  Hey, we were going to get lessons from a teacher in space.  How awesome was that going to be?

Turns out it was awesome, but in the literal sense.

Seventy-three seconds.

That’s how long NASA’s space shuttle Challenger was in the air before an O-ring failure turned a routine mission into space into a tragedy on January 28, 1986.

Twenty-five years after NASA’s first fatal in-flight accident, the memory of the Challenger disaster is still strong.


CNN’s John Zarrella was at Kennedy Space Center to cover the launch - the first from NASA’s new launchpad 39B. “I just remember seeing the cloud of smoke and what looked like fireworks coming out from the vehicle,” says Zarrella. “We were all just looking at each other wondering ‘OK, what’s happened here?’”

CNN, still in its early years, was the only network to carry the launch live that Tuesday. Among those tuning in were children in classrooms across the country, watching what was to be a milestone: Christa McAuliffe, the program’s first teacher in space, lifted off as a member of the crew.

And we watched it live, and we all looked at each other, and asked the teacher what happened, and she shushed us, because she didn’t know either.  None of us did.  I remember watching the booster rockets fork off in a V, going in different directions, and the thing cracked up.

And they were gone, the whole crew.  Just like that.  That was my first introduction to the concept that really, really bad things happen to really nice people, and there’s not anything you can do about it.  Sometimes, things just go horribly wrong in life and people don’t come home again.  Ever.

Yeah, by February we were all fine, cracking really bad jokes about the accident (“No, I said BUD LIGHT!”) and dreading Valentine’s Day.

But I remember my mom asking me if I was okay when I came home from school, and I said that I was okay, and I did my homework and ate dinner, and I remember thinking “Well, I guess there is a reason bad things happen” but for the life of me I still haven’t quite figured out why that is.  Anybody in my generation, that was the event you remembered from school, you remember seeing it unfold live on TV and the entire country going…”Crap.”

Now, 25 years later, I’m reminded the space shuttle program is all but over.  We thought it was over back then, too.  Life goes on.

But you remember that for some, life doesn’t go on.


Zandar Versus The Stupid

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(Eugene Volokh)

So reports the Daily Caller; I got a copy of the complaint, and I see that the student is suing both based under the Second Amendment and under the Idaho Constitution. The Idaho Constitution has long been interpreting as securing an individual right to keep and bear arms in self-defense, including to carry guns in public (though not necessarily concealed); Idaho might likewise be willing to interpret it broadly even when it comes to possession in government-owned housing, perhaps more broadly than federal courts might interpret the Second Amendment.

I think the student (Aaron Tribble) might well have a strong case, though not open and shut, as you can see from some of the citations in this excerpt from my Implementing the Right to Keep and Bear Arms in Self-Defense article (footnotes noted using curly braces):

Some government-run housing projects impose lease conditions barring tenants from possessing any guns in their apartments. {See, e.g., Doe v. Portland Hous. Auth., 656 A.2d 1200, 1201 (Me. 1995) (holding such a lease condition to be preempted by state firearms law); Stipulation Re Settlement, Doe v. S.F. Hous. Auth., No. 3:08-cv-03112-THE (N.D. Cal. June 27, 2008) (agreeing to eliminate such a lease condition); Richmond Tenants Org., Inc., v. Richmond Redevelopment & Hous. Auth., 751 F. Supp. 1204 (E.D. Va. 1990) (upholding such a lease condition against a statutory challenge, but not considering the Virginia Constitution’s right to bear arms), aff’d, 947 F.2d 942, 1991 WL 230214 (4th Cir. 1991) (unpublished); Tex. Op. Att’y Gen. DM-71 (1991) (concluding such a lease condition is barred by state law).}

Illinois allows firearms in public housing, but bans stun guns. Aurora (Illinois) bans possession in public housing of firearms, stun guns, and even pepper spray. Louisiana and Lincoln (Nebraska) domestic violence shelters ban both guns and stun guns. Guns are also banned on other government property, including places where the risk of crime may be quite substantial, such as government-owned parks (both city parks and national parks). How much extra power should the government’s role as proprietor give it in such situations? How much extra power should the government’s role as proprietor give it in such situations? {See Mich. Coal. for Responsible Gun Owners v. City of Ferndale, 662 N.W.2d 864, 871 (Mich. Ct. App. 2003) (suggesting that the government might be able to “create gun-free zones,” in case involving ban on possession in city buildings, but not definitively reaching the constitutional question because it found the ordinance was preempted); Tenn. Op. Att’y Gen. No. 04–020, at *2 (2004) (concluding that “the State has authority to prohibit or regulate the possession and use of firearms on property that it owns”).}

I don’t know what the right answer is, but I can point to two wrong or at least incomplete answers. The first comes from a 2004 [Michigan] unpublished appellate decision that used a danger reduction rationale to uphold a ban on gun possession in public housing projects:

While the right to possess arms is acknowledged within the Michigan Constitution, this right is subject to limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms is not absolute. This Court has determined that “the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power.” The state has a legitimate interest in limiting access to weapons.

It is recognized that public housing authorities have a legitimate interest in maintaining a safe environment for their tenants. Infringements on legitimate rights of tenants can be justified by regulations imposed to serve compelling state interests which cannot be achieved through less restrictive means. Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. This is particularly true given defendant’s failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff’s complex necessitating her possession of a weapon to defend herself.

This can’t be a sound argument, because it doesn’t explain why public housing projects are any different from private housing, where the right to keep and bear arms is indeed protected under the Michigan Constitution [and the Second Amendment]. After all, the right to bear arms is constitutionally protected even though the government has a legitimate interest in “maintaining a safe environment” for everyone, and there are few “environment[s] and circumstances” in which guns lose their dangerousness.

{The same criticism applies to the Maine Superior Court’s conclusion that a ban on gun possession in public housing is constitutional. Doe v. Portland Hous. Auth., No. CV-92–1408, 1993 Me. Super. LEXIS 359 (Me. Super. Ct. Dec. 29, 1993), rev’d on statutory grounds, 656 A.2d 1200 (Me. 1995). There too the court’s reasoning would have equally upheld gun prohibitions imposed even on private property (not just government-owned property), though perhaps limited to dangerous apartment buildings: The court reasoned that the ban was a “reasonable … regulation” given that (1) the housing complexes “have unique tendencies for violence and even criminal behavior that specially threaten the health, safety and welfare of the residents,” stemming from “the congregate closeness of the living arrangements and the resulting relationships among the residents[, which] tend to generate an atmosphere of volatility,” and (2) the special complexes for “senior citizens and the disabled” house many people who have “mental or emotional problems” which leads “to assault, vandalism, rowdyism and similar disturbances.” Id. at *19, 21–22. But it’s hard to see how the Maine Constitution’s expressly individual right to bear arms could rightfully be denied to non-criminal, non-mentally-ill people simply because they have the poor fortune to live around dangerous people — precisely the scenario where the right to bear arms is most useful to a law-abiding citizen.

Certain kinds of guns and ammunition may be especially dangerous in apartment buildings, whether publicly or privately owned, because the apartments are separated by only a single wall; this increases the risk that a bullet would injure or kill a neighbor. But this concern has never been seen as justifying total bans on all gun possession in all apartment buildings. And it would in any case not justify bans on shotguns, which fire small pellets that are highly unlikely to go through a wall or retain their lethality even if they do. Likewise, it wouldn’t justify bans on handguns that are loaded with special frangible ammunition, which is designed to similarly not go through walls.}

The second wrong (or at least incomplete) approach comes from the Oregon Attorney General’s opinion that a ban on gun possession in public housing would be unconstitutional:

It is well settled that the government may not condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. The United States Supreme Court has repeatedly upheld that principle under the United States Constitution….

… Although the Oregon Supreme Court has not ruled on the issue directly, from [various state court] authorities we believe that, if faced squarely with the question, the court would hold that this “unconstitutional condition” principle applies under the Oregon Constitution….

Eligibility for low-income housing provided by a housing authority plainly is a public benefit or privilege. Subject to certain federal limitations, a housing authority lawfully may condition eligibility for low-income housing on satisfaction of income criteria and other factors designed to ensure that only responsible tenants reside in that housing. However, we conclude that a housing authority may not require an otherwise-eligible individual to surrender rights under article I, section 27 in order to obtain low-income housing. {46 Or. Op. Att’y Gen. 122, 127–28 (1988); see also Ark. Op. Att’y Gen. No. 94–093 (1994) (expressing uncertainty about whether a ban on firearms in public housing would be unconstitutional).}

The problem here is that, though all the cases cited by the Oregon Attorney General indeed rejected government demands that someone waive a constitutional right to get a benefit, many other cases uphold such demands. A plea bargain may be conditioned on a waiver of the right to trial. Welfare benefits, or membership on a high school sports team, may be conditioned on a waiver of some parts of the recipient’s rights to be free from searches without probable cause. A government paycheck may be conditioned on a promise not to reveal certain things the employee learns in confidence.

More broadly, the government may sometimes refuse to allow the exercise of constitutional rights on its property, especially setting aside traditionally open places such as parks and sidewalks. It could, for instance, insist that abortions not be performed in government-owned hospitals. It could bar a wide range of speech in government buildings.

Public housing might be treated specially, because it is a home as well as a government building, or because it is the sort of government benefit that is unusually important to those who use it. This has been the view of cases striking down at least certain kinds of speech restrictions and search and seizure policies in public housing. {E.g., Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (striking down ban on posting material on the outside of one’s public housing apartment door); Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that warrantless searches for guns in public housing units are likely unconstitutional, and silently assuming that the Fourth Amendment rules are the same in publicly owned housing as they are in other homes).} But still, while the Oregon Attorney General probably reached the right result in concluding that public housing authorities can’t require their tenants to surrender the right to bear arms, the unconstitutional conditions analysis in that opinion too categorically rejects the government-as-landlord claim, just as the Michigan opinion quoted above too categorically rejects the constitutional right claim.

It’s not clear to me how other public property should be treated: Should the government be allowed to ban guns on government-owned recreational land, whether a city park or a national park, either by insisting that people who want to use the land must waive their right to bear arms, or by otherwise concluding that there is no right to bear arms in such places? As a condition of going onto a public university campus, which might have a considerable amount of open space and parking areas where crime is not uncommon?

In public university dorm rooms, where one state attorney general’s opinion suggests gun possession is constitutionally protected? {See La. Op. Att’y Gen. No. 94–131 (1994) (suggesting that Second Amendment protects university student’s right to possess guns in dorm rooms).} As a condition of going onto a public primary or secondary school campus, or into a government office building, especially when this requires walking unarmed through a potentially dangerous parking structure? Courts need to work out a government-as-proprietor doctrine for the right to bear arms much as they have done for the freedom of speech.

Of course, even setting aside the merits, what a fun extracurricular project for a law student!




The Volokh Conspiracy

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(Ilya Somin)

Six additional states just joined the Florida-led lawsuit challenging the constitutionality of the health care bill enacted last year, bringing the total number of states taking part in that suit to 26:

The political sea change marked by the November elections on Tuesday pulled six more states into Florida’s lawsuit challenging the national health care legislation, making it one of the biggest tests of federal authority in the country’s history with 26 states now in line.

On the same day the U.S. House of Representatives began debating repeal of the law, Florida Attorney General Pam Bondi filed a motion in Pensacola federal court adding Iowa, Ohio, Kansas, Wyoming, Wisconsin and Maine to the list of plaintiffs.

Counting the separate lawsuits filed by Virginia and (in the near future) Oklahoma, there is now a total of 28 states suing the federal government over this issue. I recently discussed the legal and political implications of the states’ stance here.




The Volokh Conspiracy

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(Ilya Somin)

The state of Kansas recently asked to join the lawsuit challenging the constitutionality of the Obama health care plan filed by 20 state governments and the National Federation of Independent Business. Ohio, Wisconsin, and Wyoming are also seeking to join the multistate lawsuit, while Virginia and Oklahoma have filed separate challenges to the law. That brings the total number of state governments litigating against the plan to twenty-six. We now have a historically unprecedented situation where a majority of state governments are challenging the constitutionality of a major recently passed federal law. In our two hundred year history of constitutional litigation, that has never happened before.

Legally speaking, it doesn’t matter whether the number of states challenging the law is twenty-six or two. Indeed, it should not even matter whether any states oppose the law at all, so long as there is at least one private plaintiff with standing (and there are in fact many such). The arguments for and against the law will be the same.

But in politically sensitive cases such as this one, legal arguments are not the only factors that matter. The Supreme Court is usually reluctant to strike down a major federal law that has strong support from the president and his party and is a big part of their political agenda. In this case, however, the law in question is unpopular with the general public. And the states’ action is an indication that it is also disliked by a large part of the political elite. Widespread popular and elite opposition gives the Court the political cover that it would need to strike down the law. If the political winds continue to blow against the law, the justices can be confident that a decision to strike it down won’t create a dangerous political backlash against the Court.

To be clear, I do not believe that the Court will strike down the law merely because it is unpopular or because the majority of state governments oppose it. But the law’s unpopularity does ensure that the justices probably won’t hesitate to invalidate it for fear of a political backlash, if they are already inclined to do so for other reasons.




The Volokh Conspiracy

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