Virginia Gun-Quake Continues: Dems abandon plans for assault weapons ban (Constitution news round-up)
2A: Virginia gun-quake leaves Dems quaking in their boots; they abandon plans to introduce assault weapons ban
2A: Virginia sheriff threatens to deputize thousands of citizens to get around any gun-control measures the new Democrat legislature might pass
2A: West Virginia lawmaker introduces bill to hold gun-free zones legally liable for shooting injuries
2A: use of ghost gun in teen shooting in California shows the futility of gun control: #WhackAMole
2A: What restrictions of free speech would you tolerate? - Extreme Risk Protective Order for free speech? One book a month? Banned books for dangerous individuals? Banning "assault magazines" with more than 10 pages? Got the point yet?
Free Expression: Singapore slaps ‘fake news’ label on posts of government critic under rubric of combatting false information online. #CarefulWhatYouWishFor
1A: Supreme Court agrees to hear challenge to Delaware law requiring political balance of the major parties on its courts; small parties object
1A: Minnesota woman files suit after being threatened with harassment prosecution for filming zoning violations at her neighborhood mosque
1A: religious freedom group appeals U.S. military’s decision to ban religious dog tags
1A: Christian school in Maryland contests exclusion from state school choice program because of its traditional beliefs on marriage despite no actual discrimination on basis of sexual orientation
1A Religion: judge cites Religious Freedom Restoration Act in acquitting activist who leaves water for illegal migrants in wilderness areas
4A: sister had no authority to consent to a search of her brother’s garbage bags inside her storage unit; evidence (fentanyl) excluded and conviction vacated (1st Circuit)
4A / Due Process: is it reasonable to toss personal items when taking down homeless encampments? 9th Circuit says a class action is not the way to find out.
8A: Supreme Court upholds suspension of federal executions pending litigation in lower courts
Unenumerated Rights - protect through substantive due process or the Privileges or Immunities clause?
note this in 9A doc to read
9A: Go from zero to sixty on the Ninth Amendment and unenumerated rights in one short article
1A/Discrimination: deceptively named Equality / Fairness for All Act “expands government power to dictate how individual Americans should think, speak, and act”; free speech and conscience rights threatened in healthcare, public square, school sports, and elsewhere.
14A: Well, this had to happen eventually - lawsuit claims SAT and ACT college admission tests discriminate on the basis of race and wealth
Commerce Clause: federal judge affirms California’s right to dictate meat-production techniques to the other 49 states (‘comply with our rules or don’t sell here’)
Kudos! to the U.S. Constitution Scholarship Foundation in Florida for holding free after-school classes on the Constitution to remedy the deficiencies in today’s STEM-heavy high school curriculum
Hamilton on impeachment (Federalist Papers #65) - “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
Understand Clarence Thomas’ jurisprudence and you will understand a lot about the original intent of the Constitution.
In Thomas’ view, the Constitution is as current today as it was when it was drafted in 1787. It is the blueprint for our self-governing Republic where the People are sovereign, not subjects to be ruled.
If the Founders had wanted a ‘living, breathing Constitution’, they could simply have copied the British who don’t have a written constitution, Thomas has said. But the Founders chose to have a written Constitution and it was understood at the time that its meaning would not change, except through amendment.
Thus, the Founders’ design was ‘perfictible’, as Thomas has put it. This was illustrated by the Civil War amendments that secured the blessings of liberty for former slaves and their progeny.
Thomas believes the modern Supreme Court and the other branches of government have deformed the Constitution. He has taken it as his mission to remedy the situation. Thus, he views stare decisis - the doctrine that judges should follow precedent - as being applicable to the lower courts. But Supreme Court Justices must be faithful to the Constitution, not prior cases which should be overturned if they have deviated from our founding documents.
This makes Thomas often a minority of one on the Court, but his model is Justice Harlan’s solitary dissent in Plessy v. Ferguson, one of the worst decisions the Supreme Court has ever handed down. The Plessy Court ruled that ‘separate but equal’ satisfied the 14th Amendment’s Equal Protection clause, but Harlan’s dissent eviscerated this view and he eventually prevailed. Like Harlan, Thomas is leaving a road map for future Justices - in Thomas’ case, to return to the Founders’ original design.
To give one example, the Supreme Court struck down Chicago’s ban on owning handguns in the 2010 McDonald case on the grounds it violated the Second Amendment as applied to the states through the judicially-created ‘substantive due process’ doctrine under the 14th Amendment. Thomas agreed the ban should have been struck down but would have done so on the grounds that the Second Amendment is one of the liberties secured to U.S. citizens against the states by the Privileges or Immunities clause of the 14th Amendment. Thomas views ‘substantive due process’ as made up from whole cloth and as having the unfortunate consequence of letting the Supreme Court create new rights willy-nilly out of thin air. The Court has done on more than one occasion, such as the fundamental federal right to abortion created in Roe v. Wade. The Privileges or Immunities of U.S. citizenship, on the other hand, are relatively more circumscribed and much less subject to judicial mischief. Thomas would like to see previous erroneous Supreme Court rulings overturned, substantive due process scrapped, and the Supreme Court getting back to the original text of the Constitution.
Likewise, Thomas views the Supreme Court’s yielding to the New Deal and the consequent expansion of the Commerce Clause and the rise of the administrative state as additional judicial wrong turns that need to be corrected. Those wrong turns have given rise to any number of absurdities like the Montana rancher who dug two ponds on his own land and was imprisoned for supposedly polluting the navigable waterways of the United States.
Previous Constitution Minutes have pointed out instances where we are worse off by straying from the Founders’ design - for example, the ill-advised War Powers Act and the turning of the First Amendment proscription against the establishment of an official religion into a quagmire of hard-to-understand distinctions about what constitutes an endorsement of religion and what does not. All originalists owe a debt of gratitude to Justice Thomas for standing for First Principles even when it means standing alone.
Gun-Quake in Virginia! 20+ Locales Declare Second Amendment Sanctuaries (Constitution news round-up)
Gun-Quake in Virginia! - 23 locales declare Second Amendment sanctuaries after blue wave election; more expected
2A: less to gun sanctuaries than meets the eye; symbolic resolutions that don’t have any teeth and won’t stop enforcement of state or federal gun laws
2A: “Olympic Venezuelan Shooter: Banning Guns Is the First Step of Socialism”
Separation of Powers: Financially-interested refugee resettlement agencies sue Trump administration over executive order empowering locales to decline refugees; argue statute only provides for consultation
1A: No, the n-word is not “obscenity”. Federal judge allows lawsuit by student barred from graduation ceremony for prior use of the word.
Free Expression: Merkel’s Muddle - ‘we have to curb free speech or society will no longer be free.’ Huh? Sure, and work is freedom - Sieg Heil!
4A: Fourth Circuit upholds conviction of sex trafficker whose electronic devices were seized and searched on re-entry through JFK airport; evidence fails ‘border search’ exception but come in under ‘good faith’ exception
5A Due Process: authorities did not interfere with terror suspect’s right to travel when they subjected him to advance screening, prolonged questioning, and multiple searches (5th Circuit)
5A Eminent Domain: legal foundation takes up case where police destroyed house in course of an arrest and denied property owner compensation
10A: feds object to restrictions on ICE arrests at state courthouses
14A Equal Protection - second challenge filed to California’s gender quota law forcing companies to put women on their boards of directors
Discrimination: Texas arrangement to allow death row inmates access to state-employed spiritual advisors just prior to execution discriminates against Buddhists because the state doesn’t employ a Buddhist advisor (5th Circuit).
Electoral College: “California Dems Flood Colorado With Cash Ahead of National Popular Vote Referendum”
Antifederalists prescient in foreseeing runaway Supreme Court and unchecked expansion of federal power through innocuous language like the ‘general welfare’ and ‘necessary and proper’ clauses
Panel discusses the 3 co-equal branches and separation of powers - executive privilege v. congressional oversight, and what should courts decide
Shame on Mayor Pete for joining the Reconquista! You’re running for President of these United States and you’re pandering to people who don’t want there to be a United States? Good grief! #NotMyPresident
Kudos to Melania Trump for defending the right of Baltimore teens to boo her
Separation of Powers - federal judge Oregon blocks Trump administration rule requiring immigrants to show proof of health insurance before being allowed to enter the country; Congress did not delegate such power, judge rules
First Amendment issues likely to propel David Daleiden’s Planned Parenthood undercover sting video case to the Supreme Court
1A Conscience: “California Supreme Court: Catholics Must Insure Abortions on Demand Because They Are ‘Medically Necessary’”
Equal Protection, etc. - Utah woman charged with lewdness for going topless in front of her children in her own home; husband “similarly clad” but not charged
1A: law professor’s video series on free speech continues with the rules pertaining to government property
Shame on the grandiose FBI employees who exchanged messages about how they had ‘never liked the Republic’ and had ‘initiated its destruction.’ Shame on you - the Republic gave you your salary - GIVE IT BACK! I’ll take the Republic over you juvenile impudent putzes any day.
Kudos to everyone who made noise - “GVSU student government reinstates Pledge of Allegiance after backlash from students, parents, donors”
Earlier this month, Attorney General William Barr gave a thoughtful and important speech on the nature of the executive power and the separation of powers under the Constitution. He opened by saying the Democrats’ unrelenting resistance to the legitimacy of the Trump presidency undermines the Rule of Law. But he mostly talked about how the legislative and judicial branches have improperly chipped away at the power of the executive branch in recent decades.
The current Congress has abused its advice and consent power by opposing every single one of Trump’s appointments. There have been 236 cloture votes so far to unblock Trump’s nominees, compared to just 17 in all of Obama’s presidency. Congress has also abused its oversight role, unleashing an avalanche of subpoenas to incapacitate the executive branch. There was a time when Congress respected the executive’s need to hold confidential internal discussions, but Congress now calls assertions of executive privilege obstruction of justice subject to congressional contempt.
The judiciary has also encroached on the Trump presidency by setting itself up as the ultimate arbiter of separation of powers questions between the legislative and the executive, instead of leaving such questions to the political process. Judges have also usurped presidential authority by expanding the scope of judicial review and substituting their own judgment in place of the executive’s in foreign policy and national security matters like the travel ban. Finally, federal district judges have stymied the executive like never before with nationwide injunctions. There have been 40 since Trump was elected, compared to just two in the first two years of Obama’s presidency.
Bottom line, Barr said, is the Left is “engaged in the systematic shredding of norms and the undermining of the Rule of Law.”
The Founders carefully calibrated the executive power and intended for the executive to be independent, not subordinate to Congress. They drew up a Constitution with three co-equal branches and an executive strong and decisive enough to deal with national emergencies and the prosecution of war. They saw how the Articles of Confederation’s deficiencies in this regard almost caused us to lose the Revolutionary War. They put the Article II executive power in the hands of a single person, not a deliberative council. This is called the “unitary executive” and, while the Left may consider it merely a theory, it is nothing more than exactly what the Constitution says.
There is more - a lot more - in Barr’s speech and I commend it to you in its entirety. It’s well worth your time.
[Prepared Text] [Video]
It’s now legal to carry a handgun without a permit in Oklahoma. The law passed in February and took effect November 1st after court challenges failed. Most Oklahomans 21 and over can now carry firearms - concealed or openly - without a background check or training. There are exceptions for illegal aliens and certain criminal convictions, as well as for public buildings, bars, sporting events, and other venues.
Twenty states have some form of constitutional carry. Constitutional carry was the law in all states until the 19th century. The situation reversed by the 20th century when all states, except Vermont, passed concealed carry bans and most states required citizens to get a permit. For this reason, permitless carry is sometimes called ‘Vermont carry’.
It’s no accident that Vermont is the safest state in the country in terms of violent crime statistics. Funny how that works. But don’t expect facts and logic to make a dent on the Left.
It would be better to call it ‘natural rights carry’. If you have to ask permission or get government approval, it’s not really a right, is it? Carry without a permit makes perfect sense when viewed through the lens of natural rights. Rights are not something the government gives you. As an American, you are born with unalienable rights, just like the Declaration of Independence says. Some say these rights come from nature, and call them ‘natural rights’. Others say they come from God, and call them ‘God-given rights’. The point is, YOUR RIGHTS DON’T COME FROM GOVERNMENT, or even the Constitution.
To those who find it strange that U.S. citizens should not have to ask government for permission to own a gun, I ask is it any more strange than free speech or freedom from search and seizure without a warrant based on probable cause? I’ll tell you what would be strange - having to get a license from the government before exercising any of your free speech rights, or paying government a fee to be free from unreasonable search and seizure. THAT would be strange.
Four more states are considering permitless carry. Good! We could use a little more natural rights theory around here. And a little less authoritarianism from the Left, okay Beto? Then I wouldn’t feel like such a target when I have to go to the DMV, a gun-free zone here in my state of Virginia.
8A Cruel and Unusual - federal judge halts federal executions; DOJ had mandated certain lethal injection but federal statute requires feds follow state method
1A: ACLU sues Trump administration for detaining and interrogating journalists at the southern border about caravans
Separation of Powers: Supreme Court temporarily blocks release of Trump tax returns to Congress pending further argument
Supremacy Clause - Trump asks Supreme Court in tax return case to recognize his “absolute immunity” from state prosecution and investigation while he is in office
Due Process, Equal Protection: federal judge rules no-fly list does not offend right to travel or constitute intentional discrimination against Muslims
1A: third federal judge rules against Trump administration healthcare provider conscience protection rules
Discrimination: affirmative action referendum goes down in flames in Washington state; would have allowed the use of minority status as a factor in public education and hiring
2A: another Virginia county joins stampede to set up gun sanctuary jurisdictions in preemptive strike against far-left Governor Northam and incoming Democratic majority
1A Religion: far-left Michigan Attorney General loses in court again in gay adoption case; court finds her hostile to religion
Executive Power: William Barr speech says Democrat unrelenting resistance to legitimacy of Trump presidency undermines the rule of law; extols theory of ‘unitary executive’ whereby all executive power is invested in the President
Impeachment Raising Constitutional Issues - Sixth Amendment right to counsel for the President? Secret ballot for Senate impeachment trial?
2A: Supreme Court turns away Remington’s appeal to block product liability suit arising from Sandy Hook massacre; further proceedings to turn on whether the gun maker marketed the product for assaults against humans
1A: just because the Janus decision says you can’t be forced to pay union dues doesn’t mean you get to claw back what you paid the union in the past; unions relied in good faith on legal precedent when they collected the fees (7th Circuit)
1A: state cannot require someone to register as a lobbyist to speak to legislators where “no one pays him and his activities do not involve spending money” (8th Circuit)
1A: Kansas enters consent judgment agreeing that statute forbidding the advertising of raw milk violates free speech
1A: Authoritarian Obama State Department official trashes free speech, calls for hate speech laws to prohibit burning the Quran. So, you can burn the flag but not the Quran - glad we got that settled.
1A: “If government is the arbiter of what is acceptable speech, you are on the road to a dystopian nightmare.”
2A: AR-15 perfect for women for home defense, female gun owners say
4A: federal judge rules indiscriminate search and seizure of smartphones and laptops of travelers at U.S. borders violates Fourth Amendment
4A: no expectation of privacy in unauthorized use of neighbor’s home network; child pornography conviction stands
Electoral College: ‘Save Our States’ group building support for the electoral college
Electoral College: “‘Popular Vote’ Movement Would Shift Power to Big Cities, Experts Warn”
‘A’ for Effort - man dies, is revived, claims he has served his life sentence
In February, I told you about a Supreme Court case where the state of Indiana moved for the civil asset forfeiture of a drug dealer’s $42,000 Land Rover SUV. The drug dealer bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The $42,000 purchase price was roughly four times the maximum allowable fine for the offense. The Supreme Court found the forfeiture disproportionate to the crime and sent the case back to the Indiana Supreme Court to reconsider the matter in light of the 8th Amendment’s prohibition against excessive fines. The Supreme Court applied the Excessive Fines Clause to the states for the very first time in this case through the Due Process clause of the 14th Amendment.
At the end of October, the Indiana Supreme Court rejected the prosecution’s argument that any property used in a crime is subject to seizure. Instead, the court ruled a number of factors must be taken into account in deciding whether a forfeiture is ‘excessive’ within the meaning of the 8th Amendment. The factors include the owner’s guilt and the extent of the misconduct, but also the owner’s financial circumstances. The court wrote it would be fictitious to believe that “taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.” The case now goes back to the trial court for a final determination, after applying the new standard to the facts at hand. The trial court had originally ruled in the drug dealer’s favor in 2015 and ordered the SUV returned to him.
This case is not the end of the civil asset forfeiture issue. Several legislative reforms have been proposed to curb civil asset forfeiture abuse. These reforms include:
Takings Clause does not apply to the destruction of a house in a police operation (Constitution news round-up)
1A: seventh in video series explains free speech rights at college
5A: Takings Clause does not apply to the destruction of a house in a police operation (10th Circuit)
Spending Clause: federal judge in NY strikes down Trump healthcare conscience rights rule
5A, Equal Protection: federal judge temporarily blocks immigrant health insurance rule as affront to Due Process and evincing ‘national-origin bias’
10A: Trump administration loses another sanctuary city case for attempting to impose new conditions on federal grant money
5A Due Process: Supreme Court mulling whether lawful permanent residents can be deported for criminal acts
2A: Hundreds of Second Amendment gun rights advocates rally on Capitol Hill
State Constitutions: Pennsylvania judge throws out Pittsburgh gun control ordinances because state law preempts local measures
1A: U of Michigan concedes defeat, disbands speech police
1A: Laura Loomer free speech case against Apple, Google, Facebook, and Twitter to go to trial
1A: ‘outdated’ First Amendment under attack; push is on for hate speech laws
2A: “Debunking the Myth of ‘Concealed-Carry Killers’”
2A: Pregnant woman in Florida uses AR-15 to fend off two home intruders who were attacking her husband and daughter
2A: Quiet - Gun Grabbers at Work! Florida police use pawnshop data to create illegal gun owners’ list
2A: Active shooter drills train future school shooters how to increase casualties; data suggests other ways to mitigate school shooting problem
4A: search and seizure issue not reached in case where court approved an executive branch team to review privileged attorney-client documents seized from law firm
4A: court ruling may open up consumer DNA sites to law enforcement
8A: Indiana Supreme Court reins in civil asset forfeiture under Excessive Fines clause
8A: article discusses reforms to civil asset forfeiture including the restoration of the presumption of innocence, channeling seized monies to general fund, outright abolition, etc.
Copyright: Supreme Court hears case testing whether copyright holders can sue states for infringement or state immunity bars such claims
Symposium finds Constitution under threat from the administrative state and the Left’s assault on civil liberties
Holocaust restitution experience shows slavery reparations would be difficult and divisive to enact
New documentary - “Clarence Thomas in His Own Words” in theaters next February
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