A panel of the 7th Circuit left in place some local ordinances banning assault rifles.

The gymnastics they had to go through even trying to make sense of the Supreme Court’s recent rulings on gun laws were exhausting. (Paraphrasing):

Well, you need to understand the original *intent* but you have to adapt your understanding of the actual firearms to accommodate modern sensibilities. And, to do so, you have to be mindful of the types of regulatory ordinances that were in place in 1791 or maybe it’s 1868 when the 14th Amendment was adopted. One part of the analysis is to determine whether the firearm is atypical of those owned by the general population, in which case, it’s not protected by the Second Amendment; or, if it’s typical and therefore does enjoy Second Amendment protection. If people buy enough of a certain kind of gun, it will magically transform from something the Founders “originally’ sought to protect. Also, this entire body of jurisprudence was invented in the last 15 years.

Like I’ve probably said before, it’s pretty trivial to fiddle with levels of abstraction to get to an “originalist” outcome that you like. The current jurisprudence pretends fealty to the text of the Second Amendment but then, despite the text’s focus on militias, somehow self-defense is the central purpose of the provision. It’s dizzying.

A friend of mine posted a link to the State of Washington’s brief in opposition to Trump’s Muslim Ban. It’s well-written and gets pretty directly to the point about what’s wrong with Trump’s executive order.

President Trump’s Executive Order bans all refugees from entering the country for 120 days, and bans all refugees from Syria indefinitely, whether they be infants, schoolchildren, or grandmothers. Washington families waiting to be reunited with their loved ones have had their dreams of reunification destroyed, as their refugee relatives around the world were taken off airplanes or told they are no longer welcome. The Order also bans nationals from seven countries from entering the United States for 90 days. Though the administration’s interpretation of the Order has changed repeatedly over the last 48 hours, it has applied the Order to block longtime legal permanent residents from returning to this country, and the Order’s text purports to grant the administration authority to continue denying entry to such residents.

. . .

While preventing terrorist attacks is an important goal, the order does nothing to further that purpose by denying admission to children fleeing Syria’s civil war, to refugees who valiantly assisted the U.S. military in Iraq, or to law-abiding high-tech workers who have lived in Washington for years.

. . .

To begin with, the Order is profoundly overbroad. Section 3(c) bans those from disfavored countries without any evidence that any individual poses a threat of terrorism. It sweeps within its ambit infant children, the disabled, long-time U.S. residents, those fleeing terrorism, those who assisted the United States in conflicts overseas, and many others who the government has no reason to suspect are terrorists. The government simply cannot establish any factual basis for presuming that all people from a given country pose such a great risk that an outright entry ban—rather than less extreme measures—is warranted.

At the same time, the order is also underinclusive to achieve its purported ends. By way of example, the Executive Order recites the tragic events of September 11, 2001, but imposes no entry restrictions on people from the countries whose nationals carried out those attacks (Egypt, Lebanon, Saudi Arabia, and the United Arab Emirates). Decl. N. Purcell ¶8; Ex. B. As to admission of refugees, the order claims that a temporary prohibition is necessary “to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States.” Sec. 5. Citing no evidence at all, the Order declares that “the entry of nationals of Syria as refugees is detrimental to the interests of the United States.” Sec. 5(c). But assertion is not evidence, and there is no evidence that refugees pose any unique risk to the United States.

. . .

A recent and exhaustive study concluded that the chance of an American being killed by a refugee in a terrorist attack is 1 in 3.64 billion a year

The brief also cites Trump’s campaign statements in an effort to prevent the feds from pretending that religion has nothing to do with the order. It’s worth a read if you’re really trying to get a sense of what the actual legal issues are.

Maureen Groppe, writing for the Associated Press, is reporting on Rep. Todd Rokita’s efforts to toughen requirements for kids to be eligible for free school lunches. According to the article, under current law, when 40% of students qualify for the program because of their participation in other programs (as opposed to individual verification of incomes), a school gets federal assistance that allows them to offer free lunches to the entire school. Advocates of this program indicate that, if income was verified for such schools, 2/3 of the students would qualify based on income eligibility and schools avoid the administrative burden of verifying income. Rep. Rokita wants to raise the threshold for waiving income verification to 60%. If this change takes place:

In Indiana, 120 schools serving nearly 58,000 students would no longer qualify for a schoolwide free meal program, according to the Center on Budget and Policy Priorities in Washington. An additional 231 schools would lose the chance to use the program in the future.

In a Facebook post, Abdul suggested that it’s only common sense to verify incomes. To which I replied that it’s an administrative expense to verify incomes and, also, the more often you require income verification, the more often a kid who qualifies will get excluded just because of the friction of bureaucracy.

But, I’m just an old softy because, at the end of the day if extra kids get fed with taxpayer dollars, I’m kind of o.k. with that. Because, you know, feeding kids — even kids who are from families that are lower middle class instead of poor — is not the worst way to spend tax dollars. Rep. Glenn Grothman (R-Wisconsin) does not agree with me. The House panel considering Rokita’s bill rejected Grothman’s effort to raise the threshold even higher — to 90%.

Grothman said the average person would agree that, even if 90 percent of a school’s students are poor, the school shouldn’t provide free meals to everyone, because a millionaire’s child might benefit.

We, the People, might feed a millionaire’s child. The horror.

The 7th Circuit Court of Appeals has a fascinating (to me) opinion that involves dueling visions of what sort of independent research by appellate court judges is appropriate in the context of a pro se claim of 8th Amendment cruel and unusual punishment due to inadequate medical care while in prison. (h/t Indiana Law Blog).

Some background information:
1. Mostly judges are supposed to decide a case based on facts established through properly designated evidence. In the context of motions for summary judgment, the judge is supposed to resolve factual disputes in favor of the non-movant. Some limited factual information is permitted to be admitted through “judicial notice.” Judicial notice is usually reserved for things that can’t reasonably be disputed (e.g. sunrise, sunset times; the authenticity of government records (though not necessarily the veracity of their contents)).

2. In the Eighth Amendment context, prisoners have a Constitutional claim if prison officials demonstrate “deliberate indifference to a serious medical need.” It is a higher standard than medical malpractice.

In this case, an inmate suffered from esophagitis. The prison doctor prescribed him Zantac but the inmate complained about the times he was able to get it (not close enough to meal times) and that he was restricted in his ability to get it from the prison pharmacy for periods of time, told that if he wanted it, he would have to get it from the commissary with his own money. The defendants submitted evidence from the prison doctor that giving him Zantac twice a day, regardless of the times, was appropriate. According to the dissent, the record established the following:

On Rowe’s claim that the timing of his Zantac doses showed deliberate indifference to his health, the evidence in the record consists of two items. First, plaintiff Rowe asserts in his verified complaint and in several affidavits that he believes the prison’s schedule for giving him two 150 mg Zantac pills each day left him in unnecessary and avoidable pain for hours every day after meals. Second, defendants filed an affidavit from defendant Dr. William Wolfe, who was a career physician in the United States Air Force and is now a contract physician for the Indiana Department of Correction. Dr. Wolfe testified: “It does not matter what time of day Mr. Rowe receives his Zantac prescription. Each Zantac pill is fully effective for twelve hour increments. Zantac does not have to be taken before or with a meal to be effective. Providing Mr. Rowe with Zantac twice daily as the nursing staff makes their medication rounds, whatever time that may be, is sufficient and appropriate to treat his heart burn symptoms.”

The District Court judge, based on the record before it, entered summary judgment in favor of the defendants, concluding there was not a substantial issue of material fact which, if the jury credited the inmate, would provide a basis for concluding that the prison staff acted with deliberate indifference to a serious medical need (which, remember, is something beyond mere medical malpractice.)

The majority decision, written by Judge Posner, includes a great deal of information obtained by the Court of Appeals from internet websites. It then, however, says that this information is not the basis of its decision to reverse the District Court. The majority decision says that the information is neither the result of evidence presented under the normal rules of evidence or as a matter of judicial notice. It characterizes the information as falling “somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice.” Additionally, it cites the inmate’s inability to afford or locate an expert medical witness to contradict the expert testimony provided by the jail doctor as a basis for reversing.

Judge Hamilton, writing a dissent, complains that this is not how the judicial process works. He is very skeptical of the majority’s assertion that Internet research did not play a critical role in the Court of Appeals’ decision. If it didn’t matter, why spend all that time on information located online? Such independent research by District Court judges or juries, Judge Hamilton observes, is the basis for the Court of Appeals reversing the lower court. The Court of Appeals should not engage in such extrajudicial fact finding itself. Judge Hamilton observes that “the issue on summary judgment is whether the evidence in the record would allow a reasonable jury to find in favor of the non-moving party. (emphasis in the original). By reversing the district court, the majority is necessarily concluding that this record is sufficient to sustain a jury finding of deliberate indifference. By extension, this dramatically lowers the bar for establishing deliberate indifference under the 8th Amendment. (The majority seems pretty clearly to intend that, at trial, a more complete record be established — but, under traditional principles of the federal Court of Appeals’ role in reviewing an order granting summary judgment, giving the non-movant a second bite at the apple is not an option. The unsuccessful non-movant can’t protest that he or she was going to show the jury more than he or she submitted at the summary judgment stage.)

I was amused by this critique offered by Judge Hamilton:

To justify this venture, the majority asks a number of rhetorical questions and invokes the courage of the barons at Runnymede in 1215. Ante at 14. With respect, we are an intermediate appellate court. The Federal Rules of Evidence and Federal Rules of Civil Procedure that we apply are adopted and amended through processes established by the Rules Enabling Act, 28 U.S.C. § 2071 et seq. We simply do not have authority on our own to take the law into this unknown territory.

He then expands on the practical mess this creates for other cases — litigants will have to anticipate and respond to, not just the evidence presented by their adversaries, but by outside research the judiciary might do. There is also the issue of who has to pay for the expert witnesses the indigent inmate might want or demand. The courts don’t have the resources to pay for much of that. It is unfair to make the defendants incur such expenses, not just for themselves, but for the indigent inmates, in those cases when they’ve done nothing wrong.

As is probably obvious from the way I have framed this blog post, I agree with Judge Hamilton. I don’t have much problem concluding that there was a good chance that the prison doctor exercised inadequate medical judgment. But that’s a medical malpractice claim, and if the inmate is going to make such a claim, he should bring it under that theory. (With respect to the deliberate indifference necessary to sustain a Constitutional claim, Judge Hamilton notes that even the extra-judicial information cited by the majority does not establish that “Dr. Wolfe was so thoroughly and obviously wrong that a jury could infer that prison staff were deliberately indifferent to Rowe’s health needs.” (emphasis in the original)).

That the judicial process presents difficulties for people without financial resources is beyond dispute, but this ad hoc decision by the majority is unworkable on the scale that will be necessary if this decision stands as precedent for other cases. My hope is that the 7th Circuit reviews this en banc and determines that the record is insufficient to permit a jury to conclude something more than medical malpractice took place.

In a 5-4 opinion, the United States Supreme Court has decided, in Obergefell v. Hodges (pdf), that prohibitions against same sex marriages violate the Equal Protection and Due Process clauses of the United States Constitution. I’m happy with the result, but, after an initial read of the opinion, I don’t think it is a great model of legal writing – more high minded rhetoric than clinical analysis of the facts and law before the court. (In my mind, Judge Posner’s opinion in Baskin v. Bogan (pdf) was much better as a legal document.) Chief Justice Roberts’ dissent has a lot to work with in that regard.

That said, after all the critical noise about the deficiencies in the majority opinion, Roberts’ dissent is remarkably thin where all of these efforts to justify a same-sex marriage bans have been thin: the rational basis for such prohibitions. If you strip away his critiques of why the majority opinion is deficient, the following seems to be the sum of his explanation of why such bans are constitutionally permissible:

In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of marriage.

“We’ve always done it this way,” is cited as a sufficient state interest. I’d enjoy seeing John Roberts, as an attorney, argue that position to Judge Posner. I’m guessing he would not fare any better than Indiana’s Solicitor General did in front of the 7th Circuit.

In Indiana, when analyzing the state’s “defense of marriage act,” the rationale had to do with procreation. My post back in 2005 after the Indiana Court of Appeals decision:

[T]he Court of Appeals found that the legislature could enact such legislation to further its goal of encouraging procreation. And, since gay couples can’t procreate, they can be deprived of the benefits conferred on married couples. . . . The reasoning of the court seems specious. I would love to see how the Court reacted to legislation that prohibited barren or post-menopausal women from getting married or remaining married.

There is a tone of indifference in that 2005 post of mine of which I am not proud. I had more gay friends than I knew back then, and even more now. And they love as deeply as anybody. Mere tradition is an insufficient reason for barring them from forming the same sorts of legally recognized family units that society affords opposite sex couples. The rationales for maintaining such prohibitions, to the extent any are offered, so often seem like post hoc affairs — after the fact rationalizations where the real reason has more to do with habit than utility.

In any event, I’m happy about this decision on a number of levels — but especially for those gay friends of mine who were not allowed to get married yesterday but who are now free to do so.

Magna Carta, the charter agreed to by King John as a concession to some rebel barons, is 800 years old today. John put his seal on the document on June 15, 1215. As a practical matter, the document seems to have been mostly ignored by John and his successors. And, in any event, it primarily protected only the rich and powerful.

Despite the somewhat unimpressive practical reality of the charter, the mythology that grew up around it has been quite influential. Based on a badly flawed view of history, English jurists came to view the document as codifying to some extent the freedoms of Englishmen prior to the invasion of William the Conqueror in 1066. The belief in these freedoms as an ancient birthright – even if their predecessors did not, in fact, enjoy their protections – contributed to a cultural narrative where those freedoms became a reality. Magna Carta also served as a tangible bulwark against claims by the Stuart Kings that their rights were divine and absolute, perhaps partially explaining why they never enjoyed the level of power amassed elsewhere during that era (Louis XIV comes to mind).

The political myth of Magna Carta and its protection of ancient personal liberties persisted after the Glorious Revolution of 1688 until well into the 19th century. It influenced the early American colonists in the Thirteen Colonies and the formation of the American Constitution in 1789, which became the supreme law of the land in the new republic of the United States. Research by Victorian historians showed that the original 1215 charter had concerned the medieval relationship between the monarch and the barons, rather than the rights of ordinary people, but the charter remained a powerful, iconic document, even after almost all of its content was repealed from the statute books in the 19th and 20th centuries. Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”

The document contained a great deal of discussion about various mechanisms the Crown used to extract money from the nobility, but in modern times, its most important contributions to our legal system surround the concepts of the Church’s independence from the State and the general notion that people are entitled to due process of law. Not too shabby!

In a 2-1 decision, a panel of the 7th Circuit upheld a ban on “assault weapons” by the City of Highland Park, Illinois. Judges Easterbrook and Williams upheld the ordinance. Judge Manion dissented and would have struck down the ordinance as violating the Second Amendment.

The City of Highland Park has an ordinance (§136.005 of the City Code) that prohibits possession of assault weapons or large?capacity magazines (those that can accept more than ten rounds). The ordinance defines an assault weapon as any semi?automatic gun that can accept a large?capacity magazine and has one of five other features: a pistol grip without a stock (for semiautomatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non?trigger hand; a barrel shroud; or a muzzle brake or compensator.

The Seventh Circuit indicated that the Supreme Court had not indicated the level of scrutiny under which a law implicating the Second Amendment must be analyzed. It could not be mere “rational basis” scrutiny. All laws must have a rational basis and, if that were the low bar set for Second Amendment cases, the Second Amendment would not do anything. Having noted that, however, the Seventh Circuit declined to articulate a level of scrutiny and, instead, announced:

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law?abiding citizens retain adequate means of self?defense.

The court then noted that the banned features were not common in 1791. And, while the court noted a potential relationship to a well-regulated militia, the court thought that, since it was up to the states to regulate their militias, it was not a violation if state authority was used to ban this sort of weapon. (The court elided the question of whether it made a difference that this was an ordinance rather than a statute by observing that Plaintiffs contend that the same law would be a constitutional violation if imposed by the state instead of local government.)

With respect to self-defense, the court engages in some petard hoisting. When plaintiffs argue that the ban will leave citizens with insufficient options for self-defense, the court looks at the plaintiff’s argument that the ban will not stop crime. Part of that argument, apparently, was that criminals would simply turn to firearms not regulated by the ban to commit crime and, therefore, the ordinance was not rationally calculated as a crime prevention mechanism. If criminals can commit their crimes with other weapons, the court reasoned, then so too could citizens protect themselves with permitted firearms.

The court concludes:

McDonald holds that the Second Amendment creates individual rights that can be asserted against state and local governments. But neither it nor Heller attempts to define the
entire scope of the Second Amendment—to take all questions about which weapons are appropriate for self?defense out of the people’s hands. Heller and McDonald set limits on
the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self?defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a
search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.

Judge Manion disagreed, regarding the Court’s holding as contrary to the relatively recent Supreme Court holdings in Heller and McDonald. In his view, those decisions largely read the status of weapons at the time of the 1791 ratification and consideration of militias out of Second Amendment analysis. Because the Supreme Court determined that weapon ownership was an individual right, Judge Manion regarded the self-defense analysis as the only part of the majority analysis with some relevance.

To be sure, assault rifles and large capacity magazines are dangerous. But their ability to project large amounts of force accurately is exactly why they are an attractive means of self-defense. While most persons do not require extraordinary means to defend their homes, the fact remains that some do. Ultimately, it is up to the lawful gun owner and not the government to decide these matters. To limit self-defense to only those methods acceptable to the government is to effect an enormous transfer of authority from the citizens of this country to the government—a result directly contrary to our constitution and to our political tradition. The rights contained in the Second Amendment are “fundamental” and “necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778. The government recognizes these rights; it does not confer them.

In his analysis, Judge Manion engages in some parsing of which weapons are covered by the Second Amendment and which are not that strikes me as somewhat dubious. Using hand grenades as an example, he says that the question of whether a particular weapon is covered by the Second Amendment turns on whether the weapon has ever been “commonly used by law-abiding citizens.” Perhaps grenades have not been commonly used by law-abiding citizens because they have been illegal.

But, there is much more to his dissent, and it, too, is worth a read.

Update: At its conference on December 4, 2015, the United States Supreme Court denied transfer (see the dissent starting on page 12 of the link) over a dissent written by Justice Scalia and joined by Justice Thomas.

The majority did not explain the denial of transfer, so it’s difficult to read much into what they might be thinking. But Justice Thomas believed that the Highland Park ban was contrary to Heller and McDonald. Justice Thomas noted that the 7th Circuit panel majority had adopted a test that asked “whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia, . . . and whether law-abiding citizens retain adequate means of self-defense.” He does not believe that this test: 1) weapons in existence in 1791; 2) the relationship to a well regulated militia; or 3) self defense is justified after Heller. He believes it was error for the 7th Circuit to limit the Heller decision to the facts in that case (involving handguns and self-defense). He does not appear to think that the relationship to a militia constrains the individual’s right to possess bearable arms in any way and, in any case, he believes that Congress and not the States are in charge of organizing militias.

Thomas’s insistence that Heller protects those weapons “commonly” used for self-defense regardless of available alternatives is perplexing to me as a matter of Constitutional analysis. Why would popularity or lack of popularity matter to Second Amendment analysis. Your right (or lack thereof) to own a gun depends on whether your neighbors also like that type of firearm? Meanwhile, Justice Thomas states that the public’s sense of safety (which may arguably be enhanced by a ban of such firearms) is an irrelevant policy consideration.