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Tag Archives: supreme-court
Posted: February 22, 2017 at 4:40 am
To press the issue, Sanders veterans, along with allied activists and organizers, have launched a new political action committee called We Will Replace You. The group is demanding that Democrats on Capitol Hill uniformly oppose all Trump nominees, including Supreme Court nominee Neil Gorsuch, demand the firing of top Trump strategist Steve Bannon and use all the levers of their limited congressional power to gum up the White House agenda — or face opposition from within their own party.
They are also asking new supporters to sign a pledge — written at the top of their homepage — promising to back “primary election challengers against any Democrats who won’t do everything in their power to resist Trump.”
“Democrats need to know there is an actual political cost and this isn’t just going to be folks showing up at their offices, but folks showing up at the ballot and different organizations supporting challengers who are going to push the party in a different direction,” said Max Berger, a co-founder of #AllOfUs, the millennial progressive group that launched the new campaign.
Early opposition to the Trump administration, most visibly in the form of mass protests and rowdy recriminations against Republicans at town hall meetings around the country, has turned up the heat on long-simmering efforts by the left to pressure moderate Democrats. With the party now totally out of power in Washington and at a crossroads, activists who gained experience during Occupy Wall Street and through work with the Movement for Black Lives, the Fight for $15 and other aligned causes see an opportunity for greater influence.
“We’ve had a generation of protests where people have learned how to fight those in power. But eventually, you get to a point where you realize that it’s necessary for the communities that you represent to actually have power and not just to protest,” Berger said. “The leaders that we see coming out of those movements are now looking to win elections and represent the communities they have been serving for the past decade.”
We Will Replace You is operating as a hybrid PAC, meaning it can raise money and offer capped support to specific candidates while also making independent expenditures from a separate account. Co-founder Claire Sandberg, a former digital organizing director for the Sanders campaign, said the group is banking on a financial groundswell, delivered through ActBlue and other familiar channels, to deliver an early boost.
“We’ve seen the power of what an army of small dollar donors and grassroots volunteers can do when they are asked to do something that they believe in,” she said. “We don’t think that we need a giant pile of cash to make this project extremely successful electorally.”
As Republicans learned earlier this decade, dedicated efforts to influence policy from within by launching contentious primary fights can yield mixed results. For every Mike Lee or Ted Cruz, both tea party-backed candidates who took on the GOP establishment before knocking off Democratic opponents in Senate races, there have been cautionary tales, like Sharron Angle and Richard Mourdock, who fumbled away seats Republicans expected to win.
Democrats have little margin for error in 2018, when 10 of their own come up for re-election. Republicans currently hold 52 seats in the upper chamber. If the GOP can flip eight more, they will claim a filibuster-proof majority and go forward with virtually no constraints on their legislative agenda.
Sandberg dismissed concerns, most often voiced by party centrists who backed Hillary Clinton in the 2016 primary, that a “tea party of the left” could harm Democrats on Election Day.
“We reject out of hand the notion that pushing Democrats to be better candidates will lead to more Republican victories,” she said. “The much greater danger is a Democratic base that is uninspired by the party’s tepid response to the Trump administration will not feel motivated to turn out.”
We Will Replace You expects to ramp up its efforts in the summer. It has not yet named or set its sights on any particular race, though it could offer support to Virginia gubernatiorial hopeful Tom Perriello, who is running this year in a primary many Democrats will look at as a bellwether for 2018.
Adam Green, co-founder of the Progressive Change Campaign Committee, told CNN that while there has been “a constant appetite” for pitting progressive newcomers against establishment picks in open seat primaries, the increased pressure on elected Democrats has been a long time coming.
“There’s been ebbs and flows in the willingness to primary incumbents and that will likely be way more on the table in 2018 than it’s been in past cycles,” he said. “And most likely there will be at least one clear poster child that people identify and collaborate around.”
Continue reading here:
Posted: at 4:30 am
Editors note: The Registers parent company, Community Newspaper Holdings Inc., has papers all over the United States. Each Wednesday, this space will be dedicated to what one of those papers thinks about the issues facing their communities.
In striking down Lexingtons anti-panhandling law, the Kentucky Supreme Court has further clarified what local governments can do to discourage individuals from begging: very little.
Despite the societal stigma associated with panhandling, this form of expression is widely considered to be constitutionally protected speech, Chief Justice John D. Minton Jr. said in the decision.
Its a decision that likely kills similar ordinances across the state, including the one in Louisville Metro that imposes a $250 fine, 90 days in jail, or both for those who aggressively beg for money in public.
The landmark ruling also said it is unconstitutional for city officials to treat individuals who carry signs begging for money differently from others, such as those with religious messages such as Jesus Loves You.
The only thing distinguishing these two people is the content of their messages, Minton wrote.
The ruling does provide guidance to local governments about what they can and cannot do to discourage panhandling. Nearly every city in Kentucky, including Ashland, has debated ways to limit individuals from begging.
The case before the state Supreme Court was brought by attorneys for Dennis Champion, 58, who has been cited or arrested more than 550 times for begging, illegal solicitations and disorderly conduct since 2004 in Lexington and Louisville, according to court records.
Defending the Lexington ordinance, which carried a maximum penalty of 30 days in jail, a $100 fine, or both, the Fayette County attorneys office said the city had a compelling interest in pedestrians not being struck by motorists and in the efficient flow of traffic. But the 14-page ruling said Lexington officials failed to show panhandlers were responsible for traffic delays or accidents.
A decade ago, Louisvilles Metro Council enacted an anti-begging law saying there was an increase in aggressive solicitation in downtown and throughout the city that had become extremely disturbing and disruptive to residents and businesses. The ordinance says certain types of panhandling has contributed not only to the loss of access and enjoyment of public places, but also to an enhanced fear, intimidation and disorder.
It was primarily a response to people who (were) getting up in folks faces, not leaving them alone and demanding money, Democratic caucus spokesman Tony Hyatt said. Louisville has defined aggressive solicitation as repetitively approaching or following pedestrians despite refusals, the use of abusive or profane language to cause fear and intimidation, unwanted physical contact, or the intentional blocking of vehicular and pedestrian traffic. It specifically forbids such behavior within 20 feet of an automated teller machine, an outdoor dining area or a bus stop.
The high courts ruling does provide a legal road map to how cities could regulate beggars and that appears to favor Louisvilles ordinance. Minton wrote that Lexington could prohibit all individuals from approaching stopped motorists, which he said targets the behavior a city seeks to prohibit rather than why a person steps into traffic.
The new Supreme Court ruling makes it clear panhandlers have the right to beg, but that does not mean anyone must give them anything. In fact, we think the best way for people to respond panhandlers is to not give them anything to make begging worth their time.
The Daily Independent, Ashland
Posted: at 3:58 am
Citizens United, or Citizens United v. FEC, is a 2010 case in which the Supreme Court struck down limits to independent political expenditures on First Amendment freedom of speech grounds. The ruling didnt affect lobbying activities and direct contributions to political parties and candidates that continue to be subject to regulation. It allowed individuals, corporations, and labor unions to spend what they wanted to enter the public debate about politics and policy that inevitably surrounds elections and their campaigns. It gave rise to what has become a household term super PAC.
The decision led to a torrent of criticism, mainly from the left. The essence was Citizens United enhanced political inequality by amplifying the voices of corporations and the rich. President Obama said at the time this ruling strikes at the heart of democracy. Indeed, the amount of such independent spending skyrocketed outside group expenditures associated with presidential elections tripled from 2008 to 2012 much of it advocating conservative-type policies and candidates. The presidential election saw an interesting decline, a Trump effect, if you will.
The First Amendment says nothing about equal speech, just that you cant prohibit it. The Constitution surely places a larger burden on the opponents of the decision than its supporters. But lets assume Citizens United poses a challenge to our democracy. Certain people and groups, by dint of their wealth, can make greater contributions to public debate than others. They join what John Adams called a natural aristocracy, a class of people distinguished by their ability to influence others votes a class already populated by educators and media, which are dominated by the left.
But its critical to remember the behavior permitted by Citizens United like other forms of salutary free speech takes the form of persuasion, not coercion. It allows individuals to make a case to large numbers of people. Theres no cost to rejecting the appeal. Surely political action designed to compel others to take a public position on a matter of policy or cast a vote for a particular candidate is considerably more harmful. Democracies should embrace advocacy but reject force.
Yet force is everywhere in politics today, much of it designed to exert economic pressure. Liberals across the country have organized efforts to make North Carolinians who support House Bill 2 change their views or face economic harm. Businesses connected with Trump are threatened if they dont disassociate from his administration. Those who ran Super Bowl ads implicitly critical of his agenda face reprisals from the other side. The aim is to punish and constrain freedom. Economic and political liberties are inextricable. As Milton Friedman noted, free commerce allows humans to enjoy social and financial gains from exchange without letting political differences get in the way. Using economics as a political tool leads us down the road to authoritarianism.
Groups use intimidation in ways other than economic boycotts. The ostensible goal of the new left-wing anti-Trump Indivisible movement is to execute, like the Tea Party before it, a full-court press on members of Congress. But its greatest wish is to embarrass and harass non-conforming citizens who we perhaps might call deplorables into silence.
The target isnt always people with whom they disagree. Such groups also attack their own. Those who reject orthodoxy become pariahs. Pro-life women were barred from the marches immediately following the Trump inauguration because the organizers, as self-proclaimed definers of female identity, believed they werent woman enough.
Alexis de Tocqueville warned Americans of such tyranny nearly 200 years ago. He saw a tendency to evangelize and bully. All of this seems fresh and particularly intense again. We are deeply divided, in a kind of political war. For many who profess to embrace free speech, theres no longer room for broad and reasoned debate, for independence of thought.
Although they constitute a naked effort to compel subjects to behave in a particular way, these kinds of politics are surely protected under the Constitution. Besides, in practice, how would effective regulation work? The left therefore turns gleefully to advocacy and the ability of its opponents to make their case something conservatives must do directly because the media, education establishment, and other privileged citizens with state-funded or protected megaphones wont. Citizens United facilitates broad public discussion of parties, candidates, and policies. But in the logic of the new lefts morality, its more harmful than efforts to force Americans how to think and act.
Andy Taylor is a professor of political science at the School of International and Public Affairs at N.C. State University. He doesnt speak for the university.
Supreme Court considers parents’ rights after boy killed by agent across Mexican border – Washington Times
Posted: at 3:55 am
The Supreme Court struggled Tuesday to define limits to the Constitutions Fourth Amendment in a tragic case in which a U.S. Border Patrol agent fired his weapon and killed a 15-year-old boy on the Mexican side of the line.
Some of the justices feared that if they went too far, they could open the U.S. military to claims from victims of drone attacks in foreign countries. But the courts liberal wing worried that unless they gave the family its day in court, it had no recourse to punish rogue agents.
You have a very sympathetic case, Justice Stephen G. Breyer told the attorneys for the family of Sergio Hernandez, the boy killed in 2010 by the shot fired by agent Jesus Mesa Jr.
Mr. Mesa was cleared after a probe by the U.S. government, which said it could not establish that he violated Border Patrol policies.
The family says it wants justice in the courts. The only problem: Lower courts have ruled that since the boy was in Mexico, the Fourth Amendment protections dont apply in this case.
Robert C. Hilliard, the attorney for the Hernandez family, cast his case as a defense for other Mexicans who might find themselves in the same situation. He said there is an ongoing domestic routine law enforcement issue that needs to be solved.
Were here because the interaction of the Border Patrol in this area, the government has taken the position that on the border, the Constitution turns off if the deadly force goes across the border, he said.
He said there have been 10 instances in which the Border Patrol has fired from the U.S. into Mexico and killed someone.
Ahead of Tuesdays oral argument, some analysts said the case could give an indication of how the justices might rule on the extreme vetting executive order issued by President Trump. That order has been mostly blocked by federal courts, which ruled that potential visitors outside the U.S. and foreigners inside the U.S. illegally have constitutional rights that must be respected.
But the justices didnt stray far afield Tuesday. Instead, they debated whether they could draw a line that would allow the family to sue in this case but wouldnt open a whole category of lawsuits against U.S. troops who create collateral damage.
How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada? Chief Justice John G. Roberts Jr. asked Mr. Hilliard.
Justice Ruth Bader Ginsburg waved aside those concerns, saying thats a military operation that could be distinguished from a border encounter involving a federal law enforcement officer.
The chief justice did not seem swayed by the distinction, particularly in a tort claim against a federal employee.
The case could turn on the exact spot where the slaying occurred. The boy was shot in a culvert that is maintained by both the U.S. and Mexico though the ground where he fell is clearly on the Mexican side, the attorneys said.
Some of the courts liberal justices said that if the U.S. government has some authority over the territory, that could be a zone where Fourth Amendment protections against searches and seizures and in this case unlawful death would apply.
But Randolph J. Ortega, Mr. Mesas attorney, said the matter of the border cant be minimized.
Wars have been fought to establish borders. The border is very real, he said.
Mexico had asked for Mr. Mesa to be extradited to face charges there, but the U.S. government refused. The Mexican government then backed the familys lawsuit in court.
City Council to look at removing zoning restrictions on gambling entities – Watertown Public Opinion
Posted: February 20, 2017 at 7:49 pm
A section of a Watertown city zoning ordinance pertaining to gambling establishments could go by the wayside.
The Watertown City Council is set to conduct a first reading amending Title 21 of Ordinance 17-02 removing zoning restrictions on those entities on March 6. The potential revision would put the city in compliance with a 2011 South Dakota Supreme Court ruling that municipalities could not regulate gambling institutions, including casinos and video lottery establishments.
The proposed amended ordinance was put forth by City Attorney Justin Goetz, who has been busy in working with the Plan Commission and City Council in updating the ordinance book since assuming his position last summer.
Under the current ordinance, gambling establishments are confined to commercial zoning areas under a conditional use permit, similar to restaurants, motels, and other businesses.
However, in 2011, the Supreme Court sided with the South Dakota Department of Revenue over the City of Sioux Falls as the Department of Revenue argued that the City of Sioux Falls ordinance on gambling establishments was invalid because it infringed on the sovereign prerogative of the state.
While the proposed ordinance wouldnt be able to explicitly restrict gambling establishments in commercial districts, that doesnt mean that those establishments are going to be able to pop up anywhere in the city.
Goetz noted to the Plan Commission last week that in issuing the ruling, the Supreme Court said municipalities such as Watertown could effectively enact restrictions on the placement of gambling establishments.
There is still the ability of the city to determine locations of alcohol licensees. The gambling license is effectively attached to the alcohol license it is a certification attached to the alcohol license. That allows the city to be able to regulate placement, Goetz said.
According to Goetz, the proposed amended ordinance would allow Watertown to get out ahead of any potential legal challenge against the current ordinance brought forward by either the state or another party.
No lawsuits against the City of Watertown on the issue are pending or currently underway, which left Plan Commission member Dennis Arnold questioning the timing of the proposed ordinance.
(At any given time) there are a lot of court cases and things around the county where organizations are challenging something and it gets changed, Arnold said. I think the residents of Watertown have liked our (gambling locations) ordinance the way it is, or at least thats what I assume. Nobody has challenged it. Why do we have to change it if nobody has challenged it?
While Goetz said he empathized with Arnolds point of view, he also said that the proposed ordinance reflecting the court ruling is an extension of the state establishing its authority back in the 1980s when the original law cited by the court was written, thereby not leaving it up to different interpretations by municipalities.
In interpreting the courts ruling, Goetz said, If localities were allowed to determine where gambling establishments could be in South Dakota, there would be a lot of dry communities, if you will, for these kind of establishments These forebears at the state level saw that writing on the wall and saw that municipalities would have issues certain municipalities more than others. In order to ensure that this was provided statewide, municipalities couldnt butt in and occupy the field of state regulation that they had set for themselves.
After the first reading of the ordinance amendment occurs on March 6, a second reading, and possible approval, may occur at the following City Council meeting scheduled for March 20.
See the article here:
Posted: at 7:38 pm
PANAJI: The opposition Congress on Monday said it would not renew the liquor licences of offshore casinos after March 31 if voted to power on March 11, the day of counting of votes for the February 4 Assembly elections. “Once we form the government, I assure you we will not renew the excise licences of the offshore casino vessels once they expire on March 31,” AICC secretary Girish Chodankar told reporters. Banning the offshore casinos in Mandovi river was one of the prominent promises made by the Congress in its election manifesto. “The Congress party will take appropriate legal remedies to insulate its decision to ban the sale of liquor on offshore casinos from any legal implications. We will have to make sure that the casino operators don’t challenge our decision in the court,” he said. As the casinos currently operating in Mandovi river are 800 metres away from national highway, they do not fall under the purview of a recent Supreme Court order under which the liquor outlets located within 500 metres of state or national highways will have to shut down.
Posted: at 7:22 pm
A panel of researchers from the National Academy of Science and the National Academy of Medicine released a report last week indicating preliminary support for embryonic gene editing in cases of severe disease or disability.
This support for genome editing represents not only the potential alteration of human germlines, the genetic material we may pass on to our children, but also the crossing of an ethical line. Genetic selection, after all, has its own questionable historical lineage.
I believe germline editing is a eugenic process. From the Greek term for well-born, eugenics refers to the selection of heritable biological traits with the aim of producing ideal progeny.
Amid post-Darwinian theories of biological degeneracy in the 19th century, eugenics emerged as a scientifically backed effort to eliminate disability, mental illness and non-white races from the human gene pool through forced sterilization and other intrusive measures.
In the 20th-century United States, eugenic efforts consolidated into federally funded sterilization programs in 32 states, some of which endured well into the 1970s. Indiana, in fact, was the first in the world to enact compulsory eugenic sterilization legislation in 1907.
A notorious 1927 Supreme Court ruling in Buck v. Bell upheld the constitutionality of sterilization laws in the case of Carrie Buck, a woman deemed feebleminded and unfit in Chief Justice Oliver Wendell Holmes majority opinion.
It is essential to recognize that eugenic practices received overwhelming scientific, medical and governmental backing in the name of public health. Though the practice is now acknowledged as unethical, it was legally dismantled only about half a century ago.
Embryonic gene editing procedures are not on the same ethical level as forced sterilization, but the processes nonetheless share eugenic goals.
An underlying principle of eugenics is that society gets to decide which conditions should be eliminated from the human gene pool.
This determination involves a subjective value judgment in selecting which specific diseases or disabilities should not be permitted to exist.
The panels report does acknowledge the troubling relationship between eugenics and human germline editing. While the awareness of this history is crucial in considering the ethical principles at stake, it does not resolve the problem.
The report offers no concrete guidelines for assessing which conditions qualify as severe disease or disability, nor does it clarify whether this determination would be based on quantitative measures, like fatality rates, or other more subjective measures.
Research for treatments is a better investment of resources, and it enables progress toward less ethically questionable options.
The National Institutes of Health currently allocate no funding to gene editing in embryos and for good reason.
Fortunately, it will likely require several years before embryonic gene editing would be a viable option. In the meantime, its time to reassess the ethical heritage of the practice: eugenics.
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Posted: at 7:10 pm
Is a threat to eliminate the tax exemption of churches that endorse candidates or political parties posed by a 1954 law called the Johnson Amendment a constitutional infringement on the rights of church leaders to freely express themselves from the pulpit?
At ColoradoPolitics.com, Deb Walker, executive director of Citizens Project writes, Government may not subsidize political endorsements through tax exemption, and that The Johnson Amendment ensures that citizens of all faith traditions (or no faith tradition) are not inadvertently financially supporting church-based politicking. There are two failures in reasoning here.
First, the reasons for exempting churches from taxation are distinguishable from those that apply to other types of charitable organizations. Whereas the law may exempt secular charities because it deems that the charitable purposes provide public benefits that outweigh the need to tax such activities, the principle of not taxing churches originates in the constitutional, philosophical and political foundations of our nation.
The Supreme Court examined this principle in Everson v. Board of Education, a 1947 case affirming the authority of a state to provide funding for school busses to transport children to Catholic schools in New Jersey writing, The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. These practices of the old world began to thrive in the soil of the new AmericaCatholics found themselves hounded and proscribed because of their faithmen and women of varied faithswere persecuted. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches.
The people [of Virginia], as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax[in order to] interfere with the beliefs of any religious individual or group.
The establishment of religion clause of the First Amendment means at least thisno tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
This sounds as if the Court would hold that New Jersey has no authority to provide taxpayer-funded school busses for Catholic schoolchildren, but thats not case. What the Court pointed out in affirming that policy is that the amendment commands that New Jerseycannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. (Emphasis in original)
The second error is that a tax exemption is not a subsidy. An exemption from a tax is not giving the person or group exempted something they dont already have. Neither a taxpayer not affiliated with a religious organization nor the government has something taken from them that goes to a church merely because the church doesnt pay a tax. Therefore, a tax exemption does not mean that the public is financially supporting church-based politicking, nor does it mean that the government is entangled in underwriting partisan political activity.
Where the Johnson Amendment and Walker go wrong is in failing to understand that when it comes to religion the taxing power of Congress has a constitutional hurdle it must overcome that doesnt apply to conventional non-religious charitable organizations.
The historic truths cited by the Supreme Court stand for the proposition that the government cannot tax religious institutions in ways that inhibit the free exercise of religion just as much as it does the proposition that it cannot tax anyone for the purposes of advancing religion.
Thus, when it comes to religious institutions its questionable whether or not the 501(c)(3) rules apply at all because it is the First Amendment itself that arguably prohibits the taxation of churches because religion-suppressing taxation has always been as formidable an enemy of religious freedom throughout history as religion-supporting taxation has, as the Supreme Court points out and as the Founders went to great pains to avoid.
Religiously motivated speech is a constitutionally protected aspect of religious liberty that cannot be suppressed by the threat of anti-religious, anti-free-speech government taxation. This includes the freedom of both ministers and others to preach in favor of or against any political party or candidate or any other matter that they believe would either threaten or support their rights to religious freedom.
Read the original:
Posted: at 6:55 pm
The Supreme Court will hear oral arguments in a case implicating a U.S. Border Patrol agent in the cross-border shooting of a Mexican national in the border zone near El Paso, Texas, Tuesday.
The case asks the justices to determine how the Fourth Amendments prohibition on unjustified deadly force applies in the border zone and if the agent is protected by qualified immunity, which protects federal employees from civil suits when they are working in their official capacity.
Sergio Adrian Hernandez Guereca, a Mexican national, was shot and killed by Agent Jesus Mesa, Jr., July 7, 2010. Mesa was standing in the United States when he discharged his service weapon. Hernandez was shot and died on Mexican soil.
Lawyers for Hernandezs family allege he and several friends were playing a game in which they ran up the inclined border culvert separating the U.S. and Mexico, touched the border fence, and retreated back into Mexico.
The U.S. Department of Justice strongly disputes this framing of the incident.
After the shooting, the Department of Justice conducted a comprehensive and thorough investigation into the shooting, concluding that the shooting took place while alien smugglers, including Hernandez, unsuccessfully attempted an illegal border crossing, and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect, Mesas brief for the Court reads. Hernandez had been arrested twice before for alien smuggling. The Justice Department declined to recommend criminal charges against Mesa.
The justices are not asked to reach findings on these factual disputes.
On appeal, the 5th U.S. Circuit Court of Appeals dismissed the case, finding the Supreme Courts ruling in U.S. v. Verdugo-Urquidezmitigated against such claims. In that case, the justices found that the Fourth Amendments prohibition on unwarranted searches and seizures does not apply when federal agents search homes owned by foreign nationals in other countries. They also ruled that Mesa was entitled to qualified immunity.
Hernandezs family counters by arguing the Court established in Boumediene v. Bush,that, in particular contexts, foreign nationals may have constitutional protections. The Boumediene decisionallowed detainees at Guantanamo Bay, Cuba, to challenge the legality of their detention. Mesa rebuts by asserting that decision applies only to territories over which the U.S. has de facto control like Guantanamo Bay and not to territories over which the U.S. does not have exclusive control, like the border zone.
The outcome of the Fourth Amendment decision reflects a divergence in approach to such questions within the Court. While some of the justices favor maintaining bright-line rules about the extent of the Constitutions application abroad, others prefer an approach which considers the details unique to each situation, and will extend certain constitutional protections on a case-by-case basis.
The question of qualified immunity will turn on whether a reasonable officer would have known his conduct was unconstitutional.
In addition to the Fourth Amendment and qualified immunity questions, the justices asked the parties to answer whether or not the Hernandezs could bring a suit under Bivens v. Six Unknown Agents, which allows courts to award damages for egregious constitutional violations by federal officials.
The case could have a significant effect on U.S. law enforcement or national security abroad. Writing at Lawfare, professor Andrew Kent of Fordham University School of Law explains:
If these amendments are held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient for Lawfare readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branchs assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.
The case has attracted a great deal of attention from other parties. Amnesty International and the ACLU have each filed amicus, i.e. friend-of-the-court briefs, in support of the Hernandez family, while the Criminal Justice Legal Foundation filed a brief backing Mesa.
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Posted: at 6:55 pm
When Justice Antonin Scalia passed away suddenly last year, the Supreme Court lost its premier conservative voice and defender of the Second Amendment.
Justice Scalia was a champion of individual freedoms, and adhered to a strong originalistphilosophy of interpreting the Constitution. With little room for the personal politics that many judges try to inject into court rulings, Scalia relied on the text of the document to decide cases.
After eight years of anti-gun policies from the Obama Administration an open seat on the Court is a welcome opportunity to return to the principles of the Constitution.
That is also why its good news President Trump chose Neil Gorsuch, a current federal appellate judge on the United States Court of Appeals for the Tenth Circuit, as his nominee for the U.S. Supreme Court. Gorsuch is someone who can fill this critical void left by Justice Scalia.
Gorsuch has also followed an originalist interpretation of the Constitution during his legal career, having been appointed to the 10th Circuit Court of Appeals by President George W. Bush, and before that, serving in the Department of Justice.
A firm belief in adhering to the freedoms spelled out in the Constitution by our Founding Fathers has given Judge Gorsuch a steady hand, and made him a popular and approachable member of the 10th Circuit. Though he has only ruled on a few Second Amendment related cases, Gorsuch has proved himself to be a defender of gun rights.
He made his stance very clear when he wrote in one legal opinion that “the Second Amendment protects an individuals right to own firearms and may not be infringed lightly.”
With the current Court almost deadlocked on gun issues, any potential cases that come before the Supreme Court this year could have a make-or-break impact on Second Amendment rights in this country. If the Court decides to hear any gun related cases this year, it is critical that there be a majority of justices on the bench who believe in the Constitutional right to bear arms.
One potential case that could come before the Supreme Court this year challenges an individuals right to carry a gun for self-defense, and requiring them to prove to the government that they have a legitimate reason for doing so.
In 2014, Peruta v. California was decided by three judges on the 9th Circuit, who ruled that San Diego Countys policy of a gun owner needing a documented “good cause” in order to obtain a concealed carry permit was in violation of the Second Amendment.
However, the victory for the Constitution was short-lived, and the ruling was appealed. All 11 judges on the 9th Circuit were called in to rehear the case, and the ruling was overturned in 2016. The California Rifle and Pistol Association has petitioned the Supreme Court to review this case, and if their request is granted, Gorsuch will be a crucial vote. No citizen should need a government approved “reason” to carry a firearm it is already expressly stated in the Constitution.
An appeal has also been filed to ask the Supreme Court to hear a challenge to District of Columbia v. Heller, which in 2008 affirmed that it is a constitutional right to keep a gun in the home for self-defense. Justice Scalia wrote the opinion for that case, which was decided in a close 5-4 decision.
If the case is accepted by the Court, the justices will be asked to rule on a persons right to carry a gun outside their home for self-defense. With the decision in Heller being so close, it is critical that the Second Amendment have another advocate on the Court.
After eight years of anti-gun policies from the Obama administration, which sought to chip away at the right to bear arms, an open seat on the Court is a welcome opportunity to return to the principles of the Constitution. Instead of special interests and judges who attempt to shape public policy through court cases, Gorsuchs originalist and textualist viewpoint provides clear guidance uninfluenced by politics.
In the statement he gave following the announcement of his nomination, Gorsuch said, “Standing here, in a house of history, and acutely aware of my own imperfections, I pledge that if I am confirmed, I will do all my powers permit to be a faithful servant to the Constitution and laws of this great country.”
With all of the potential challenges to the Constitution in the coming years, Gorsuch provides a foothold on what could be a rocky path.
Tim Schmidt is the president and founder of the U.S. Concealed Carry Association,and may be contacted at Press@USCCA.com.