1. What keeps an indivisible statute from becoming a divisible statute? (And vice versa?)

My point is — doesn’t the use of a modified categorical imperative always become a lively, almost X-factor when being used in relation to a state statute?

And I think Breyer agrees with me when he says –

A State supreme court that says the word ‘weapon’ in the statute means knife, ax, or gun. Now, are those three ways of committing a crime? Or are they three crimes, each with a separate element? That is — we’d need not only St. Thomas Aquinas, but I mean, we’d need those angels dancing on the head of a pin.

Scalia’s and Horwich’s comments later in the proceedings seem to match my concern with the MCA, too. (See page 50.)

2. How was everyone’s New Year?

3. I kind of like how Breyer doesn’t really want to be bothered with the case — that — metaphysics aside — the case at hand really doesn’t warrant SCOTUS eyeballs, and that the numbers involved in the case — 500 relevant burglaries in California — makes it a state-oriented, burglary statute.

4. Apprendi really wasn’t written with immigration status in mind, was it?

5. But then that means that the argument being made here — that a divisible statute constitutes a violation of Apprendi (and that since you’re taking a divisible statute to someone’s immigration status, it has to go back to a jury) — doesn’t quite fit. (The line “Other than the fact of a prior conviction” is the big torpedo to the argument here, since the crime the man-in-question was convicted of affects his immigration status.)

6. Mr. Horwich seems to be more interested in having a conversation with the Justices than framing an argument.

7. A nice exchange —

Scalia: Qui tacet consentire videtur. Why don’t you quote the maxim?

Horwich: Because your Latin is better than mine.

8. This is the LaFave they’re talking about. You can read some of his SSRN work here.

That a man can pivot from defending judicial review to float the idea of abandoning the constitution altogether is enough of a head scratcher to give one a premature bald spot. Seidman’s own theory of “constitutional unsettlement” seems to back my basic point of reply, too (though I know I’m cheekily skipping past the idea that courts exist to prolong conflict and, therefore, create a common community as a result, enticing those on the ‘losing side’ to continue the argument): law ideally concerns thoughtfulness, so if someone tried to — as Seidman puts it in his op-ed — shut down the debate concerning a possible war with Iran by invoking constitutional powers, the thoughtfulness of law would churn to life. Look at Hamdi v. Rumsfeld, for instance, or Arlen Specter asking the Supreme Court to look at the lawsuits brought by the ACLU against warrantless wiretapping. Political forces and those interested in power aren’t foreign to this landscape, but — barring a clever idea — accepting them doesn’t seem to be too harrowing a prospect either.

It’s almost hard for me to tell if Seidman is positioning himself as a textualist, attacking textualism by example, or shimmying back and forth between textualism and a kind of aggressive libertarianism. In exploring the history of ignoring/disobeying the constitution, he cites the Alien and Sedition Acts, the Louisiana Purchase, the notion that the constitution protected slavery, FDR’s expansion of federal powers, Miranda v. Arizona, Roe v. Wade, and others.

He also says that Robert H. Jackson found that Brown v. Board of Education deviated from the constitution (“ … he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution …”), but seems to omit that Jackson said this in an unpublished opinion, as well as the precedent Warren cited in the published, 9-0 decision — Missouri ex rel. Gaines v. Canada, Sipuel v. Oklahoma, Sweatt v. Painter, and McLaurin v. Oklahoma State Regents.

The parts of the constitution he’d keep include “freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important … how long the president’s term should last or whether Congress should consist of two houses,” but — by implication — that means that legislative authority would be up in the air, as well as the age by which someone can be elected to the House of Representatives (six! fourteen!), whether or not taxes should be levied, how many Representatives each state should have, how many Senators each state should have, who calls an election and when, whether or not we should have post offices, roads, a currency, a navy, or an army, whether or not a state in the union can enter into a treaty and coin money of its own, or whether it’s legal or not for someone to set up a new state within an existing state. (“No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation,” he writes, but an inference this easy to make is telling enough.)

Seidman claims that “the deep-seated fear that such disobedience would unravel our social fabric is mere superstition …,” citing the UK and New Zealand as ideal examples of constitution-free countries and that things are a-okay and jim dandy over there because of “longstanding traditions, accepted modes of procedure and engaged citizens,” which are three things we’ve never heard of in this country, what, with lawyers building upon past cases, newspapers and blogs, people reading those newspapers and blogs, 4th of July celebrations kicking off in 1876, groups like the EFF, the ACLU, the AFL-CIO, the AARP, Emily’s List and others advocating for one cause or another, teachers holding Socratic dialogues in undergraduate and graduate classrooms (which really kicked into gear at law schools when Brandeis showed up at Harvard, if I’m recalling correctly), blues becoming rock and roll, New Orleans music at the turn of the century evolving into jazz, and that strange phenomenon where children become adults and have children of their own.

The essay seems to finish in a series of quick self-contradictions — that even though the constitution is “a place for discussion, a demand that we make a good-faith effort to understand the views of others,” it is also a “bondage” from which we must ‘extricate ourselves’; but then it isn’t “a place for discussion,” but, rather, “a poetic piece of parchment” that hasn’t preserved our political stability, and that that “place for discussion” is — instead — thanks to our “entrenched institutions and habits of thought,” some of which — of course — were set up by the Constitution of the United States. But the United States doesn’t have “entrenched institutions” — that honor belongs to the United Kingdom and New Zealand, which don’t have a constitution, which is why we shouldn’t have a constitution — except for a few things here and there, though — Seidman assures us — “I harbor no illusions that any of this will happen soon.”

Though the consensus view concerning fixing Congress seem to hinge on the thesis advocated by Lawrence Lessig, I will say this — Seidman’s take is the first of its kind I’ve encountered, and though I began writing this in a fit of sarcasm, I’ve now slid to a kind of amused, benign tolerance. Maybe the end of the year has put me in a good mood. Maybe it’s the fact that Bowie’s “Suffragette City” just came on over the speakers.

Maybe it’s something else entirely.

For a court that demonstrated such reasonableness in considering same-sex marriage, the turn in Melissa Nelson v. James H. Knight DDS, PC and James Knight is baffling.

Let’s work our way through the decision itself. Here’s the crux of the argument made by the woman in question —

She argues that any termination because of a boss’s physical interest in subordinate amounts to sex discrimination: “Plaintiff’s sex is implicated by the very nature of the termination.” Second, she suggests that without some kind of employee misconduct requirement, Dr. Knight’s position becomes simply a way of enforcing stereotypes and permitting pretexts: The employer can justify a series of adverse employment actions against persons of one gender by claiming, ‘My spouse thought I was attracted to them.’ Third, she argues that if Dr. Knight would have been liable to Nelson for sexually harassing her, he should not be able to avoid liability for terminating her out of fear that he was going to harass her.

The third point seems to fit within Title VII of the Civil Rights Act of 1964 (see ‘explicitly or implicitly,’ which could just as well read ‘demonstrably or tangentially’), which says —

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

But the court takes a different approach, arguing that —

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet even taking Nelson’s view of the facts, Dr. Knight’s unfair decision to terminate Nelson (while paying her a rather ungenerous one month’s severance) does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson.

Which — what? Does Dr. Knight find the replacement less attractive? Is there a bright line test for sexual behavior that hasn’t yet been made known to the public at large? Did the wife and the two pastors cited in the decision sign off on the new hiring?

The court continues, citing a case wherein it was stated that —

[W]e do not believe that Title VII authorizes courts to declare unlawful every arbitrary and unfair employment decision.

So if it’s arbitrary and unfair and it isn’t Title VII, does it still count as wrongful termination?

The court goes on to cite a case in which an employer fired an employee because he was jealous of the relationship she had with another employee, a case where an employer fired an employee to hide a past sexual relationship from his wife, and a case where an employer fired an employee after the employee terminated their sexual relationship, though — by citing these cases — the court made me think of Beckford v. Department of Corrections (which I’ve seen cited as Beckford v. Florida) and other cases similar to it, where the legal emphasis seems to be on creating a harassment-free workplace.

What are your thoughts?

The Justice Department announced today that it has reached an agreement with the State of New Hampshire that will allow for all 10 of the towns in that state that are covered jurisdictions under the special provisions of the Voting Rights Act to bail out from coverage by these provisions.

Now — what does that mean? Is Holder trying to update the usefulness of Section 5, given that places like New Hampshire and Michigan are covered when places likes Ohio, Florida, and Voter ID-states aren’t? And how does it square with the speech Holder gave, where he said, simply —

All eligible citizens can and should be automatically registered to vote.

– and where does that leave Section 2 and the possible future of the ‘Pocket Trigger?’

Questions, questions, questions.

The NRA just wrapped up a “press conference,” wherein Wayne LaPierre said — and I quote –

Politicians pass laws for Gun-Free School Zones. They issue press releases bragging about them. They post signs advertising them.

And in so doing, they tell every insane killer in America that schools are their safest place to inflict maximum mayhem with minimum risk.

…

There exists in this country a callous, corrupt and corrupting shadow industry that sells, and sows, violence against its own people.

Through vicious, violent video games with names like Bulletstorm, Grand Theft Auto, Mortal Kombat and Splatterhouse. And here’s one: it’s called Kindergarten Killers. It’s been online for 10 years. How come my research department could find it and all of yours either couldn’t or didn’t want anyone to know you had found it?

…

With all the foreign aid, with all the money in the federal budget, we can’t afford to put a police officer in every school?

The internet — in reply — said this –

NRA “shield” plan, if taken at all seriously, means TSA everywhere, forever.

— davidfrum (@davidfrum) December 21, 2012

“You are suggesting we put armed government agents in every school in order to preserve our right to defend ourselves from tyranny?”

— David Ryan (@CaptDavidRyan) December 21, 2012

Just FYI, our violent video games and movies are also widely consumed in Europe, where gun-related homicide rate a fraction of America’s.

— Max Fisher (@Max_Fisher) December 21, 2012

The surest way to prevent gunmen killing school children is to abolish schools. #NRAideas

— IanVisits (@ianvisits) December 21, 2012

RT @rkref: NRA: Guys, all we need is armed predator drones, landmines under playgrounds, moats filled w/molten lava arnd school perimeters.

— Jodi Jacobson (@jljacobson) December 21, 2012

RT @rosierifka: @joenbc You know who had armed guards? Columbine High school: bit.ly/TGFHUD …

— Don Millard (@OTOOLEFAN) December 21, 2012

maybe we should ban children. that way they won’t get shot.

— brian braiker (@slarkpope) December 21, 2012

The case for hiring more cops is very strong. The case for putting them in elementary schools is not.

— Ezra Klein (@ezraklein) December 21, 2012

Former RNC chair Michael Steele calls #NRA statement “very haunting and very disturbing.” bit.ly/WAVeK0 h/t @stacygreen

— Jim Roberts (@nytjim) December 21, 2012

RT @chrismurphyct: Walking out of another funeral and was handed the NRA transcript. The most revolting, tone deaf statement I’ve ever seen.

— Brett LoGiurato (@BrettLoGiurato) December 21, 2012

UGH RT @gawker There was a mass shooting incident in Pennsylvania during the NRA press conf abt the need for more guns gaw.kr/y0VOHnm

— Catherine Kustanczy (@catekustanczy) December 21, 2012

Let’s get to it: the decision last week immediately cites Supreme Court precedent — DC v. Heller and McDonald v. Chicago. It says that they’re of the opinion that the second amendment said ‘keep and bear’ arms for a reason — that there is a constitutional right “to carry a loaded gun outside the home.”

I’ve seen one source say that 300,000 muskets were used in the Revolutionary War — this being when there were 2.5 million people in the country. There are 300 million guns in the country today, which — in part — makes manifest subcultures of the kind described to Josh Marshall in an e-mail, wherein those plugged into the “tactical reality” “speak of the ‘tactical’ as a fait accompli; as a kind of apodictic fact: as something that everyone — the customers, interlocutors, fellow forum-members — experiences on a regular basis, in everyday life.”

The decision from the 7th Circuit goes on to discuss the need to protect one’s self from Indians on the frontier of the wild west. On page six, they speculate that had a law been designed to prevent people from being frightened by weapons — based on Blackstone citing the Northampton Statute (as well as the fact that a man tried under the Northampton Statute in the 1600’s was acquitted) — it would’ve been a fine and fair law.

On page seven, there is a claim that strikes me: “But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid.”

Do we really want to amplify the claimed social contract seen in the second amendment to such a point? Why would we want an arms race on every street corner? Why would we want an arms race in every neighborhood? Why would anyone want to consider — as an automatic point in their person-to-person relations — a gun? Instead of “arming teachers” — which, Jesus Christ — wouldn’t it be better to keep the guns as far away from children as possible? Guns aren’t nuclear deterrence writ small. Are we really going to stand up and say that this country needs 600 million guns, not 300 million? 900 million? 1.2 billion? In ten years time, will we say that no American family can live without five guns per household, following this awful kind of Gillette three blade, four blade, five blade mentality? The ad absurdum can only go so far, and we got there in Connecticut.

It says something about the nature of our youth that they can be so optimistic when confronted with something like this — and not only am I thinking of the young man who said he knew karate President Obama cited on Sunday night, but the kids parents worrying quoted on twitter, saying they were ‘fine’ and ‘nothing like that could happen here,’ too — but it also says something when thrown up against the Sunday shows, and it’s here I’m thinking of Rep. Jason Chaffetz, who placed the blame on video games and movies (which is pretty much perfectly akin to placing blame on Coney Island and Vaudeville), and George Will, who seemed to forget that the Firearms Act of 1997 came into existence after Dunblane, not before.

On page nine, they quote John Jo Donahue: “Based on available empirical data … we expect relatively little public safety impact if courts invalidate laws that prohibit gun carrying outside the home, assuming that some sort of permit system for public carry is allowed to stand.”

Given the hemming and hawing concerning the data in the text, it’s a curious position to take, and I’d like to see more data, especially considering that Japan has 0.07 gun deaths per 100,000 and has made it illegal for a citizen to hold a gun in their hands unless they have a license.

At the end of page 10 and page 11, Mark Duggen’s study “More guns, more crime” is highlighted and praised.

On page 12, there is this –

Concealed carriage of guns might increase the death rate from assaults rather than increase the number of assaults. But the studies don’t find that laws that allow concealed carriage increase the death rate from shootings …

Am I reading this right? There aren’t more shootings. There might be more assaults, but who knows?

On page 13, there is this –

Anyway the Supreme Court made clear in Heller that the right to bear arms isn’t going to depend on casualty counts. If the mere possibility that allows guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way …

On page 14, there is this –

In Skoien we said that the government had to make a ‘strong showing’ that a gun ban was vital to public safety — it was not enough that the ban was ‘rational.’

How is ‘rational’ not a ‘strong showing?’

On page 17, the court floats the possibility of private institutions banning guns from their premises as an alternative path of gun control. It mentions New York State having potential gun owners demonstrate cause for owning a gun, which might be plausibly akin to the idea of making getting a gun similar to getting a driver’s license in this country.

Why the court cites Lawrence v Texas on page 18, I’ve no idea. If you want to say the right to privacy is established outside your home, say it; don’t invoke the specter of having sex outside the home, especially if there’s the chance that some smart ass Will Hunting type will cite it in a misdemeanor charge years down the line. (And the Judge just says that the ‘interest’ in having sex inside the home is greater than outside the home.)

And the idea of having private institutions ban firearms from their premises comes to a contradictory head when the decision cites Judge Wilkinson, who writes that “there may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation.”

The dissent speaks of the Statute of Northampton and says that the idea of saying that Blackstone was speaking of fear of seeing a weapon as “strained.” Any weapon taken out into the public is potentially frightening to the public not because it’s concealed or visible, the Judge writes, but because it’s a weapon.

The best arguments being floated right now seem to strike at a cross between a Dunblane-styled amnesty, setting up a driver’s license process, setting up a Mother’s Against Drunk Driving shame culture, banning assault rifles and upping funding to mental health programs.

Which — when you had one person running for President forget that the ban on assault weapons had passed, when you have lawyers arguing over a Statute passed in the 1300’s — is better than nothing.

*

Extra Credit: Jonah Goldberg and James Fallows get into a good point/counterpoint over at The Atlantic. Garry Wills speaks of the second amendment.

A modified categorical approach is a way for Judges to examine a decision and see if it violated a statute that many contain implicit or explicit items. If one theoretical law says you can’t smoke in the car or the house and another law says you can’t smoke, a modified categorical approach could be used to see if you broke a law smoking on your way from the car to the house.

A problem arose when the California state definition for burglary did not fit the federal definition. In California, you can burgle a place open to the public; under federal law, burgling a place open to the public is a specificity that does not exist.

But it might, and that’s where the modified categorical approach comes in and why it’s reached the Supreme Court.

For some courts, the MCA applies only to divisible statutes, and — to the best of my understanding — it seems that a statute is divisible if the crime under consideration affects immigration status if it’s applied to immigration status, but does not if it isn’t, which — if true — makes the modified categorical approach a curious standard of review.

Before the building that houses those nine robes today was built, we had the Merchants Exchange Building in New York City and Old City Hall in Philadelphia as the ‘seat’ of the court. (Though there’s the circuit riding Jay and co. had to do for a while, but I’m jumping ahead.)

West v. Barnes was the first case heard by the Supreme Court. It’s heard on August 2nd. Mozart is to die at the beginning of December. The Bill of Rights has yet to be ratified.

John Jay’s appointment to Chief Justice served — in the words of Walter Stahr — as a way to evenly split Hamilton and Jefferson. With Jay on the bench, Jefferson had somewhere appropriately senior to go (the State Department) and Hamilton could head to the Treasury.

Quoting Stahr –

The Supreme Court met for the first time on February 1, 1790, in the Exchange Building in New York City. The ground floor of this brick was an open public market, cleared for the day to keep down the noise, and the upper floor a courtroom, ‘uncommonly crowded’ that day with state judges, members of the bar and others.

The first case they heard — though it should be reemphasized that the above-quoted scene was merely the first day they met, not the day of the first case (two Justices couldn’t get there in time, so a group — including the Justices — toasted the eventual evening away after the day’s session had come to an end) — concerned an attempt to evict a landowner from his farm.

The man bringing the suit was claiming William West couldn’t pay off his mortgage using paper currency. David Barnes wanted silver or gold. The Court dismissed the case because the appeal that brought Barnes before the Supreme Court had been issued from a Rhode Island Court, not the Supreme Court itself. This set in motion what would eventually become the Judicial Act of 1792.

Meanwhile — Jay quipped he could find his way across the country by the light of his likeness burning in effigy. (The Jay Treaty wasn’t a popular treaty.)

The other justices at the time included James Wilson, William Cushing, John Blair Jr, and John Rutledge.

There are bits in the entirety of Robert H. Jackson’s opening statement at Nuremberg — a portion of which is excerpted above — that remind me a bit of Roberto Bolaño’s The Part About the Crimes. After I finished reading Jackson’s opening statement, I was convinced that Bolaño had read it, too, and even though he didn’t do any of the obvious winks towards Light in August the way he did in The Savage Detectives, I still remain convinced to this day and this evening that he did.

Jackson was born in 1892, died in 1954, and — over the course of his life — followed an arc that took him from IRS legal counsel to Solicitor General to Attorney General to Supreme Court Justice before he helped shape modern international law. He never graduated law school.

Roosevelt liked him a lot, as did Brandeis (“I wish he could be solicitor general for life.”) Roosevelt even floated the idea of Jackson running as his successor before deciding on a third term. Beside mentioning the damn foolish hackery associated with hiding one’s keys, it should be noted that he’s considered a hero by Luis Moreno-Ocampo, and he’s regularly cited by Fatou Bensouda.

Instead of a President, though, we have a legacy of cases against Andrew Mellon, upholding the Tobacco Inspection Act of 1935, the Agricultural Adjustment Act of 1938, and the Revenue Act of 1936. He joined the Warren opinion on Brown vs. Board of Education. He wrote the opinion for West Virginia Board of Education v. Barnette, as well as — get ready — several others.

There’s a point to be made here about the balance between rhetoric, law, and the times, but I’m not quite sure what it is yet.