New York State Rifle & Pistol Association Inc. v Corlett looks like it will be a bloodbath.
At the very least, this case is almost certainly going to make it easier for people to carry guns with them in public. And at the worst, it could be used to gut any number of gun control laws across the country.
Concealed carry for everyone!
New York and seven other states make people show "good cause" to get a concealed carry permit. More than one-quarter of the US population lives in those states.
Concealed carry laws were some of the first firearms restrictions in the country and the New York law at issue in this case has been on the books since 1913. If you want to carry a gun in public for something like going to a shooting range, you can get a limited license to carry it specifically for that purpose. But to get an unrestricted concealed carry license, you have to "show a special need for self-protection distinguishable from that of the general community."
Now, the New York State Rifle & Pistol Association and two men who were denied concealed carry permits are arguing that "law-abiding citizens" have a god-given Second Amendment right to take their guns wherever they please — and the Supreme Court appears poised to agree with them. The crazies are represented by former George W. Bush solicitor general and go-to Republican lawyer Paul Clement.
The fact that the Court took the case at all indicates which way it's going to rule. The Second Circuit upheld the lower court's dismissal of Corlett and courts that get to pick and choose which cases to hear don't tend to agree to hear something just to say, "Great job! Well done!"
There's also the little matter of our current Court ...
Laws, judges, and guns
The text of the Second Amendment reads in full, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
A lot of people don't realize this, but the first Supreme Court case to recognize an individual right to bear arms wasn't decided until 2008. And, spoiler alert, it wasn't good.
Until recently, the controlling Supreme Court case was US v Miller, which held that the Second Amendment was a collective right, not an individual right, and looked at whether the law in question had "some reasonable relationship to the preservation or efficiency of a well regulated militia."
In DC v. Heller, the Supreme Court ruled for the first time that the Second Amendment protects the individual right to own guns. The Scalia-drafted opinion, while touting itself as "textualist," almost entirely ignored the part about the "well regulated militia." Striking down DC's handgun ban, the Court ruled that the Second Amendment gives individuals the right to own and use guns.
Justice John Paul Stevens, who served on the Court for 35 years, called Heller "the Supreme Court's worst decision of [his] tenure." And, in a memoir written after his retirement, Justice Stevens said that Anthony Kennedy, then the Court's swing vote, was able to get "some important changes" made to Scalia's original draft of the Heller opinion.
Justice Kennedy's hedging is what likely resulted in the passages in Heller that offered moderation, like the part about how "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms[,]" and other "presumptively lawful regulatory measures[.]"
Our new Court is unlikely to have any such qualms about obliterating our nation's gun control laws. At least two of Trump's three Supreme Court appointees have already written about how much they love guns. In 2011, on the DC Circuit, Justice Kegstand dissented in another case styled Heller v. DC, arguing that DC's gun registration requirement and ban on semi-automatic assault rifles were unconstitutional. And on the Seventh Circuit in 2019, Amy Bony Carrot declared in her Kanter v. Barr dissent that it was unconstitutional to prevent felons from owning guns — at least without "proving the felon is violent." These dissents put them to the right of even Scalia's opinion in Heller.
Yup, it's all bad.
I'm sorry. I have no glimmer of hope to offer with this one. Unless Democrats magically grow spines and do a little court-packing, there is no way to save us from the horrors this Supreme Court is going to make a reality.
The Heller and McDonald opinions, while terrible, at least included some caveats. With no voice of moderation left on the right side of the SCOTUS bench, there may be no end to what formerly "presumptively lawful" gun control laws this Court obliterates.
But hey, maybe it will be fun to see an associate justice of the Supreme Court stand behind the bench while shouting the words "I LIKE GUNS, OKAY?!"
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Welcome to the Supreme Court's decision in Jones v. Mississippi.
Yesterday, the Supreme Court decided Jones v. Mississippi, a case about sentencing children to life in prison without the possibility of parole.
Authored by none other than Justice Brett Kavanaugh, the majority opinion guts existing precedent on juvenile life without parole and allows states like Mississippi to keep sending children to prison for the rest of their lives, no matter how young they were at the time of the crime and no matter what they do to rehabilitate themselves.
But Brett Kavanaugh, you ask? Wasn't he ... yes.
Like Sonia Sotomayor says in her dissent,
The Eighth Amendment does not excuse children's crimes, nor does it shield them from all punishment. It does, however, demand that most children be spared from punishments that "give no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope."
Jones and other juvenile offenders like him seek only the possibility of parole. Not the certainty of release, but the opportunity, at some point in their lives, to show a parole board all they have done to rehabilitate themselves and to ask for a second chance. Jones recognizes that the parole board may ultimately decide he must spend his entire life behind bars. He simply requests that the State not make the judgment at the outset that he never will be fit to reenter society. The Eighth Amendment requires that most juvenile offenders be given this small hope for some years of life outside prison walls.
How we got here
To fully understand yesterday's opinion, first, we need to go back in time.
Starting in 2005, a series of Supreme Court decisions found that the Eighth Amendment's prohibition on "cruel and unusual punishment" prohibited certain extreme sentences for children. For a while, things continued to move in the right direction.
In 2005, the Court determined in Roper v. Simmons that the death penalty was unconstitutional for people who had been under 18 at the time of the crime.
In 2010, Graham v. Florida banned juvenile life without parole in all cases except homicide.
In 2012, SCOTUS ruled in Miller v. Alabama that mandatory sentences of life without parole for juveniles were unconstitutional.
And in 2016, Montgomery v. Louisiana held that Miller should be applied retroactively (that is, children who received mandatory life without parole sentences before Miller was decided were entitled to new sentencing hearings).
Brett Jones was convicted of murdering his grandfather. He had just turned 15 at the time of the crime.
When Jones was convicted, Mississippi had a mandatory sentence of life without parole. After Miller was decided, the Mississippi Supreme Court ordered Jones a new sentencing hearing, so a judge could consider Jones's young age at the time of the crime. The sentencing judge, however, kept the sentence of life without parole in place. And now, the Supreme Court has upheld it — and made it even harder for kids to get a fair process in the future.
All of the cases from Roper to Montgomery emphasize that juveniles are, you know, children. Children are less culpable than adults, their brains aren't fully developed, and they can almost always be rehabilitated. Both Miller and Montgomery specifically emphasized that sentencers must distinguish "between the juvenile offender whose crime reflects unfortunate and transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."
But now, we're going backwards again. This opinion makes it much easier for states to send children to prison for the rest of their lives, with no hope of being released.
So that's awful
The only sanity in yesterday's decision comes from the Court's #BestJustice, Sonia Sotomayor, who dissented. (Sotomayor's dissent was joined by the Court's other libs, Breyer and Kagan.)
The majority, says Sotomayor, "distorts Miller and Montgomery beyond recognition." "Miller," writes Sotomayor, "held that juvenile LWOP sentences must be rare because it is only 'the rare juvenile offender whose crime reflects irreparable corruption.'" Rather than actually follow this precedent, argues Sotomayor,
In the Court's view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of those rare children whose crimes reflect irreparable corruption. Even if the juvenile's crime reflects unfortunate yet transient immaturity, he can be sentenced to die in prison.This conclusion would come as a shock to the Courts in Miller and Montgomery. Miller's essential holding is that "a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect irreparable corruption."
Sotomayor also points out that the vast majority of children sentenced to life without parole are children of color — and the racial disparity in sentencing has only increased since mandatory life without parole for children was banned. Before Miller, 61 percent of children sentenced to life without parole were Black; since Miller, 72 percent of children sentenced to life without parole were Black. Because, in America's criminal justice system, anything punitive that is discretionary will be disproportionately applied to Black people.
As for Mr. Jones, writes Sotomayor,
Today, Jones is 31. His time spent in prison has now eclipsed the childhood he had outside of it. Jones should know that, despite the Court's decision today, what he does in life matters. So, too, do the efforts of the almost 1,500 other juvenile offenders like Jones who are serving LWOP sentences. Of course, nothing can repair the damage their crimes caused. But that is not the question.
The question is whether the State, at some point, must consider whether a juvenile offender has demonstrated maturity and rehabilitation sufficient to merit a chance at life beyond the prison in which he has grown up. For most, the answer is yes.
Yup. It's all bad.
Get used to the horror show, folks. This is what a 6-3 fascist majority looks like.
But hey, I guess we should at least be relieved they didn't just reinstate the death penalty for children or something?
Happy Friday! As payment for this depressing Friday afternoon post, here is a video of my foster kittens.
Here's the opinion. Sotomayor's dissent starts on page 34.
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This is just very good 'lawsuit.'
Declaring that Dominion is the government, MyPillow's suit claims that Dominion is doing "lawfare" and cancel culturing its First Amendment rights. (Yes, this is basically what the complaint argues. No, this is not a thing.)
This lawsuit, says MyPillow, is really on behalf of the entire public square and marketplace of ideas against the oppressive tyranny of the voting tech manufacturer.
Dominion is using the legal process as a weapon to suppress free speech. In contrast, MyPillow brings this action to open debate and expand free speech. Indeed, MyPillow would move this entire debate to the public square for a full airing of all facts and opinions on the subject. This lawsuit is brought in support of the marketplace of ideas and to remedy the grave harm that has been suffered by MyPillow as a result of Dominion's suppression of speech and attacks on the Company.
Sadly, neither the public square nor the marketplace of ideas is named as a plaintiff.
MyPillow's suit repeatedly claims that it was Mike Lindell, and not MyPillow, who liked to flip out about "stolen elections" and something about dead Hugo Chavez. Which, fair enough. Except for the fact that the entire complaint is about why Lindell's Dominion conspiracy theories are true.
The lawsuit repeatedly claims it's vindicating MyPillow's free speech rights ... but also says MyPillow isn't engaging in speech that needs protection.
Amazingly, the lawsuit goes straight from "MyPillow didn't say that!" to "MyPillow's right to say that is being trampled!" Claiming that Dominion is "a governmental actor," MyPillow alleges that Dominion "allowed manipulation or changing of votes in the 2020 election, as well as suppressed public debate about the election which deprived MyPillow of its rights."
Seemingly without irony, most of the complaint's 51 pages are then spent rehashing Lindell's conspiracy theories about the election.
Evidence that Dominion's voting systems actually were hacked in the 2020 election continues to accumulate. Questions and concerns are growing, not subsiding. The adverse impact of electronic voting systems on the 2020 election was significant. A prudent, robust democracy cannot afford to ignore this evidence if it hopes to survive.
But now Dominion is doing lawfare! FOR SHAME!
In response to Lindell's exercise of his First Amendment free speech rights, Dominion launched its lawfare campaign against both Lindell and MyPillow.
And maybe Dominion being the government would be okay in places like Venezuela, but not here in the US of A!
Dominion's and its lawyers' widespread intimidation tactics of ordinary citizens may be routine in a Third World country—but they are abhorrent in America.
America, fuck yeah!
But, I mean, how can you NOT love a complaint that invokes Joseph McCarthy ...
Harkening back to some of the worst days in our history, Dominion has taken a page out of Joseph McCarthy's playbook by creating a blacklist for public scorn leading to both reputational and economic destruction. From high-powered news organizations to regular citizens and private home-bedding companies, no one is safe.
... more than once ...
Dominion's campaign descends from a long and sad history in this country, the McCarthy era in which lives and organizations were destroyed, and families torn apart, for being labeled a Communist. Just as during that era being associated with a suspected Communist could end a professional career, so too today, those who, like MyPillow are merely associated with a critic of Dominion and the integrity of the 2020 election, face expulsion from public life in large parts of America.
... for the proposition that a private company filing defamation lawsuits is the same as the blacklists in the 1940s and 50s?
Oh, and can someone ask Lindell if he's fighting for the free speech of communists? tyia.
MyPillow has lost numerous major customers who ended their long-term relationships to sell MyPillow's product line due to Dominion's highly publicized attacks.
Oh yes, I am absolutely certain that MyPillow is losing customers because of Dominion and not because of its unhinged CEO not backing down even after he helped incite an insurrection and then tried to blame it on "antifa."
As the result of Defendants' actions, and as expected and intended by them, Plaintiff suffered the loss of substantial property interests, including, but not limited to, loss of long-standing business relationships, loss of supplier contracts, and loss of access to promotional access in media.
Plaintiff was not provided due process in connection with the loss of its property interests caused by Defendants.
Defendants' reprisal actions were motivated, at least in part, by MyPillow's and its CEO's exercise of their free speech rights protected under the First Amendment and, as applied against the states and their political subdivisions and agents, the Fourteenth Amendment.
Nope. Dominion is still not the government.
Here is the complaint, in all its glory:
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Principles, people. We've got 'em, remember?
"I will invoke my Fifth Amendment privilege today."
Other than a few video clips taken immediately after he killed George Floyd, those are the only words the public has heard Derek Chauvin speak since he killed George Floyd on May 25 of last year.
As the defense rested after nearly two weeks of expert and witness testimony, Chauvin invoked his constitutional right to remain silent. This was immediately met with terrible takes — including from people who should know better — about how Chauvin not taking the stand proves his guilt.
And ... NO NO NO NO NO NO NO NO NO.
Invoking your constitutional rights is NOT an admission of guilt.
Let's get this straight:
Derek Chauvin should be convicted of murder because he tortured George Floyd to death. He should NOT be convicted of murder because he invoked his Fifth Amendment right to remain silent.
Constitutional rights are a good thing! And invoking your rights in a criminal proceeding should never be presumed to be wrong.
Most people know the words "plead the Fifth" in terms of clearly guilty villains on criminal procedure TV shows invoking it to save their own asses. (Don't get me started on how shows like "Law & Order" prejudice people against criminal defendants and also the very existence of civil and constitutional rights.) What most people don't know is where the Fifth comes from.
The Fifth Amendment's protection against self-incrimination didn't magically pop in out of nowhere. It was included in the Bill of Rights to stop the government from torturing people until they confessed. In 15th, 16th, and 17th century England, forced confessions, torture, and coercion were the norm. Anyone who refused to take an oath swearing to their innocence was presumed guilty.
When you look at the right against self-incrimination in the context of history, it seems like a no-brainer. But the sad fact is that Americans are nearly universal in their belief that invoking the Fifth Amendment indicates guilt, at least when they don't like the person who is being prosecuted. Jurors in criminal trials are instructed not to take pleading the Fifth as a sign of guilt — but they still do.
That shouldn't be a thing! The Fifth Amendment is something Americans should care about and fiercely protect. No criminal defendant should be expected to take the stand to defend himself. It is integral to the American system of justice that the burden is on the government to prove its case beyond a reasonable doubt — it is not the duty of the defendant to prove himself innocent.
Like the Supreme Court held in Ohio v. Reiner, "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."
There are so many reasons for a criminal defendant not to take the stand. Criminal defense lawyers will tell you that a defendant testifying at his trial is "almost always a bad idea." Taking the stand is more likely to hurt than help. You open the door to the prosecution to cross-examine you and introduce evidence that would otherwise be inadmissible. You might be afraid to testify — and jurors are known to read guilt into body language that could just show discomfort with testifying. You have to be someone the jury can empathize with while also not being "too emotional." It's a really hard line to walk.
I have watched the video of Derek Chauvin brutally killing George Floyd, putting his weight on Floyd's neck for nearly 10 minutes, until the life left Floyd's body. He should be convicted of murder. But he should be convicted because of what he did, not because he chose not to testify.
Oh, and while I'm up here on my soapbox, can we also stop talking about the terrible things we want to happen to Chauvin in prison? That shit is really disgusting. It is far from okay that American prisons are torture factories. Rape and violence should not be part of anyone's incarceration. I don't care what they did.
Chauvin's trial is in recess until Monday, when both sides will present their closing arguments (which are a summary of their case and can't include new evidence). Deliberations are set to begin Tuesday.
Hopefully, justice will be served.
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