Month: December 2023

A California law that is scheduled to take effect on January 1 will impose a host of new restrictions on public possession of firearms. That may seem counterintuitive, since Senate Bill 2 is the state legislature’s response to the U.S. Supreme Court’s June 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which upheld the Second Amendment right to carry guns for self-defense outside the home. But California, like several other states with discretionary carry-permit policies that had to be revised because of Bruen, is attempting an end run around that decision by simultaneously making permits easier to obtain and much harder to use.

In Bruen, the Supreme Court said states may not require permit applicants to demonstrate “a special need for self-protection distinguishable from that of the general community.” Accordingly, S.B. 2, which Gov. Gavin Newsom signed into law on September 26, eliminates California’s “good cause” requirement, along with a similarly amorphous “good character” criterion (although it still disqualifies applicants deemed “reasonably likely” to pose a danger to themselves or others). By limiting the discretion of licensing authorities, S.B. 2 notes, those changes could have opened the door to “broadly allowing individuals to carry firearms in most public areas.” Deeming that outcome intolerable, legislators instead decreed that guns may not be carried in most public areas.

Copying the constitutionally dubious approach taken by states such as New York, New Jersey, Maryland, and Hawaii, S.B. 2 designates myriad locations as “sensitive places” where guns are not permitted. It also establishes a default rule that people may not bring guns into a business unless the owner “clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property.”

As a federal lawsuit challenging those rules notes, the law “turns the Bruen decision on its head, making nearly every public place in California a ‘sensitive place’ (in name only)” and “forbidding firearm carry even after someone has undertaken the lengthy and expensive process to be issued a concealed handgun license.” California’s gun-free zones  “include every park and playground, every hospital, all public transportation, any place that sells alcohol (which, in California, includes most gas stations and convenience and grocery stores), all land under the control of the Department of Parks and Recreation or the Department of Fish and Wildlife (with exceptions for hunting), libraries, churches, banks, and many more.” S.B. 2 “even transforms private businesses into ‘gun-free zones’ by default, imposing an unprecedented affirmative duty on private business owners to post signage to authorize people exercising an enumerated constitutional right to enter the property.”

As a result, says the complaint in May v. Bonta, “Californians who desire to exercise their enumerated right to carry are essentially limited to some streets and sidewalks (so long as those public places are not adjacent to certain other ‘sensitive’ places), plus a few businesses willing to post a ‘guns allowed’ sign at the risk of potentially losing other customers by doing so.” The law “creates a patchwork quilt of locations where Second Amendment rights may and may not be exercised, thus making exercise of the right so impractical and legally risky in practice that ordinary citizens will be deterred from even attempting to exercise their rights in the first place.”

Under Bruen, California will have to show that its restrictions are “consistent with this Nation’s historical tradition of firearm regulation.” In this context, the lawsuit says, that means “all law-abiding, competent adults” have “the right to carry firearms and ammunition for self-defense in all public areas that have not historically been considered ‘sensitive places’ or their modern analogues based on relevant history.”

Before S.B. 2 was enacted, federal judges had concluded that similar restrictions in New York and New Jersey failed the Bruen test. While California legislators were considering S.B. 2, a federal judge in Hawaii issued a temporary restraining order against several of that state’s location-specific gun bans. Three days after Newsom signed S.B. 2, a federal judge blocked enforcement of Maryland’s restrictions on firearms near public demonstrations, its ban on carrying guns in bars and restaurants that serve alcohol, and its presumptive rule against guns in other businesses open to the public.

Unfazed by those warnings, California is forging ahead with a policy that defies Bruen while pretending to comply with it. At a February 1 press conference announcing the introduction of S.B. 2, its supporters lamented the “radical Bruen ruling” and the resulting “flood of applicants” for carry permits while expressing the hope that the bill would mitigate the “disastrous effect of the Bruen decision.” As the complaint in May v. Bonta notes, Newsom himself called Bruen “a very bad ruling” and “used air quotes when discussing the ‘right’ to carry firearms outside the home, making his contempt for the Constitution clear.”

The post California Defies SCOTUS by Imposing Myriad New Restrictions on Public Gun Possession appeared first on Reason.com.

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A bipartisan group of lawmakers support limiting the ability of American citizens to invest in Chinese companies. A small group of Republicans, meanwhile, is advocating a more measured approach.

On November 20, over 40 U.S. lawmakers—including Sens. Marco Rubio (R–Fla.), Debbie Stabenow (D–Mich.), and Angus King (I–Maine)—signed a letter to the ranking members of both the House and Senate Armed Services Committees.

“We are deeply concerned,” the letter read, “about the potential national security threats posed by outbound capital flows and knowledge transfer to the United States’ adversaries,” namely China. “There is strong bipartisan consensus in both the U.S. Senate and the U.S. House of Representatives that Congress must act to address the national security threat posed by these outbound investments.”

To that end, the signers hoped the 2024 National Defense Authorization Act (NDAA)—the annual must-pass legislation that funds the various components of the national security apparatus, from paying soldiers to maintaining the nuclear stockpile—would include a provision that addressed their concerns.

The Senate passed its version of the NDAA in July, though it seems unlikely the House will pass the same version untouched. The Senate bill included Amendment 931, which the chamber accepted by a 91–6 vote. Under the terms of the amendment, any U.S. citizen or company investing in sectors like semiconductors, satellites, or artificial intelligence in a “country of concern” (like China) would have to provide written notification of the transaction to the Secretary of the Treasury at least two weeks in advance.

The bipartisan letter asked that the NDAA include language that addresses outbound investments in China “and ideally strengthen the language.” It mentioned Amendment 931 as well as Executive Order 14105, issued by President Joe Biden in August, which declared “a national emergency to deal with this threat”—that threat being the “advancement by countries of concern in sensitive technologies and products critical for the military, intelligence, surveillance, or cyber-enabled capabilities.”

The bipartisan letter noted, seemingly positively, that the executive order “goes beyond notification to consider prohibition of investment in some sectors.”

While the Treasury Department’s Committee on Foreign Investment in the United States (CFIUS) reviews investments made in the U.S. by foreign nationals, Biden’s executive order wants regulations going in the other direction, to potentially limit Americans’ investments in foreign countries. As Reason‘s Eric Boehm reported at the time, “There are only two other countries—South Korea and Taiwan—that have outbound investment screening systems.”

At the congressional level, the proposal is currently being held up by Rep. Patrick McHenry (R–N.C.), chairman of the House Financial Services Committee who briefly served as House Speaker Pro Tempore in October. As Bloomberg reported this week, “McHenry, who has long opposed broad investment restrictions in favor of an approach that targets individual companies,” is “effectively blocking” the measure’s inclusion in the House’s version of the NDAA.

In a September 27 letter to Treasury Secretary Janet Yellen, McHenry expressed relief that the “scope” of Biden’s executive order was “less broad than some had anticipated” but nevertheless felt the administration’s policy was “arbitrary, relies on baseless assumptions, and in certain places is incoherent.”

“If we oppose China’s state-run economy, we want more private investment – not less,” McHenry wrote. “Of those private investors, we want more of them to be Americans – not fewer.”

McHenry has a point. “We should be targeting specific companies rather than imposing blanket restrictions,” says Clark Packard, a research fellow at the Cato Institute’s Herbert A. Stiefel Center for Trade Policy Studies.

“Broadly speaking, I don’t think Americans should be investing in companies that make equipment used to surveil and further repress Uyghurs,” Packard added, pointing to an April Axios report that said cameras made by Chinese-owned surveillance firm Hikvision have been used to surveil Uyghurs, the Muslim minority population that has been subjected to a campaign of authoritarian repression by the Chinese government.

Outright bans on investment would be a bridge too far, even for a country like China with such a dismal human rights record, and could even backfire. Rep. Andy Barr (R–Ky.), who serves with McHenry on the House Financial Services Committee, tweeted that the proposed regulations “would inadvertently bolster [Chinese President] Xi Jinping’s goal to block American influence in the Chinese market.” Barr added, “It’s crucial we find the right balance in safeguarding American influence and intelligence without creating unnecessary bureaucracy.“

Last week, Ian Allen at Just Security wrote that the proposed rules could also lead other nations, including allies and trading partners, to adopt restrictions of their own, in turn. “Overly restrictive measures risk impediments to global technological advancement, blowback for domestic industries, and high administrative costs (which are projected to reach $10 million simply to start the program),” Allen warns.

Besides, there is reason to suspect that a more measured approach is warranted. “Foreign direct investment in China turned negative during the 3rd quarter of 2023 – for the first time on record,” Packard added. “In other words, more capital flowed out of China than into China in the 3rd quarter of 2023. Likewise, between 2014 and 2020, foreign direct investment from G7 countries into China fell by about half.” Industrialized nations are turning their backs on an increasingly illiberal China.

Just like targeted sanctions, Congress can designate certain companies that are particularly objectionable to be off-limits, while allowing Americans the freedom to otherwise use their money as they see fit. On the other hand, an all-encompassing ban as has been proposed by members of both major parties would be too aggressive and could even risk escalating tensions with the world’s second-largest economy.

The post Both Parties Agree: It's the Government's Business Whether You Invest in Chinese Companies appeared first on Reason.com.

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Retired Supreme Court Justice Sandra Day O’Connor passed away today at the age of 93. O’Connor is best known for being the first female Supreme Court justice and for her role as a moderate swing voter on the Court, on such issues as abortion and affirmative action. But she also played a key role in strengthening judicial protection for federalism and property rights.

O’Connor was appointed to the Court in 1981, as a result of President Ronald Reagan’s 1980 campaign promise to select a female justice. Her elevation broke a centuries-old glass ceiling and was a crucial milestone for gender equality in the legal profession.

O’Connor’s jurisprudence may be best known for her casting crucial vote to preserve (in modified form) Roe v. Wade and abortion rights. But she also did much to increase judicial protection for property rights and especially federalism.

In a series of rulings in the 1990s and early 2000s, O’Connor was a crucial figure in the Rehnquist Court’s “federalism revolution,” which did much to revive judicial enforcement of structural limits on federal government power, after a long period when judicial review in this field was extremely weak. Most notably, O’Connor wrote the Court’s majority opinion in New York v. United States (1992), which established the rule that the Tenth Amendment bars federal “commandeering” of state governments.

In New York and other opinions, Justice O’Connor emphasized the important point that the purpose of federalism limits on national power is not just to protect state governments, but also to protect ordinary people against the dangers of excessive centralization of power and homogenization of policy. O’Connor’s efforts in this field did much to change the Court’s jurisprudence for the better, helping to bury the idea that the judiciary has little or no role to play in enforcing structural limits on federal power.

The New York decision, like most of the Rehnquist Court’s other pro-federalism rulings, was initially seen as benefiting conservative causes. But in recent years, the anti-commandeering rule and other federalism precedents have been effectively used to protect liberal state and local governments, as well, most notably sanctuary cities.

Justice O’Connor also cast key votes pushing forward the Rehnquist Court’s efforts to strengthen protection for property rights under the Takings Clause of the Fifth Amendment. This, too, was a useful step in the right direction, breaking with the unjustified judicial  neglect of property rights in the New Deal era.

Fittingly, in her last year on the Court—2005—O’Connor wrote forceful dissents in Gonzales v. Raich—(a terrible federalism decision holding that Congress’ power to regulate interstate commerce authorizes a ban on the possession of marijuana that never crossed state lines or was sold in any commercial transaction)—and Kelo v. City of New London (a terrible property rights ruling in which a narrow 5-4 majority held that private “economic development” qualifies as a “public use” allowing the use of eminent domain). O’Connor’s compelling dissent in Kelo helped break the seeming consensus in favor of a very broad definition of “public use” and played an important role in generating the powerful reaction against the Court’s decision by state courts and legislatures. If, as is very possible, the Court eventually overrules or limits Kelo, O’Connor will deserve a substantial share of the credit.

In the field of affirmative action, O’Connor wrote two crucial 5-4 majority opinions restricting affirmative action in government contract (the Croson and Adarand cases), but also was the author of the 5-4 majority opinion in Grutter v. Bollinger (2003), upholding the use of racial preferences to promote “diversity” in higher education. It is not easy to reconcile her reasoning in the contracting cases with what she did in Grutter. In my view, she got it right in the former cases, but went wrong in the latter. If anything, the compensatory justice rationale for racial preferences that O’Connor rejected in the contracting cases is more compelling than the deeply problematic “diversity” theory. The Supreme Court has, of course, recently severely cut back on Grutter in SFFA v. Harvard, though the justices arguably stopped short of overruling it completely.

Justice O’Connor can be criticized for never clearly articulating an overarching judicial philosophy, such as Justice Scalia’s commitment to originalism, or Stephen Breyer’s to a version of living constitutionalism intended to promote democratic values. She drew on a range of different interpretive methods and rarely acknowledged potential tensions between them. On the other hand, her instincts and positions on most important issues were generally good ones. And she was an incisive and compelling writer. I hope and expect that she will be remembered not just for being the first female justice, but also for changing the Court’s jurisprudence for the better in several key areas.

The above only covers a few key parts of O’Connor’s legacy. There is much more that I cannot hope to do justice to in a relatively short post.

An interesting aspect of O’Connor’s life is that she dated future Chief Justice William Rehnquist when the two were law students at Stanford in the 1950s, and eventually rejected his marriage proposal. By choosing John O’Connor (another fellow law student) over Rehnquist, the young Sandra Day (as she was then called) unwittingly helped ensure she could one day be appointed to the Supreme Court. When Reagan chose her in 1981, Rehnquist was already on the Court (appointed by Richard Nixon). It probably would have been politically impossible for the president to appoint the wife of a current justice, given likely charges of nepotism and favoritism. The lesson for ambitious young lawyers and law students who aspire to become Supreme Court justices, is that you should try to avoid marrying anyone likely to be appointed to the Court themselves!

I extend condolences to any of Justice O’Connor’s friends, relatives, and former colleagues who may happen to see this post.

The post Sandra Day O'Connor, RIP appeared first on Reason.com.

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Police departments in Florida will no longer be able to hide the names of officers who shoot people under Marsy’s Law, a 2018 state constitutional amendment expanding rights for crime victims, following a Florida Supreme Court ruling Thursday.

The Florida Supreme Court held that “Marsy’s Law guarantees to no victim—police officer or otherwise—the categorical right to withhold his or her name from disclosure.”

The court’s decision to extend its ruling to not only police but all crime victims is broader than any of the interest groups involved—police departments and unions, transparency and media organizations, and victim rights groups—expected, and the Miami Herald reported that it is likely to lead to legislation being introduced to tweak the language of Marsy’s Law.

Although transparency advocates and civil rights groups warned that versions of Marsy’s Law were already being abused by police in other states to hide names of officers, Florida voters approved the amendment by roughly 62 percent and became one of six states that year to pass a Marsy’s Law amendment.

The law was named after Marsy Nicholas, a California woman who was stalked and murdered by her ex-boyfriend in 1983. Nicholas’ family has worked since then to pass laws expanding victims’ rights, first in California and then in several other states. 

The case before the Florida Supreme Court stemmed from two fatal police shootings in Tallahassee in 2020. After reporters filed records requests for the names of the officers involved, the Florida Police Benevolent Association filed a lawsuit against the city to prevent disclosure, arguing that the identities of the officers were confidential under a provision of Marsy’s Law that protects “information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.”

But the Florida Supreme Court disagreed. “One’s name, standing alone, is not that kind of information or record,” Florida Supreme Court Justice John D. Couriel wrote. “It communicates nothing about where the individual can be found and bothered.”

Opposing police secrecy were media organizations, civil rights groups, and even supporters of Marsy’s Law.

“When reviewing the conduct of an on-duty law enforcement officer who has used physical force, the right to privacy of their name must quickly yield to the public’s right to know,” Marsy’s Law for Florida told the Tallahassee Democrat in October.

But it yielded neither quickly nor graciously in Florida, where police departments frequently abused the vague language to hide incriminating or embarrassing information. For example, last year, the Sarasota Sheriff’s Office and state attorney’s office convinced a judge to issue a temporary injunction blocking a local newspaper from printing the names of officers who shot and killed a man during an eviction. (That order was quickly voided because, as Walter Sobchak reminded us, the Supreme Court has roundly rejected prior restraint.)

In another case last year, the Marion County Sheriff’s Office invoked Marsy’s Law to attempt to shield the identities of six jail deputies involved in the death of Scott Whitley, a mentally ill man who died during a violent cell extraction after being bumrushed, tased, and pepper-sprayed.

“Although the deputies clearly violated Scotty’s rights under the Fourteenth Amendment when they attacked and killed him, they claimed that they were instead victims of a crime perpetrated by Scotty and used Marsy’s Law in an effort to hide from accountability for their wrongdoing,” says James Slater, an attorney representing Whitley’s family. “We applaud the Florida Supreme Court’s ruling yesterday, which will put an end to this perverse use of the law.”

The post Florida Supreme Court Rules Police Can't Use Marsy's Law To Hide Names of Officers Who Shoot People appeared first on Reason.com.

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A yearslong battle over property rights in Seattle may soon have national implications as various groups pressure the Supreme Court to analyze the constitutionality of a law banning landlords from rejecting tenants based on their criminal histories.

In 2017, the city passed the Fair Chance Housing Ordinance, prohibiting landlords from conducting criminal background checks on potential renters, from using information on criminal histories to exclude tenants, and from increasing rents and security deposits for such applicants. The sole exception in the law pertains to prospective renters who have been convicted of a sex offense as an adult, but even then, landlords must convince the Seattle Office for Civil Rights that they have a “legitimate business reason” for denial.

The following year, the Pacific Legal Foundation (PLF) sued to end that law, arguing that the “unreasonable, overbroad, and unduly burdensome” regulation ran afoul of the 14th Amendment right to due process and that its block on analyzing public records violated landlords’ free speech rights.

Judge John C. Coughenour of the U.S. District Court for the Western District of Washington disagreed. In 2021, he sided with Seattle, writing that the law was “a reasonable means of achieving the City’s objectives and does not burden substantially more speech than is necessary to achieve them.”

Earlier this year, the U.S. Court of Appeals for the 9th Circuit reversed it—in part. “We conclude that the Ordinance’s inquiry provision impinges upon the First Amendment rights of the landlords, as it is a regulation of speech that does not survive intermediate scrutiny,” wrote Judge Kim McLane Wardlaw. “However, we reject the landlords’ claim that the adverse action provision of the Ordinance violates their substantive due process rights.” In other words, the government cannot bar landlords from looking at public records, the court ruled, but the judges left the ban on using that information to take adverse action.

Now, several advocacy groups—from the Buckeye Institute and the Manhattan Institute to the National Apartment Association and the Consumer Data Industry Association—are calling on the high court to weigh in.

“Instead of allowing political factions to inflict legalized trespasses on each other in the service of their own social and political desires, in a tit-for-tat that deprives all sides of their freedom to choose, the traditional rule is better by far: to allow property owners to decide for themselves who may and may not enter their land and on what conditions,” wrote Timothy Sandefur of the libertarian Goldwater Institute in an amicus brief to the Court. “This is not only the more efficient means of resolving disputes over what restrictions on property use are wisest—while simultaneously respecting diverse views on that subject— but it is also the means that is deeply rooted in this nation’s history and tradition.”

The political push behind Seattle’s ordinance had good intentions: People with criminal records indeed often have a harder time finding stable housing and employment. Yet as Reason‘s Christian Britschgi noted directly after the law passed, sensible policy requires more than simply wanting the best for your constituents. 

“It’s true that our current criminal justice system unnecessarily tars citizens with arrest records and criminal histories, and that those criminal histories make it more difficult to find jobs and housing,” Britschgi wrote in 2017. “But attempting to mitigate the effects of a broken criminal justice system by foisting extra costs onto landlords—who have quite understandable reasons to want to know about tenants’ criminal histories—is not the answer.”

One reason it is not the answer: The rule would backfire on many tenants—the people the law is supposed to help—as landlords compensate by having more strenuous requirements for the remaining legal rent criteria, like credit scores.

But it’s not just about a business’ bottom line. Take Chong and MariLyn Yim, a Seattle couple represented by PLF who hope the high court will hear their case. The Yims own a triplex in Seattle where they lived in one unit with their three children. To support themselves, they rented the two remaining units, using the screening process to ensure their tenants wouldn’t potentially endanger their children.

“Private rental property owners are not responsible for generalized adverse impacts of the criminal justice system, the high housing failure rates among ex-convicts, or high recidivism rates,” wrote PLF in their petition to the Supreme Court. “Seattle’s decision to place the burden of housing the most violent and dangerous ex-convicts on private owners violates due process.”

The post Seattle Banned Landlords From Rejecting Tenants Based on Criminal Records. Will the Supreme Court Step in? appeared first on Reason.com.

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