Category: reason

Making Sense of the Limited Cert Grant in NYS Rifle & Pistol Association v. Corlett

One week ago, I lamented about Heller‘s sad bar mitzvah. On April 26, the Court denied review in three Second Amendment cases concerning the rights of non-violent felons. And the Court had twice relisted NYS Rifle & Pistol Association v. Corlett. At the time, I assumed the Court had denied review, and Justice Thomas was writing yet another dissent from denial of certiorari.

Once again, the shadow docket threw a curveball. This morning the Court granted cert in the case. But the Court only granted review to a limited question presented:

Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

As soon as I saw the grant, I started to scratch my head. Why did the Court rewrite the QP? Here is how Paul Clement framed the issue for the petitioners:

Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

There are at least five major differences between Clement’s QP and the Court’s QP.

First, the Court’s QP focuses on the state’s decision to deny “concealed-carry licenses” to the petitioners. Clement’s QP challenged the law on its face, and as applied. Is the Court’s decision now limited to an as-applied challenge, rather than a facial challenge? Might the Court leave open the possibility that other may-issue regimes are unconstitutional? Are there some unique aspects of the New York law that would distinguish it from other may issue regimes? Is there the possibility the Court will need to remand for further explication of the regime? Is there some evidence that the state improperly denied licenses to these particular plaintiffs? Might there be some Due Process Clause argument? Then again, the QP references the Second Amendment, so a Due Process issue would not be squarely presented. I see this slippery change as a way for the Court to issue a very, very narrow decision that will leave the issue unsettled.

Second, the Court’s QP refers to a petitioner that could file an “application.” That category of individuals would seem limited to a natural person. One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an “application”? Or will the Court limit relief to the named parties.  Here, the Court may be trying to avoid the associational standing issue. This issue arose in June Medical with respect to abortion providers. Of course, in the Court’s standing jurisprudence, doctors who provide abortions for others would have third party standing, but organizations of people who personally exercise their Second Amendment rights would lack third party standing. Makes perfect sense.

Third, the Court’s QP refers to “applications for concealed-carry licenses for self-defense.” Clement’s QP refers to “ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” The Court’s question is far more narrow. It only concerns “concealed-carry licenses.” Clement’s petition refers to carrying a gun more broadly outside the home. By stripping the reference to “outside the home,” the Court avoids resolving a thirteen-year old mystery: why exactly are “sensitive places.” Also, the Court’s question would close the door to a claim for open-carry. But why would the Court even consider this issue? New York does not permit open carry. I am nervous this QP is setting up a punt: a remand to consider whether permitting open carry would be consistent with the Second Amendment. Specifically, can New York prohibit conceal carry if it permits open carry? And by the time the case returns, there will be 17 Justices and the Court can deny review.

Fourth, Clement’s QP refers to “citizens.” There is no corresponding language in the Court’s QP. Did Justice Sotomayor object a right that would be limited to citizens? After all, the Second Amendment does not apply to citizens. It refers to the “Right of the people” (Judge Wood adopted that reading of the Second Amendment for the Seventh Circuit). And the Due Process Clause, which the McDonald plurality used for incorporation, refers to persons, not citizens. Yet, Justice Thomas’s controlling (?) McDonald concurrence relied on the Privileges or Immunities Clause, which is limited to citizens.

Fifth, Clement’s QP refers more broadly to “ordinary law-abiding citizens.” Again, there is no similar corresponding language in the Court’s QP. Here, the Court may not have wanted to get involved in the precise basis on the right to carry. What exactly does “ordinary law-abiding” mean? Does that category include non-violent felons? The Court ducked that issue last week.

Ultimately, I am conflicted about this grant. Part of me should be ebullient that the Court finally granted a real gun case. Yet, this strange rewriting of the QP has tempered my enthusiasm. I am jaded after thirteen years of being burned in Second Amendment cases. This grant may be the last time a nine-member Court decides a Second Amendment case. Any punt here will sweep Heller to what Justice Scalia called the “the dustbin of repudiated constitutional principles.”

We should get a decision by June 2022. Alas, that timing will not allow Randy and I to include the case for the Fourth Edition of our casebook, which should be released by October 2021.

Finally, one of my first blog posts in September 2009 focused on the question presented in McDonald. That post, which went viral thanks to links on Volokh and Instapundit, put my blog on the map. It has been a fun run over the past thirteen years!

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SCOTUS Just Agreed To Hear a Major New Second Amendment Case


covphotos127856

The U.S. Supreme Court today agreed to hear oral arguments in a major new Second Amendment case whose outcome is likely to have significant ramifications for the future of gun control laws around the country.

The case is New York State Rifle & Pistol Association v. Corlett. At issue is the Empire State’s requirement that those seeking to obtain a license to carry a concealed handgun in public must first prove to the satisfaction of state officials that they have a “proper cause” to carry a firearm. What counts as a “proper cause”? State law does not precisely define the term, though some judges have. And according to the U.S. Court of Appeals for the 2nd Circuit’s 2012 ruling in Kachalsky v. County of Westchester, a “generalized desire to carry a concealed weapon to protect one’s person and property does not constitute ‘proper cause.'” In other words, if you hope to legally carry a handgun in New York, basic self-defense is not a good enough reason.

The New York State Rifle & Pistol Association, joined by several individual plaintiffs, maintains that this regulatory regime violates the Second Amendment. “A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the [Supreme] Court’s affirmation of the individual right to possess and carry weapons in case of confrontation,” they argue in a legal filing submitted to SCOTUS. “The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of ‘the people’ through some ‘proper cause.’ To the contrary, the Second Amendment exists to protect the rights of all the people.”

The Supreme Court has not ruled on the merits of a major Second Amendment case in over a decade. In District of Columbia v. Heller (2008), the Court invalidated Washington, D.C.’s handgun ban for violating the constitutional right to armed self-defense. In McDonald v. Chicago (2010), the Court enforced that right against the states, striking down a similar handgun ban enacted by the Windy City. But because both Heller and McDonald centered on laws banning handgun possession within the home, the Court effectively left unresolved the extent to which the right to keep and bear arms applies in public.

The Supreme Court will soon address that question directly. In its order today, the Court agreed to hear arguments about “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

At least two members of the current Court clearly believe that the Second Amendment’s protections should extend beyond the front door. In 2017, Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the Court’s refusal to hear a case that asked whether the Constitution protects the right to carry guns in public. “This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion,” Thomas wrote. “As we explained in Heller, to ‘bear arms’ means to ‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’ The most natural reading of this definition encompasses public carry. I find it extremely improbable,” Thomas added, “that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

If at least three other justices are willing to join that view in the months ahead, New York State Rifle & Pistol Association v. Corlett could go down in the books alongside Heller and McDonald as another landmark victory for Second Amendment advocates.

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Making Sense of the Limited Cert Grant in NYS Rifle & Pistol Association v. Corlett

One week ago, I lamented about Heller‘s sad bar mitzvah. On April 26, the Court denied review in three Second Amendment cases concerning the rights of non-violent felons. And the Court had twice relisted NYS Rifle & Pistol Association v. Corlett. At the time, I assumed the Court had denied review, and Justice Thomas was writing yet another dissent from denial of certiorari.

Once again, the shadow docket threw a curveball. This morning the Court granted cert in the case. But the Court only granted review to a limited question presented:

Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

As soon as I saw the grant, I started to scratch my head. Why did the Court rewrite the QP? Here is how Paul Clement framed the issue for the petitioners:

Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

There are at least five major differences between Clement’s QP and the Court’s QP.

First, the Court’s QP focuses on the state’s decision to deny “concealed-carry licenses” to the petitioners. Clement’s QP challenged the law on its face, and as applied. Is the Court’s decision now limited to an as-applied challenge, rather than a facial challenge? Might the Court leave open the possibility that other may-issue regimes are unconstitutional? Are there some unique aspects of the New York law that would distinguish it from other may issue regimes? Is there the possibility the Court will need to remand for further explication of the regime? Is there some evidence that the state improperly denied licenses to these particular plaintiffs? Might there be some Due Process Clause argument? Then again, the QP references the Second Amendment, so a Due Process issue would not be squarely presented. I see this slippery change as a way for the Court to issue a very, very narrow decision that will leave the issue unsettled.

Second, the Court’s QP refers to a petitioner that could file an “application.” That category of individuals would seem limited to a natural person. One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an “application”? Or will the Court limit relief to the named parties.  Here, the Court may be trying to avoid the associational standing issue. This issue arose in June Medical with respect to abortion providers. Of course, in the Court’s standing jurisprudence, doctors who provide abortions for others would have third party standing, but organizations of people who personally exercise their Second Amendment rights would lack third party standing. Makes perfect sense.

Third, the Court’s QP refers to “applications for concealed-carry licenses for self-defense.” Clement’s QP refers to “ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” The Court’s question is far more narrow. It only concerns “concealed-carry licenses.” Clement’s petition refers to carrying a gun more broadly outside the home. By stripping the reference to “outside the home,” the Court avoids resolving a thirteen-year old mystery: why exactly are “sensitive places.” Also, the Court’s question would close the door to a claim for open-carry. But why would the Court even consider this issue? New York does not permit open carry. I am nervous this QP is setting up a punt: a remand to consider whether permitting open carry would be consistent with the Second Amendment. Specifically, can New York prohibit conceal carry if it permits open carry? And by the time the case returns, there will be 17 Justices and the Court can deny review.

Fourth, Clement’s QP refers to “citizens.” There is no corresponding language in the Court’s QP. Did Justice Sotomayor object a right that would be limited to citizens? After all, the Second Amendment does not apply to citizens. It refers to the “Right of the people” (Judge Wood adopted that reading of the Second Amendment for the Seventh Circuit). And the Due Process Clause, which the McDonald plurality used for incorporation, refers to persons, not citizens. Yet, Justice Thomas’s controlling (?) McDonald concurrence relied on the Privileges or Immunities Clause, which is limited to citizens.

Fifth, Clement’s QP refers more broadly to “ordinary law-abiding citizens.” Again, there is no similar corresponding language in the Court’s QP. Here, the Court may not have wanted to get involved in the precise basis on the right to carry. What exactly does “ordinary law-abiding” mean? Does that category include non-violent felons? The Court ducked that issue last week.

Ultimately, I am conflicted about this grant. Part of me should be ebullient that the Court finally granted a real gun case. Yet, this strange rewriting of the QP has tempered my enthusiasm. I am jaded after thirteen years of being burned in Second Amendment cases. This grant may be the last time a nine-member Court decides a Second Amendment case. Any punt here will sweep Heller to what Justice Scalia called the “the dustbin of repudiated constitutional principles.”

We should get a decision by June 2022. Alas, that timing will not allow Randy and I to include the case for the Fourth Edition of our casebook, which should be released by October 2021.

Finally, one of my first blog posts in September 2009 focused on the question presented in McDonald. That post, which went viral thanks to links on Volokh and Instapundit, put my blog on the map. It has been a fun run over the past thirteen years!

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via IFTTT

SCOTUS Just Agreed To Hear a Major New Second Amendment Case


covphotos127856

The U.S. Supreme Court today agreed to hear oral arguments in a major new Second Amendment case whose outcome is likely to have significant ramifications for the future of gun control laws around the country.

The case is New York State Rifle & Pistol Association v. Corlett. At issue is the Empire State’s requirement that those seeking to obtain a license to carry a concealed handgun in public must first prove to the satisfaction of state officials that they have a “proper cause” to carry a firearm. What counts as a “proper cause”? State law does not precisely define the term, though some judges have. And according to the U.S. Court of Appeals for the 2nd Circuit’s 2012 ruling in Kachalsky v. County of Westchester, a “generalized desire to carry a concealed weapon to protect one’s person and property does not constitute ‘proper cause.'” In other words, if you hope to legally carry a handgun in New York, basic self-defense is not a good enough reason.

The New York State Rifle & Pistol Association, joined by several individual plaintiffs, maintains that this regulatory regime violates the Second Amendment. “A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the [Supreme] Court’s affirmation of the individual right to possess and carry weapons in case of confrontation,” they argue in a legal filing submitted to SCOTUS. “The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of ‘the people’ through some ‘proper cause.’ To the contrary, the Second Amendment exists to protect the rights of all the people.”

The Supreme Court has not ruled on the merits of a major Second Amendment case in over a decade. In District of Columbia v. Heller (2008), the Court invalidated Washington, D.C.’s handgun ban for violating the constitutional right to armed self-defense. In McDonald v. Chicago (2010), the Court enforced that right against the states, striking down a similar handgun ban enacted by the Windy City. But because both Heller and McDonald centered on laws banning handgun possession within the home, the Court effectively left unresolved the extent to which the right to keep and bear arms applies in public.

The Supreme Court will soon address that question directly. In its order today, the Court agreed to hear arguments about “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

At least two members of the current Court clearly believe that the Second Amendment’s protections should extend beyond the front door. In 2017, Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the Court’s refusal to hear a case that asked whether the Constitution protects the right to carry guns in public. “This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion,” Thomas wrote. “As we explained in Heller, to ‘bear arms’ means to ‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’ The most natural reading of this definition encompasses public carry. I find it extremely improbable,” Thomas added, “that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

If at least three other justices are willing to join that view in the months ahead, New York State Rifle & Pistol Association v. Corlett could go down in the books alongside Heller and McDonald as another landmark victory for Second Amendment advocates.

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S. Ct. Will Consider Whether Second Amendment Protects Right to Carry Guns Outside the Home

The case is N.Y. State Rifle & Pistol Ass’n v. Corlett; you can read the petition and the other briefs here. The question presented is:

Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

The brief is from Paul Clement, a former U.S. Solicitor General, who will presumably also argue the case.

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S. Ct. Will Consider Whether Second Amendment Protects Right to Carry Guns Outside the Home

The case is N.Y. State Rifle & Pistol Ass’n v. Corlett; you can read the petition and the other briefs here. The question presented is:

Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

The brief is from Paul Clement, a former U.S. Solicitor General, who will presumably also argue the case.

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via IFTTT

No, Biden Isn’t Coming for Your Burgers


westendrf462000

Conservative politicians and media have been inflamed over President Joe Biden’s plan to drastically curb American meat consumption. There’s just one little problem: It doesn’t exist.

The root of the rumor: a story in the British tabloid the Daily Mail. Noting that Biden wants to slash greenhouse gas emissions, the Mail added that “while Biden hasn’t released details on what life could look like for Americans, experts and recent studies have laid out what would need to change by 2030 to reach the goal.” The paper then pointed to a random University of Michigan study (released in January 2020), saying that cutting red meat consumption by 90 percent per person could cut diet-related greenhouse gas emissions in half.

Biden never cited the study as a blueprint, nor did his administration have anything to do with it. And the Mail didn’t actually say as much in its article text, either; rather, it speculated on a range of different ways to drastically reduce emissions. But the headline was a bit more misleading: “How Biden’s climate plan could limit you to eat just one burger a MONTH.” And that was enough to launch a twisted game of Republican telephone.

On Friday, former director of the National Economic Council Larry Kudlow told Fox News viewers that “Biden announced a 50 percent cut in carbon emissions in only a few years” and that “there’s a study coming out of the University of Michigan which says that to meet the Biden Green New Deal targets, America has to, get this, America has to stop eating meat, stop eating poultry and fish, seafood, eggs, dairy, and animal-based fats.”

While Kudlow didn’t directly attribute the food restrictions to Biden policy, Fox Business implied as much, headlining a story about his comments, “Kudlow: Biden’s Green New Deal means no meat for the 4th of July, have grilled Brussels sprouts instead,” and adding as a subhead, “Kudlow says Biden’s climate plan comes from ‘ideological zealots’ who don’t care about America.”

A Fox News graphic listed “cut 90% of red meat from diet” under “Biden’s Climate Requirements”:

Before long, some of Congress’ biggest kooks had taken up the message.

“Joe Biden’s climate plan includes cutting 90% of red meat from our diets by 2030. They want to limit us to about four pounds a year,” tweeted Rep. Lauren Boebert (R–Colo).

Rep. Marjorie Taylor Greene (R–Ga.) called Biden the Hamburglar, tweeting a photo of him eating burgers under the caption, “No burgers for thee, but just for me.”

Texas Gov. Greg Abbott, Donald Trump Jr., and other prominent Republicans also shared this fake news.

Sustainable systems researcher Martin Heller, who co-authored the University of Michigan study at the center of this hoopla, told CNN’s Daniel Dale he had “no idea what Biden’s plan has to say about our diets.”

FREE MINDS

The Supreme Court hears oral arguments today in Americans for Prosperity Foundation v. Rodriquez, a case concerning disclosure of charitable donations.

The case stems from the 2010 demands of the California attorney general’s office and subsequent arguments from now-Vice President Kamala Harris:

When several nonprofit groups challenged this practice in 2014, then-Attorney General Kamala Harris argued that she needed the information to streamline investigations. She promised that individuals’ confidentiality was carefully protected. Neither assertion was true. When the matter came to trial in 2016, state officials conceded that they hardly ever used their database for investigations. And the challengers unearthed tens of thousands of confidential documents, including contributor lists, left unsecured on the attorney general’s website.

FREE MARKETS

Corey A. DeAngelis, senior fellow at Reason Foundation, talks school choice movement in states:

QUICK HITS

• Why is anyone listening to Sen. Amy Klobuchar (D–Minn.) on criminal justice reform?

• Markets in everything!

• “Increasing police militarization risks transforming law enforcement in minority communities into national security operations, with corresponding greater authority to use force and restrict liberty,” writes Milton C. Reagan of Georgetown’s Center on National Security and the Law in a new paper.

• Why prosecutors promising not to prosecute prostitution isn’t enough:

• It’s not just U.S. lawmakers who don’t understand how the internet works:

• The Foundation for Individual Rights in Education (FIRE) is fighting for pro-choice students’ speech rights:

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No, Biden Isn’t Coming for Your Burgers


westendrf462000

Conservative politicians and media have been inflamed over President Joe Biden’s plan to drastically curb American meat consumption. There’s just one little problem: It doesn’t exist.

The root of the rumor: a story in the British tabloid the Daily Mail. Noting that Biden wants to slash greenhouse gas emissions, the Mail added that “while Biden hasn’t released details on what life could look like for Americans, experts and recent studies have laid out what would need to change by 2030 to reach the goal.” The paper then pointed to a random University of Michigan study (released in January 2020), saying that cutting red meat consumption by 90 percent per person could cut diet-related greenhouse gas emissions in half.

Biden never cited the study as a blueprint, nor did his administration have anything to do with it. And the Mail didn’t actually say as much in its article text, either; rather, it speculated on a range of different ways to drastically reduce emissions. But the headline was a bit more misleading: “How Biden’s climate plan could limit you to eat just one burger a MONTH.” And that was enough to launch a twisted game of Republican telephone.

On Friday, former director of the National Economic Council Larry Kudlow told Fox News viewers that “Biden announced a 50 percent cut in carbon emissions in only a few years” and that “there’s a study coming out of the University of Michigan which says that to meet the Biden Green New Deal targets, America has to, get this, America has to stop eating meat, stop eating poultry and fish, seafood, eggs, dairy, and animal-based fats.”

While Kudlow didn’t directly attribute the food restrictions to Biden policy, Fox Business implied as much, headlining a story about his comments, “Kudlow: Biden’s Green New Deal means no meat for the 4th of July, have grilled Brussels sprouts instead,” and adding as a subhead, “Kudlow says Biden’s climate plan comes from ‘ideological zealots’ who don’t care about America.”

A Fox News graphic listed “cut 90% of red meat from diet” under “Biden’s Climate Requirements”:

Before long, some of Congress’ biggest kooks had taken up the message.

“Joe Biden’s climate plan includes cutting 90% of red meat from our diets by 2030. They want to limit us to about four pounds a year,” tweeted Rep. Lauren Boebert (R–Colo).

Rep. Marjorie Taylor Greene (R–Ga.) called Biden the Hamburglar, tweeting a photo of him eating burgers under the caption, “No burgers for thee, but just for me.”

Texas Gov. Greg Abbott, Donald Trump Jr., and other prominent Republicans also shared this fake news.

Sustainable systems researcher Martin Heller, who co-authored the University of Michigan study at the center of this hoopla, told CNN’s Daniel Dale he had “no idea what Biden’s plan has to say about our diets.”

FREE MINDS

The Supreme Court hears oral arguments today in Americans for Prosperity Foundation v. Rodriquez, a case concerning disclosure of charitable donations.

The case stems from the 2010 demands of the California attorney general’s office and subsequent arguments from now-Vice President Kamala Harris:

When several nonprofit groups challenged this practice in 2014, then-Attorney General Kamala Harris argued that she needed the information to streamline investigations. She promised that individuals’ confidentiality was carefully protected. Neither assertion was true. When the matter came to trial in 2016, state officials conceded that they hardly ever used their database for investigations. And the challengers unearthed tens of thousands of confidential documents, including contributor lists, left unsecured on the attorney general’s website.

FREE MARKETS

Corey A. DeAngelis, senior fellow at Reason Foundation, talks school choice movement in states:

QUICK HITS

• Why is anyone listening to Sen. Amy Klobuchar (D–Minn.) on criminal justice reform?

• Markets in everything!

• “Increasing police militarization risks transforming law enforcement in minority communities into national security operations, with corresponding greater authority to use force and restrict liberty,” writes Milton C. Reagan of Georgetown’s Center on National Security and the Law in a new paper.

• Why prosecutors promising not to prosecute prostitution isn’t enough:

• It’s not just U.S. lawmakers who don’t understand how the internet works:

• The Foundation for Individual Rights in Education (FIRE) is fighting for pro-choice students’ speech rights:

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Warrantless Border Searches Draw Call for Supreme Court Action


dreamstime_m_150025832

Civil liberties groups are, once again, challenging the federal government’s growing taste for searching travelers’ electronic devices at the border without suspicion or warrants. Last week, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and the ACLU of Massachusetts asked the United States Supreme Court to intervene in an ongoing lawsuit and to apply Fourth Amendment protections to people at points of entry to the country, including airports.

“The lawsuit, Merchant v. Mayorkas, was filed in September 2017 on behalf of several travelers whose cell phones, laptops, and other electronic devices were searched without warrants at the U.S. border,” notes the groups’ joint press release. “In November 2019, a federal district court in Boston ruled that border agencies’ policies on electronic device searches violate the Fourth Amendment, and required border officers to have reasonable suspicion of digital contraband before they can search a traveler’s device. A three-judge panel at the First Circuit reversed this decision in February 2021.”

It’s important to get a determination one way or another about the application of constitutional protections for individual rights at the border because such searches have soared for years under administrations from both major political parties. 

“Border Protection says searches increased fivefold in the final fiscal year of the Obama presidency,” the AP reported in 2017. Such searches almost quadrupled again, according to the ACLU, from 8,503 in 2015 to more than 30,000 in 2018. The government says those numbers further rose to 40,000 in 2019 (the pandemic travel slump slightly dampened search totals for 2020). If bipartisanship still exists in Washington, D.C., it truly comes together over agreement to violate individuals’ liberty and privacy.

“Border officers claim the authority to search devices for a host of reasons, including enforcement of tax, financial, consumer protection, and environmental laws—all without suspicion of wrongdoing,” EFF and the ACLU point out. “Border officers also search travelers’ devices if they are interested in information about someone other than the traveler—like a business partner, family member, or a journalist’s source.”

In 2016, Department of Homeland Security agents at LAX insisted on searching cell phones belonging to Maria Abi-Habib, then a reporter covering the Middle East for the Wall Street Journal. Uncertain why she was targeted, but speculating it was because of her contacts in the volatile region, she thwarted them by involving her employer’s considerable legal clout. 

In 2019, Rolling Stone‘s Seth Harp was less fortunate at the airport in Austin, Texas, upon his return from a trip to Mexico. Although he cooperated, he was detained for hours as federal agents pawed through photos taken in war zones and questioned him about his political views.

EFF and the ACLU represent 11 lower-profile plaintiffs who can’t call on powerful newspaper attorneys or easily publicize their ordeals. The plaintiffs’ hopes lie in the lawsuit and, hopefully, intervention by the Supreme Court. High court action is necessary because of federal appeals court decisions allowing warrantless and suspicionless searches of those crossing the border—in either direction.

“In general, border searches of electronic devices do not require a warrant or suspicion, but certain searches undertaken in the Ninth Circuit must meet a heightened standard,” U.S. Customs and Border Protection advised in a 2018 Privacy Impact Assessment Update for CBP Border Searches of Electronic Devices. “Additionally, the authority to conduct border searches extends not only to persons and merchandise entering the United States, but applies equally to those departing the country.”

While not to the same nearly limitless degree as at airports and border crossings, federal agents also enjoy wide search powers up to 100 miles from the border. Given population distribution in the country, that means that a majority of Americans enjoy fewer protections for their natural rights than the Fourth Amendment would seem to provide. Federal agents, unsurprisingly, are not eager to surrender their authority.

“We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment,” argued the DHS in 2013. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”

“Under a reasonable suspicion requirement officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search,” DHS warned in its full Civil Rights/Civil Liberties Impact Assessment: Border Searches of Electronic Devices report the same year.

Some might argue that “hunch” and “intuition” are poor grounds for permitting government agents to paw through private property and personal data, but not the bureaucrats who enjoy doing just that. Fourth Amendment protections exist precisely to protect individual rights from intrusions based on such loose “spidey-sense” standards, which pretty much every cop on the planet would be happy to invoke given the opportunity. That’s why we need the courts to intervene—or, maybe, a little attention from some of the remaining politicians who still care about civil liberties.

In 2019, Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.) introduced a bill to end warrantless and suspicionless searches of electronic devices at border crossings. Given the age in which we live and overwhelming bipartisan love for the surveillance state, the legislation went nowhere. The two lawmakers are still working together on efforts to curb end-runs around Fourth Amendment protections by government agencies, though they haven’t revisited the issue of border searches. Given renewed attention to the issue, perhaps they’ll revive the earlier bill.

Until lawmakers show renewed interest in privacy protections for travelers, keep an eye on the U.S. Supreme Court and its reaction to the petition from the EFF and the ACLU. And maybe keep your sensitive information in encrypted cloud storage or otherwise secure from easy access by snoopy border agents.

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Warrantless Border Searches Draw Call for Supreme Court Action


dreamstime_m_150025832

Civil liberties groups are, once again, challenging the federal government’s growing taste for searching travelers’ electronic devices at the border without suspicion or warrants. Last week, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and the ACLU of Massachusetts asked the United States Supreme Court to intervene in an ongoing lawsuit and to apply Fourth Amendment protections to people at points of entry to the country, including airports.

“The lawsuit, Merchant v. Mayorkas, was filed in September 2017 on behalf of several travelers whose cell phones, laptops, and other electronic devices were searched without warrants at the U.S. border,” notes the groups’ joint press release. “In November 2019, a federal district court in Boston ruled that border agencies’ policies on electronic device searches violate the Fourth Amendment, and required border officers to have reasonable suspicion of digital contraband before they can search a traveler’s device. A three-judge panel at the First Circuit reversed this decision in February 2021.”

It’s important to get a determination one way or another about the application of constitutional protections for individual rights at the border because such searches have soared for years under administrations from both major political parties. 

“Border Protection says searches increased fivefold in the final fiscal year of the Obama presidency,” the AP reported in 2017. Such searches almost quadrupled again, according to the ACLU, from 8,503 in 2015 to more than 30,000 in 2018. The government says those numbers further rose to 40,000 in 2019 (the pandemic travel slump slightly dampened search totals for 2020). If bipartisanship still exists in Washington, D.C., it truly comes together over agreement to violate individuals’ liberty and privacy.

“Border officers claim the authority to search devices for a host of reasons, including enforcement of tax, financial, consumer protection, and environmental laws—all without suspicion of wrongdoing,” EFF and the ACLU point out. “Border officers also search travelers’ devices if they are interested in information about someone other than the traveler—like a business partner, family member, or a journalist’s source.”

In 2016, Department of Homeland Security agents at LAX insisted on searching cell phones belonging to Maria Abi-Habib, then a reporter covering the Middle East for the Wall Street Journal. Uncertain why she was targeted, but speculating it was because of her contacts in the volatile region, she thwarted them by involving her employer’s considerable legal clout. 

In 2019, Rolling Stone‘s Seth Harp was less fortunate at the airport in Austin, Texas, upon his return from a trip to Mexico. Although he cooperated, he was detained for hours as federal agents pawed through photos taken in war zones and questioned him about his political views.

EFF and the ACLU represent 11 lower-profile plaintiffs who can’t call on powerful newspaper attorneys or easily publicize their ordeals. The plaintiffs’ hopes lie in the lawsuit and, hopefully, intervention by the Supreme Court. High court action is necessary because of federal appeals court decisions allowing warrantless and suspicionless searches of those crossing the border—in either direction.

“In general, border searches of electronic devices do not require a warrant or suspicion, but certain searches undertaken in the Ninth Circuit must meet a heightened standard,” U.S. Customs and Border Protection advised in a 2018 Privacy Impact Assessment Update for CBP Border Searches of Electronic Devices. “Additionally, the authority to conduct border searches extends not only to persons and merchandise entering the United States, but applies equally to those departing the country.”

While not to the same nearly limitless degree as at airports and border crossings, federal agents also enjoy wide search powers up to 100 miles from the border. Given population distribution in the country, that means that a majority of Americans enjoy fewer protections for their natural rights than the Fourth Amendment would seem to provide. Federal agents, unsurprisingly, are not eager to surrender their authority.

“We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment,” argued the DHS in 2013. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”

“Under a reasonable suspicion requirement officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search,” DHS warned in its full Civil Rights/Civil Liberties Impact Assessment: Border Searches of Electronic Devices report the same year.

Some might argue that “hunch” and “intuition” are poor grounds for permitting government agents to paw through private property and personal data, but not the bureaucrats who enjoy doing just that. Fourth Amendment protections exist precisely to protect individual rights from intrusions based on such loose “spidey-sense” standards, which pretty much every cop on the planet would be happy to invoke given the opportunity. That’s why we need the courts to intervene—or, maybe, a little attention from some of the remaining politicians who still care about civil liberties.

In 2019, Sen. Ron Wyden (D-Ore.) and Sen. Rand Paul (R-Ky.) introduced a bill to end warrantless and suspicionless searches of electronic devices at border crossings. Given the age in which we live and overwhelming bipartisan love for the surveillance state, the legislation went nowhere. The two lawmakers are still working together on efforts to curb end-runs around Fourth Amendment protections by government agencies, though they haven’t revisited the issue of border searches. Given renewed attention to the issue, perhaps they’ll revive the earlier bill.

Until lawmakers show renewed interest in privacy protections for travelers, keep an eye on the U.S. Supreme Court and its reaction to the petition from the EFF and the ACLU. And maybe keep your sensitive information in encrypted cloud storage or otherwise secure from easy access by snoopy border agents.

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