Second Amendment Litigants Hope To Try Their Luck With Amy Coney Barrett

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The Supreme Court has continued to largely evade cases about the Second Amendment since the one-two punch of 2008’s D.C. v. Heller (which declared the amendment protects an individual right to possess commonly used weapons for self-defense in the home) and 2010’s McDonald v. Chicago (which extended that reasoning to state and local laws).

With a more solid majority of jurists on the Court with a record of respect for the Second Amendment now that Amy Coney Barrett has been confirmed, the Second Amendment Foundation (SAF), in collaboration with other plaintiffs and organizations, filed a flurry of November lawsuits attempting to extend the reach of the Second Amendment. Should such a case actually end up getting considered by the Supreme Court, gun rights groups have a better chance of prevailing in the Barrett era, as well as a better chance of being taken up in the first place.

Three of the suits aim at laws in three states restricting people’s ability to carry their guns outside the home, an issue left unresolved by Heller. One, Bennett v. Davis, filed in U.S. District Court for the District of New Jersey, insists that the citizen plaintiffs “have a fundamental, constitutionally guaranteed right to carry loaded, operable handguns on their person and outside their homes, including in their vehicles, places of business, and otherwise in public, for the purpose of self-defense.”

New Jersey law makes it a second-degree felony to carry a gun in public without a carry license. Such licenses are by state law issued at the discretion of police and generally require proof that you have a “justifiable need,” meaning an “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.”

The lawsuit does acknowledge the bad news for arguing that this particular law violates the Second Amendment: Similar arguments were made against New Jersey’s carry permit laws in a case called alternatively Drake v. Filko and Drake v. Jerejian. Those arguments lost in the 3rd U.S. Circuit Court of Appeals, and the Supreme Court in 2014 declined to take up the case.

This June, the Court declined certiorari in another challenge to New Jersey’s permit law, Rogers v. Grewal. In dissenting from the Court’s decision not to take up that case, Justice Clarence Thomas complained, rightly, that the Supreme Court, by largely ignoring chances to refine or extend its Heller analysis, has let various lower courts run roughshod over the Second Amendment by inventing lower standards of scrutiny not set forth by the Court, resulting in various “analyses that are entirely inconsistent with Heller.”

Still, this new suit insists when properly considered, “under the text of the Constitution, our Nation’s history and tradition, and the Supreme Court’s precedents, [New Jersey’s carry permit laws should] be declared unconstitutional and enjoined so that Plaintiffs and law-abiding individuals like them can exercise their constitutional right to bear arms—both inside and outside of their homes.”

Another suit filed last month in U.S. District Court for the Southern District of New York aims a similar challenge at New York’s carry permit laws. The suit, Greco v. City of New York, argues:

Law-abiding citizens have a fundamental right to bear arms—including, specifically, operable modern handguns—for the “core” purpose of self-protection. The only way that a private citizen can exercise this right in New York City is by obtaining a license from the New York City Police Department. To obtain this license, the person must (among other things) meet a highly restrictive “proper cause” standard that requires a showing of special or heightened need. This standard acts to ban all typical and average law-abiding citizens from obtaining licenses as they, by definition, are not able to show special or heightened need. However, all people, not just those with special or heightened needs, have a fundamental right to bear arms by carrying handguns, away from their homes and in public, for the purpose of self-defense.

As with the Jersey case, this suit insists that a rational assessment of the meaning of the Second Amendment as established in Heller should knock down the New York law that makes “the unlicensed possession of a handgun and ammunition away from one’s home or place of business…a class C felony, subject to a mandatory minimum sentence of 3.5 years” with that license only obtainable by presenting a “proper cause” to the police, since “the Defendants have prevented Plaintiff Greco and virtually all other typical or average people from obtaining the license that is needed to exercise the right to bear arms for its core purpose, self-protection, while in the City of New York.”

In a third suit filed in November by SAF, Call v. Jones, Maryland’s carry permit laws are challenged on similar grounds, insisting that “Maryland has made clear that a general desire to carry a handgun for the purpose of self-defense—’the central component’ of the Second Amendment [as per Heller]—is not a sufficiently good reason to exercise the right. Instead, according to Maryland, an ordinary citizen must provide documented evidence of concrete threats or recent assaults to obtain a permit from the state to carry a handgun in public.”

Various federal appeals courts have come to a variety of different decisions on this question of restricting the right to bear arms outside the home, including the 9th Circuit’s decision in 2016’s Peruta v. San Diego that declared concealed carry can be constitutionally prohibited, the 7th Circuit’s 2012 Moore v. Madigan which overturned an Illinois law unduly prohibiting citizens carrying guns outside the home, and the ongoing Young v. Hawaii case in the 9th Circuit, which in an earlier iteration (that many expect to be overturned by the Court en banc) protected open carry as a right not open to quick abridgment under the Second Amendment.

Carry permit laws are not the only ones the SAF hopes might eventually come before a Supreme Court with Barrett on it. Lawsuits in November also challenged California’s regulations that restrict legal gun purchases to a state-produced roster of acceptable weapons (Renna v. Becerra) and Louisiana’s regulations that prevent people ages 18-20 from purchasing guns (Reese v. BATFE).

The Firearms Policy Coalition, which is working with SAF on some of the above lawsuits, has also filed some fresh suits, including Cowey v. Mullen, which challenges Pennsylvania’s coronavirus-related closure of its division that processes gun permit requests.

Adam Kraut, a laywer with the Firearms Policy Coalition, says in a phone interview yesterday that he’s not discouraged by past anti-Second Amendment decisions from federal appeals courts. Kraut is encouraged by Justice Clarence Thomas’ frequent complaints that the lower courts are “treating the Second Amendment as a second-class right, and you shouldn’t do that.”

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A challenge to hendiadys in the law

There’s a good new article on hendiadys in the Constitution, and it suggests that this hendiadys thing is getting out of hand already. As the title of the article puts it, Hendiadys in the Language of the Law: What Part of “and” Don’t You Understand?. The article is by Elizabeth Fajans and Mary R. Falk, and is published in Legal Communication & Rhetoric.

(What is hendiadys, you ask? A figure of speech in which two terms separated by a conjunction work together as a single unit of meaning. The examples I discuss in “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution range from the colloquial, as in Julia Child’s “good and dry”; to the literary, as in William Shakespeare’s “law and heraldry”; to the legal, as in “necessary and proper.”)

The argument by Fajan and Falks is thoughtful, clear, generous, and not about trivialities but first principles. It is a model critique, and I’m delighted to have seen it. They also discuss synecdoche and metaphor, which they do think have some place in legal interpretation. Perhaps more on that in time, but I will focus in this post on their argument about hendiadys.

The gist of the argument is that hendiadys is a literary figure that emphasizes “doubt, self-deception, multiplicity, complexity, and ambiguity.” Those characteristics make this figure of speech “sit uncomfortably in legal texts or, for that matter, in instructional materials on assembling an IKEA couch.” But it is not merely unlikely that hendiadys appears in legal texts. Fajans and Falk conclude that it should be a priori excluded from the interpretive options:

Beginning our research, we found sparse mention of hendiadys—until Professor Bray’s article was published, eliciting considerable comment and other explorations of hendiadys in law. We soon became convinced that not only was it unlikely that many, if any, binomial expressions in the law are hendiadys, but even if some are, that its use as an interpretive strategy is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is multiplicity and complexity. . . . Our takeaway is therefore simple: some literary devices, like hendiadys, have no proper place in the language of the law or in its interpretation . . . .

Let me mention three points of agreement and three points of disagreement between me and Fajans and Falk.

Agreement 1: Hendiadys is often used in literary contexts as a means of unsettling language and expressing ambiguity. In such contexts, the effect produced by hendiadys can be to make the author’s words and phrases like the shattered pieces of two small whaling boats in Moby Dick: “the odorous cedar chips of the wrecks danced round and round, like the grated nutmeg in a swiftly stirred bowl of punch.”

Agreement 2: plain speech is an aspiration in the law, and in our culture of legal production it would be inappropriate to include such self-conscious literary pyrotechnics in a constitution, statute, or rule.

Agreement 3: in the places where I argue a hendiadic reading is best, a non-hendiadic reading is possible. That is, we could read “cruel and unusual” and “necessary and proper” as each offering distinct requirements, as each expressing a tautology, as each being a hendiadys, and so on.

Disagreement 1: I see no reason to rule out, as a matter of definition, all the non-literary uses of hendiadys. Here is the key move by Fajans and Falk (footnotes omitted):

Because hendiadys requires a seeming mismatch, most literary scholars would exclude from this literary device everyday expressions with clear and settled meanings like “nice and hot”; phrasal collocations or tautologies like “lord and master” or “high and mighty,” in which two words are used simply for emphasis and elevation, and expressions using related terms, like “pen and ink” or “wind and rain.” For conjoined terms to be hendiadys, the element of the unexpected must be present . . . .

Once that move is made, the rest of the argument follows. But the premise is contestable. There is debate about how broadly or narrowly to define this figure of speech (as discussed by Fajans and Falk and by me). And although our figures of speech may seem sharply defined, that is a bit illusory, for they are our ways of demarcating phenomena that are much more overlapping and spectral (in spectral‘s two senses).

Nevertheless, hendiadys pervades oral and colloquial speech (e.g., “tried and true” and many other examples in my article). And I also don’t think we can draw such a sharp line between the literary and the “everyday.” It is especially at the oral, the ritual, the poetic, and the proverbial that the separation of “literary” and “everyday” is most likely to mislead us. Consider the Book of Common Prayer, and its “general confession” (which would have been said by George Washington and John Marshall and others every time they attended church services). In this prayer the worshipper says to God: “We have erred and strayed from thy ways like lost sheep.” “Erred and strayed” is a hendiadys, not quite a tautology, and it can be subjected to the multiplicity and ramifying meanings that are common with this figure in literary texts. But it is also everyday. In fact, twice-a-day: it is part of daily Morning and Evening Prayer. It is because the Founders were steeped in a literary and oral culture in which this figure appeared–”pervasively” would be too strong, but still the point is that it appeared with some frequency and was not marked as only “literary”–I think we should be unsurprised if the Founders would have used the figure instinctively, as a way to get close to what was meant, rather than for conscious artistry.

Disagreement 2: although plain speech is good in a law, it is not as easy as it seems. Fajan and Falk are alert to this, recognizing that the search for “fixed meaning” in legal texts may be “[q]uixotic[].” But I would go further. No matter what the skill or good intentions of the drafters, law will pervasively have an edge (and maybe an interior) of indeterminacy. This is so because, as Aristotle recognized, circumstances arise that are unforeseen by the lawmaker. But it is also so, even on day 1 after the passage of a statute, because of the slipperiness of language itself. (This is one reason I think interpreters should consider pragmatics as well as semantics–see The Mischief Rule–but I digress.) If you think law is going to have a non-trivial amount of indeterminacy, at least law when it is at issue in not-subject-to-Rule-11-sanctions litigation, then we should be alert to how figures of speech can help us to understand or misunderstand, resolve or create, ambiguity.

Disagreement 3: To understand whether a phrase should be read as a hendiadys, we need other interpretive resources, including (for the Constitution) the ratification debates and early practice and judicial interpretation. Fajans and Falk note that they are not offering a rejoinder on those fronts. But I don’t think the question of whether or not to adopt a hendiadic reading can be settled by the text. The text can be interpreted hendiadically and non-hendiadically. So when Fajans and Falk point out that non-hendiadic readings are possible, I agree. But the next step–unless one excludes hendiadys a priori–is to consider which of the readings is most consonant with the modalities and other resources of interpretation in our legal tradition.

If hendiadys were limited to literary texts like Hamlet, Fajans and Falk are right that it would be out of place in statutes and constitutions. But it appears in many kinds and registers and genres of speech. We should not be surprised that it appears in law.

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Second Amendment Litigants Hope To Try Their Luck With Amy Coney Barrett

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The Supreme Court has continued to largely evade cases about the Second Amendment since the one-two punch of 2008’s D.C. v. Heller (which declared the amendment protects an individual right to possess commonly used weapons for self-defense in the home) and 2010’s McDonald v. Chicago (which extended that reasoning to state and local laws).

With a more solid majority of jurists on the Court with a record of respect for the Second Amendment now that Amy Coney Barrett has been confirmed, the Second Amendment Foundation (SAF), in collaboration with other plaintiffs and organizations, filed a flurry of November lawsuits attempting to extend the reach of the Second Amendment. Should such a case actually end up getting considered by the Supreme Court, gun rights groups have a better chance of prevailing in the Barrett era, as well as a better chance of being taken up in the first place.

Three of the suits aim at laws in three states restricting people’s ability to carry their guns outside the home, an issue left unresolved by Heller. One, Bennett v. Davis, filed in U.S. District Court for the District of New Jersey, insists that the citizen plaintiffs “have a fundamental, constitutionally guaranteed right to carry loaded, operable handguns on their person and outside their homes, including in their vehicles, places of business, and otherwise in public, for the purpose of self-defense.”

New Jersey law makes it a second-degree felony to carry a gun in public without a carry license. Such licenses are by state law issued at the discretion of police and generally require proof that you have a “justifiable need,” meaning an “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.”

The lawsuit does acknowledge the bad news for arguing that this particular law violates the Second Amendment: Similar arguments were made against New Jersey’s carry permit laws in a case called alternatively Drake v. Filko and Drake v. Jerejian. Those arguments lost in the 3rd U.S. Circuit Court of Appeals, and the Supreme Court in 2014 declined to take up the case.

This June, the Court declined certiorari in another challenge to New Jersey’s permit law, Rogers v. Grewal. In dissenting from the Court’s decision not to take up that case, Justice Clarence Thomas complained, rightly, that the Supreme Court, by largely ignoring chances to refine or extend its Heller analysis, has let various lower courts run roughshod over the Second Amendment by inventing lower standards of scrutiny not set forth by the Court, resulting in various “analyses that are entirely inconsistent with Heller.”

Still, this new suit insists when properly considered, “under the text of the Constitution, our Nation’s history and tradition, and the Supreme Court’s precedents, [New Jersey’s carry permit laws should] be declared unconstitutional and enjoined so that Plaintiffs and law-abiding individuals like them can exercise their constitutional right to bear arms—both inside and outside of their homes.”

Another suit filed last month in U.S. District Court for the Southern District of New York aims a similar challenge at New York’s carry permit laws. The suit, Greco v. City of New York, argues:

Law-abiding citizens have a fundamental right to bear arms—including, specifically, operable modern handguns—for the “core” purpose of self-protection. The only way that a private citizen can exercise this right in New York City is by obtaining a license from the New York City Police Department. To obtain this license, the person must (among other things) meet a highly restrictive “proper cause” standard that requires a showing of special or heightened need. This standard acts to ban all typical and average law-abiding citizens from obtaining licenses as they, by definition, are not able to show special or heightened need. However, all people, not just those with special or heightened needs, have a fundamental right to bear arms by carrying handguns, away from their homes and in public, for the purpose of self-defense.

As with the Jersey case, this suit insists that a rational assessment of the meaning of the Second Amendment as established in Heller should knock down the New York law that makes “the unlicensed possession of a handgun and ammunition away from one’s home or place of business…a class C felony, subject to a mandatory minimum sentence of 3.5 years” with that license only obtainable by presenting a “proper cause” to the police, since “the Defendants have prevented Plaintiff Greco and virtually all other typical or average people from obtaining the license that is needed to exercise the right to bear arms for its core purpose, self-protection, while in the City of New York.”

In a third suit filed in November by SAF, Call v. Jones, Maryland’s carry permit laws are challenged on similar grounds, insisting that “Maryland has made clear that a general desire to carry a handgun for the purpose of self-defense—’the central component’ of the Second Amendment [as per Heller]—is not a sufficiently good reason to exercise the right. Instead, according to Maryland, an ordinary citizen must provide documented evidence of concrete threats or recent assaults to obtain a permit from the state to carry a handgun in public.”

Various federal appeals courts have come to a variety of different decisions on this question of restricting the right to bear arms outside the home, including the 9th Circuit’s decision in 2016’s Peruta v. San Diego that declared concealed carry can be constitutionally prohibited, the 7th Circuit’s 2012 Moore v. Madigan which overturned an Illinois law unduly prohibiting citizens carrying guns outside the home, and the ongoing Young v. Hawaii case in the 9th Circuit, which in an earlier iteration (that many expect to be overturned by the Court en banc) protected open carry as a right not open to quick abridgment under the Second Amendment.

Carry permit laws are not the only ones the SAF hopes might eventually come before a Supreme Court with Barrett on it. Lawsuits in November also challenged California’s regulations that restrict legal gun purchases to a state-produced roster of acceptable weapons (Renna v. Becerra) and Louisiana’s regulations that prevent people ages 18-20 from purchasing guns (Reese v. BATFE).

The Firearms Policy Coalition, which is working with SAF on some of the above lawsuits, has also filed some fresh suits, including Cowey v. Mullen, which challenges Pennsylvania’s coronavirus-related closure of its division that processes gun permit requests.

Adam Kraut, a laywer with the Firearms Policy Coalition, says in a phone interview yesterday that he’s not discouraged by past anti-Second Amendment decisions from federal appeals courts. Kraut is encouraged by Justice Clarence Thomas’ frequent complaints that the lower courts are “treating the Second Amendment as a second-class right, and you shouldn’t do that.”

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Foreign Share Of US Debt Plunging; Fed Picking Up The Slack

Foreign Share Of US Debt Plunging; Fed Picking Up The Slack

Tyler Durden

Tue, 12/01/2020 – 13:25

Via SchiffGold.com,

Over the last year, the US government had borrowed over $4.2 trillion. The national debt now stands well above $27 trillion. There is no end in sight to the borrowing and spending and that raises a significant question: who is going to buy all of the bonds necessary to finance the government spending machine?

Not too long ago, Uncle Sam could count on foreign investors to gobble up a big chunk of his IOUs, but times are changing. In 2008, foreign investors held more than half of the outstanding Treasury debt. Today, that amount has plunged to the lowest level since the turn of the century.

China and Japan have been the biggest foreign buyers of US debt in recent years. Japan ranks as the largest foreign creditor. The Japanese have continued to buy Treasuries over the last year but at a much slower pace. The country increased its holdings by just $15 billion in Q3. Over the last year, Japan has increased its US debt holdings by $130 billion.

Meanwhile, China is dumping Treasuries. It sold off about $13 billion in US Treasuries in Q3 and has shrunk its holdings by $40 billion over the last year.

Over the past five years, Japan’s and China’s combined holdings of US Treasuries have remains relatively stable. At the end of September, the two countries combined held about $2.34 trillion in US bonds, down slightly from the $2.37 trillion they held at the end of 2015. But Japan and China’s combined share of the rapidly skyrocketing US debt now amounts to just 8.7%, down from about 13% in 2015.

This is significant because as the US continues to increase the pace of its borrowing and spending, two of America’s biggest creditors appear less and less interested in financing this giant pile of debt. Borrowing is going up and up but foreign lending isn’t keeping pace.

So who is going to buy all of the debt that’s still coming down the pike?

It looks like the responsibility will increasingly fall on the Federal Reserve. In fact, the Fed is already backstopping the market and making this borrowing binge possible.

In Q3, the Fed bought $240 billion in US Treasuries. That brought its total Treasury holdings to $4.44 trillion. The central bank now holds a record 16.5% of the US debt load.

In the last 12 months, the Fed has doubled its holdings of Treasuries, adding a staggering $2.4 trillion in US government bonds to its balance sheet – most of that since March. The Fed’s total share of US debt has spiked from 9.3% in Q1 to 16.5%.

Without the Fed’s intervention in the bond market, it would be virtually impossible for the US government to borrow money at the current level. As we’ve seen, foreign demand is already waning, even with prices artificially inflated.  Interest rates would have to soar in order to entice average investors to buy US Treasuries. The market would collapse.

The Fed is financing all of this bond-buying with money created out of thin air.

As we have said before, the Federal Reserve had no exit strategy from its extraordinary monetary policy in 2008 and it certainly has no exit strategy today.

via ZeroHedge News https://ift.tt/3qiv27B Tyler Durden

China Slams Australia’s ‘Overreaction’: “How Arrogant & Shameless The Morrison Government Is!”

China Slams Australia’s ‘Overreaction’: “How Arrogant & Shameless The Morrison Government Is!”

Tyler Durden

Tue, 12/01/2020 – 13:05

China’s trolling Australia over the murders of civilians in Afghanistan by its special forces isn’t finished. Far from apologizing as Australian Prime Minister Scott Morrison has demanded, instead on Tuesday the state-run English language newspaper Global Times described that “China’s goodwill” is “futile with evil Australia” as the headline reads.

And yes the offending and now viral tweet is still live on Chinese foreign ministry spokesman Zhao Lijian’s Twitter account. The GT op-ed had this to say: “Australia’s evil acts toward China have made Chinese society not only surprised, but also disgusted. Many Chinese people feel as if they have swallowed a fly when hearing about Australia… How arrogant and shameless the Morrison government is!…Australia treats China’s goodwill with evil. It is not worthy to argue with it.“

“If it does not want to do business with China, so be it. Its politics, military and culture should stay far away from China – let’s assume the two countries are not on the same planet. As a warhound of the US, Australia should restrain its arrogance. Particularly, its warships must not come to China’s coastal areas to flex muscles, or else it will swallow the bitter pills.)” the op-ed said.

Quickly spotlighting details of the escalating trade spat and Beijing’s version of events which is underlying the latest China trolling (and fueling that is Australia’s criticisms of Beijing’s handling of the coronavirus outbreak), GT continued:

China has never associated bilateral trade with politics between the two countries. China imposed tariffs on Australian barley for dumping and government subsidies, and imposed tariffs on Australian wine for the same reason. Moreover, pests have been found in Australian timber that threaten China’s ecology, and Australian lobsters have been found to have high levels of cadmium. China didn’t fabricate them. In terms of trade, China won’t fear it if Australia brings the cases to the WTO.

China firmly maintains and advocates free trade. China and Australia are signatories to the Regional Comprehensive Economic Partnership. Australia has carried out more than 100 anti-dumping and anti-subsidies investigations on Chinese products, while China only carried out a few against Australian products. Beijing does not fear going to the WTO with Canberra. China will acknowledge it if it loses, but the result will certainly be that all Australia’s accusations will fall flat. 

Beijing knows it holds all the cards, and that Canberra will soon be desperate to normalize trade ties and relations once again, after major Aussie commodities exports to its number one foreign market earlier this month were blocked and/or were hit with huge tariffs by China.



China’s foreign ministry spokesman Zhao Lijian, file image via The Australian.

Meanwhile, speaking of Monday’s unified ‘outrage’ among Australia’s political class and media and PM Morrison’s demand of an apology over the offending doctored image tweet showing an Australian soldier poised over an Afghan child with a bloody knife, the Chinese Embassy in Canberra issued an official statement on its website, saying “The rage and uproar of some Australian politicians and media is nothing but misreading of and overreaction” to the tweet.

“Yesterday, Secretary of [Australia’s] DFAT made a complaint to the Chinese Ambassador over a phone call about the twitter post of Mr Zhao Lijian. The Ambassador refuted the unwarranted accusations as absolutely unacceptable,” the statement said.

The statement continued:

The accusations made are simply to serve two purposes. One is to deflect public attention from the horrible atrocities by certain Australian soldiers. The other is to blame China for the worsening of bilateral ties. There may be another attempt to stoke domestic nationalism.

All of this is obviously not helpful to the resetting of bilateral relationship. It’s our advice that the Australian side face up to the crimes committed by the Australian soldiers in Afghanistan, hold those perpetrators accountable and bring justice to the victims.

And finally the Chinese embassy urged the Australian side to “take constructive practical steps” to help bring the previously healthy bilateral relationship “back to the right track.”

But it appears each side is locked in a point of no return and there’s only bottom from here, especially given leadership in both countries is now tapping into and stoking popular domestic anger. 

via ZeroHedge News https://ift.tt/2VnQPwr Tyler Durden

A challenge to hendiadys in the law

There’s a good new article on hendiadys in the Constitution, and it suggests that this hendiadys thing is getting out of hand already. As the title of the article puts it, Hendiadys in the Language of the Law: What Part of “and” Don’t You Understand?. The article is by Elizabeth Fajans and Mary R. Falk, and is published in Legal Communication & Rhetoric.

(What is hendiadys, you ask? A figure of speech in which two terms separated by a conjunction work together as a single unit of meaning. The examples I discuss in “Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution range from the colloquial, as in Julia Child’s “good and dry”; to the literary, as in William Shakespeare’s “law and heraldry”; to the legal, as in “necessary and proper.”)

The argument by Fajan and Falks is thoughtful, clear, generous, and not about trivialities but first principles. It is a model critique, and I’m delighted to have seen it. They also discuss synecdoche and metaphor, which they do think have some place in legal interpretation. Perhaps more on that in time, but I will focus in this post on their argument about hendiadys.

The gist of the argument is that hendiadys is a literary figure that emphasizes “doubt, self-deception, multiplicity, complexity, and ambiguity.” Those characteristics make this figure of speech “sit uncomfortably in legal texts or, for that matter, in instructional materials on assembling an IKEA couch.” But it is not merely unlikely that hendiadys appears in legal texts. Fajans and Falk conclude that it should be a priori excluded from the interpretive options:

Beginning our research, we found sparse mention of hendiadys—until Professor Bray’s article was published, eliciting considerable comment and other explorations of hendiadys in law. We soon became convinced that not only was it unlikely that many, if any, binomial expressions in the law are hendiadys, but even if some are, that its use as an interpretive strategy is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is multiplicity and complexity. . . . Our takeaway is therefore simple: some literary devices, like hendiadys, have no proper place in the language of the law or in its interpretation . . . .

Let me mention three points of agreement and three points of disagreement between me and Fajans and Falk.

Agreement 1: Hendiadys is often used in literary contexts as a means of unsettling language and expressing ambiguity. In such contexts, the effect produced by hendiadys can be to make the author’s words and phrases like the shattered pieces of two small whaling boats in Moby Dick: “the odorous cedar chips of the wrecks danced round and round, like the grated nutmeg in a swiftly stirred bowl of punch.”

Agreement 2: plain speech is an aspiration in the law, and in our culture of legal production it would be inappropriate to include such self-conscious literary pyrotechnics in a constitution, statute, or rule.

Agreement 3: in the places where I argue a hendiadic reading is best, a non-hendiadic reading is possible. That is, we could read “cruel and unusual” and “necessary and proper” as each offering distinct requirements, as each expressing a tautology, as each being a hendiadys, and so on.

Disagreement 1: I see no reason to rule out, as a matter of definition, all the non-literary uses of hendiadys. Here is the key move by Fajans and Falk (footnotes omitted):

Because hendiadys requires a seeming mismatch, most literary scholars would exclude from this literary device everyday expressions with clear and settled meanings like “nice and hot”; phrasal collocations or tautologies like “lord and master” or “high and mighty,” in which two words are used simply for emphasis and elevation, and expressions using related terms, like “pen and ink” or “wind and rain.” For conjoined terms to be hendiadys, the element of the unexpected must be present . . . .

Once that move is made, the rest of the argument follows. But the premise is contestable. There is debate about how broadly or narrowly to define this figure of speech (as discussed by Fajans and Falk and by me). And although our figures of speech may seem sharply defined, that is a bit illusory, for they are our ways of demarcating phenomena that are much more overlapping and spectral (in spectral‘s two senses).

Nevertheless, hendiadys pervades oral and colloquial speech (e.g., “tried and true” and many other examples in my article). And I also don’t think we can draw such a sharp line between the literary and the “everyday.” It is especially at the oral, the ritual, the poetic, and the proverbial that the separation of “literary” and “everyday” is most likely to mislead us. Consider the Book of Common Prayer, and its “general confession” (which would have been said by George Washington and John Marshall and others every time they attended church services). In this prayer the worshipper says to God: “We have erred and strayed from thy ways like lost sheep.” “Erred and strayed” is a hendiadys, not quite a tautology, and it can be subjected to the multiplicity and ramifying meanings that are common with this figure in literary texts. But it is also everyday. In fact, twice-a-day: it is part of daily Morning and Evening Prayer. It is because the Founders were steeped in a literary and oral culture in which this figure appeared–”pervasively” would be too strong, but still the point is that it appeared with some frequency and was not marked as only “literary”–I think we should be unsurprised if the Founders would have used the figure instinctively, as a way to get close to what was meant, rather than for conscious artistry.

Disagreement 2: although plain speech is good in a law, it is not as easy as it seems. Fajan and Falk are alert to this, recognizing that the search for “fixed meaning” in legal texts may be “[q]uixotic[].” But I would go further. No matter what the skill or good intentions of the drafters, law will pervasively have an edge (and maybe an interior) of indeterminacy. This is so because, as Aristotle recognized, circumstances arise that are unforeseen by the lawmaker. But it is also so, even on day 1 after the passage of a statute, because of the slipperiness of language itself. (This is one reason I think interpreters should consider pragmatics as well as semantics–see The Mischief Rule–but I digress.) If you think law is going to have a non-trivial amount of indeterminacy, at least law when it is at issue in not-subject-to-Rule-11-sanctions litigation, then we should be alert to how figures of speech can help us to understand or misunderstand, resolve or create, ambiguity.

Disagreement 3: To understand whether a phrase should be read as a hendiadys, we need other interpretive resources, including (for the Constitution) the ratification debates and early practice and judicial interpretation. Fajans and Falk note that they are not offering a rejoinder on those fronts. But I don’t think the question of whether or not to adopt a hendiadic reading can be settled by the text. The text can be interpreted hendiadically and non-hendiadically. So when Fajans and Falk point out that non-hendiadic readings are possible, I agree. But the next step–unless one excludes hendiadys a priori–is to consider which of the readings is most consonant with the modalities and other resources of interpretation in our legal tradition.

If hendiadys were limited to literary texts like Hamlet, Fajans and Falk are right that it would be out of place in statutes and constitutions. But it appears in many kinds and registers and genres of speech. We should not be surprised that it appears in law.

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Can Married People on Long-Term Student Visas Get Divorced in the U.S.?

First, some background: Early this year, the Ninth Circuit decided a case called Park v. Barr, involving a woman who had illegally overstayed her visa:

Woul Park, a Korean citizen, married Byung Gug Choi in Korea in 1988. Park came to the United States on a B-2 tourist visa in 2003. Park overstayed her visa and has resided in California ever since. Park and Choi jointly filed a Request for Divorce at the Korean Consulate in California, and the divorce became valid and final under Korean law as of May 12, 2009. Following the divorce, Park married James Yong Park, a United States citizen, in California. Park applied for and received lawful permanent residency based on this putative marriage. Park then applied for naturalization in 2014.

USCIS denied Park’s application for naturalization because it determined that Park’s divorce from Choi was invalid under California law, thus invalidating her marriage to James Yong Park. USCIS found that both Park and Choi were California domiciliaries when their Korean divorce decree was executed. The agency then concluded that Park’s purported 2009 divorce would not have been recognized under California law because California Family Code § 2091 bars the state from recognizing a foreign divorce when both parties are California domiciliaries.

This finding set off a cascade of legal consequences. If Park’s divorce from Choi was invalid under California law, then Park’s marriage to James Yong Park was similarly invalid. Park’s application for permanent residence was dependent on her lawful marriage to a United States citizen. Since Park’s marriage was invalid at its inception, USCIS reasoned, Park could never have been lawfully admitted for permanent residency. And finally, since Park had to show that she had been lawfully admitted as a permanent resident in order to naturalize, see 8 U.S.C. § 1427(a)(1), USCIS denied her application for naturalization….

We [disagree] and hold that Park, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Her divorce and subsequent marriage were therefore valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization.

So Ms. Park won, because federal law preempted state law, and this made her Korean divorce (and thus her later California marriage, which doesn’t require California domicile) valid. But a few months later, a Nevada court applied the same reasoning against a noncitizen lawfully present on a student spouse visa, in Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020):

Ahed Said Senjab and Mohamad Abulhakim Alhulaibi … are citizens of Syria. They married in Saudi Arabia on February 17, 2018. The parties have one minor child, Ryan …, who was born on February 16, 2019.

[Alhulabi] obtained an F-1 [student] Visa and came to the United States to attend graduate school at UNLV in 2018. Mr. Alhuliabi alleged that [Senjab] applied for an F-2 Visa [for spouses and dependent children of F-1 student visa holders] in August, 2018, and that an F-2 Visa was granted to her and the parties’ child at the end of 2019….

The parties and their child arrived in Las Vegas, Nevada, on January 13, 2020. On February 14, 2020, [Senjab] filed an Application for Protective Order …. The court granted the request and extended the protective order until February 14, 2021. The Extended Protective Order [basically gives Senjab custody during the week and Alhulaibi on weekends].

[Senjab] filed a Complaint for Divorce on March 24, 2020. Ms. Senjab seeks a divorce, child custody and support orders, and spousal support….

For this Nevada court to have subject matter jurisdiction to grant a divorce, one of the parties must be a bona fide resident of the state of Nevada [for at least 6 weeks before the suit was brought]…. Residence is synonymous with domicile. Physical presence, together with intent, constitutes bona fide residence for divorce jurisdiction. Aldabe v. Aldabe (Nev. 1968)….

This court finds that pursuant to state law, undocumented immigrants who physically live in Nevada have been able to access Nevada courts to obtain a divorce so long as they have been physically present in Nevada, and so long as they establish a subjective intention to make Nevada their home.

[But t]he Ninth Circuit Court of Appeals, in Park v. Barr, held that federal law has preempted state law. The holding in Park bars nonimmigrants who come to the United States on a visa issued pursuant to Title 8 of the United States Code [such as these parties] from establishing the subjective intent that is required to give this Nevada court subject matter jurisdiction to grant a divorce….

The federal law, prohibiting a nonimmigrant from establishing domicile, continues even if a visa is overstayed. In Park, Woul Park, a nonimmigrant, came  to the  United  States on a B-2 Visa, and stayed in the United States after the lawful status had lapsed. The Ninth Circuit Court of Appeals held that Woul Park was precluded from establishing lawful domicile in California by operation of federal law….

Under federal law, nonimmigrants that come to the United States through F-1 and F-2 visas are required to maintain a residence in their country of citizenship with no intention of abandoning it. [Senjab] and [Alhulabi] were permitted to enter the United States on an express condition not to abandon the foreign residence. Congress has not permitted [Senjab] and Mohamad Abulhakim Alhulaibi to lawfully form a subjective intent to remain in the United States….

[Senjab]’s subjective intent to make Nevada her home is precluded by Congress’ definition of the nonimmigrant classification. This court concludes that Nevada lacks subject matter jurisdiction to grant a divorce….

The case is now on appeal to the Nevada Supreme Court. Immigration law isn’t my area of expertise, so there may be something I’m missing here, but this seems to be practically quite significant.

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Brickbats: December 2020

brickbats3

The San Diego Police Department has issued 82 citations for “seditious language” since 2013. Because such citations are considered infractions rather than misdemeanors, those cited under the law are not entitled to a jury trial or legal counsel. After an investigation by local media, the department ordered officers not to enforce a century-old city ordinance banning such speech.

Kentucky resident John Pennington faces a fine of up to $569,000 and up to six months in jail after being caught sightseeing in Banff National Park in Alberta, Canada. Canada has closed its borders to U.S. travelers to reduce the spread of the coronavirus. It will allow U.S. residents to drive through Canada to Alaska, but they must take the most direct route.

Officials with California’s East Side Union High School District have placed a teacher on leave after he was seen teaching a virtual math class while not wearing a shirt, a violation of a school dress code he had reminded students about just days earlier.

Police in Miners Rest, Australia, arrested Zoe Buhler for attempting to organize a protest of a lockdown imposed in the state of Victoria, which officials claim is necessary to reduce the spread of coronavirus. She has been charged with incitement.

State and local officials spent $66 million converting Chicago’s McCormick Place convention center into an emergency hospital to treat coronavirus patients. It ended up treating just 38 patients, at a cost of about $1.7 million each.

Many owners of Minneapolis businesses that were damaged and looted in riots following George Floyd’s death say they need to install security shutters to protect their windows. But the city banned such shutters 16 years ago and denied the sole request for an exemption made in that time.

The Chicago Police Department has banned protests, even peaceful ones, on the block where Mayor Lori Lightfoot lives. Residents of the area have complained about the efforts cops are taking to keep protesters out, which include barricades in the street and checking people’s IDs before letting them enter the neighborhood. Cops say city and state laws ban protests in residential neighborhoods, but when a local newspaper asked them to list other instances in which they have blocked such protests, police did not provide any examples.

Aurora, Colorado, police officers ordered at gunpoint a mother and her children out of the SUV the woman was driving, made them lie down on the pavement, and handcuffed them after mistaking her vehicle for a motorcycle reported stolen in another state. Police Chief Vanessa Wilson blamed an error by a license plate scanner.

Thirteen people died after police in Lima, Peru, raided a disco that was open in defiance of restrictions the government says are needed to fight the coronavirus pandemic. The raid set off a stampede for the door, causing people to be trampled or trapped in the tight space and suffocate.

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Can Married People on Long-Term Student Visas Get Divorced in the U.S.?

First, some background: Early this year, the Ninth Circuit decided a case called Park v. Barr, involving a woman who had illegally overstayed her visa:

Woul Park, a Korean citizen, married Byung Gug Choi in Korea in 1988. Park came to the United States on a B-2 tourist visa in 2003. Park overstayed her visa and has resided in California ever since. Park and Choi jointly filed a Request for Divorce at the Korean Consulate in California, and the divorce became valid and final under Korean law as of May 12, 2009. Following the divorce, Park married James Yong Park, a United States citizen, in California. Park applied for and received lawful permanent residency based on this putative marriage. Park then applied for naturalization in 2014.

USCIS denied Park’s application for naturalization because it determined that Park’s divorce from Choi was invalid under California law, thus invalidating her marriage to James Yong Park. USCIS found that both Park and Choi were California domiciliaries when their Korean divorce decree was executed. The agency then concluded that Park’s purported 2009 divorce would not have been recognized under California law because California Family Code § 2091 bars the state from recognizing a foreign divorce when both parties are California domiciliaries.

This finding set off a cascade of legal consequences. If Park’s divorce from Choi was invalid under California law, then Park’s marriage to James Yong Park was similarly invalid. Park’s application for permanent residence was dependent on her lawful marriage to a United States citizen. Since Park’s marriage was invalid at its inception, USCIS reasoned, Park could never have been lawfully admitted for permanent residency. And finally, since Park had to show that she had been lawfully admitted as a permanent resident in order to naturalize, see 8 U.S.C. § 1427(a)(1), USCIS denied her application for naturalization….

We [disagree] and hold that Park, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Her divorce and subsequent marriage were therefore valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization.

So Ms. Park won, because federal law preempted state law, and this made her Korean divorce (and thus her later California marriage, which doesn’t require California domicile) valid. But a few months later, a Nevada court applied the same reasoning against a noncitizen lawfully present on a student spouse visa, in Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020):

Ahed Said Senjab and Mohamad Abulhakim Alhulaibi … are citizens of Syria. They married in Saudi Arabia on February 17, 2018. The parties have one minor child, Ryan …, who was born on February 16, 2019.

[Alhulabi] obtained an F-1 [student] Visa and came to the United States to attend graduate school at UNLV in 2018. Mr. Alhuliabi alleged that [Senjab] applied for an F-2 Visa [for spouses and dependent children of F-1 student visa holders] in August, 2018, and that an F-2 Visa was granted to her and the parties’ child at the end of 2019….

The parties and their child arrived in Las Vegas, Nevada, on January 13, 2020. On February 14, 2020, [Senjab] filed an Application for Protective Order …. The court granted the request and extended the protective order until February 14, 2021. The Extended Protective Order [basically gives Senjab custody during the week and Alhulaibi on weekends].

[Senjab] filed a Complaint for Divorce on March 24, 2020. Ms. Senjab seeks a divorce, child custody and support orders, and spousal support….

For this Nevada court to have subject matter jurisdiction to grant a divorce, one of the parties must be a bona fide resident of the state of Nevada [for at least 6 weeks before the suit was brought]…. Residence is synonymous with domicile. Physical presence, together with intent, constitutes bona fide residence for divorce jurisdiction. Aldabe v. Aldabe (Nev. 1968)….

This court finds that pursuant to state law, undocumented immigrants who physically live in Nevada have been able to access Nevada courts to obtain a divorce so long as they have been physically present in Nevada, and so long as they establish a subjective intention to make Nevada their home.

[But t]he Ninth Circuit Court of Appeals, in Park v. Barr, held that federal law has preempted state law. The holding in Park bars nonimmigrants who come to the United States on a visa issued pursuant to Title 8 of the United States Code [such as these parties] from establishing the subjective intent that is required to give this Nevada court subject matter jurisdiction to grant a divorce….

The federal law, prohibiting a nonimmigrant from establishing domicile, continues even if a visa is overstayed. In Park, Woul Park, a nonimmigrant, came  to the  United  States on a B-2 Visa, and stayed in the United States after the lawful status had lapsed. The Ninth Circuit Court of Appeals held that Woul Park was precluded from establishing lawful domicile in California by operation of federal law….

Under federal law, nonimmigrants that come to the United States through F-1 and F-2 visas are required to maintain a residence in their country of citizenship with no intention of abandoning it. [Senjab] and [Alhulabi] were permitted to enter the United States on an express condition not to abandon the foreign residence. Congress has not permitted [Senjab] and Mohamad Abulhakim Alhulaibi to lawfully form a subjective intent to remain in the United States….

[Senjab]’s subjective intent to make Nevada her home is precluded by Congress’ definition of the nonimmigrant classification. This court concludes that Nevada lacks subject matter jurisdiction to grant a divorce….

The case is now on appeal to the Nevada Supreme Court. Immigration law isn’t my area of expertise, so there may be something I’m missing here, but this seems to be practically quite significant.

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“And Why Stop There?”: CNN Analyst Calls For Sweeping Regulation Of Free Speech On The Web

“And Why Stop There?”: CNN Analyst Calls For Sweeping Regulation Of Free Speech On The Web

Tyler Durden

Tue, 12/01/2020 – 12:45

Authored by Jonathan Turley,

We previously discussed the unrelenting drumbeat of censorship on the Internet from Democratic leaders, including President-elect Joe Biden. Those calls are growing as anti-free speech advocates see an opportunity in the Biden Administration to crackdown on opposing views. One vocal advocate of censorship and speech controls has been CNN media analyst Oliver Darcy who just ratcheted up his call for de-platforming opposing views.

Like many anti-free speech advocates, Darcy simply labels those with opposing views as spreading “disinformation” and demands that they be labeled or barred from social media. In a recent newsletter, Darcy calls for every tweet by Trump to be labeled as disinformation while asking “and why stop there?” Precisely. Once you cross the Rubicon of speech regulation, there is little reason or inclination to stop.  Just look at Europe.

Darcy wrote:

“Nearly every tweet from the president at this point is labeled for misinfo. Which had me thinking. Why doesn’t Twitter just take the step of labeling his entire account as a known source of election disinfo? And why stop there? Why not label accounts that repeatedly spread claims the platform has to fact-check?”

There was a time from the very touchstone of American journalism was the rejection of such calls for censorship, including at CNN.

What is chilling about Darcy’s writings is that they reflect the view of many now in Congress and in the Democratic Party.  Indeed, they reflect many in the Biden campaign. Once a party that fought for free speech, it has become the party demanding Internet censorship and hate speech laws. President-Elect Joe Biden has called for speech controls and recently appointed a transition head for agency media issues that is one of the most pronounced anti-free speech figures in the United States. It is a trend that seems now to be find support in the media, which celebrated the speech of French President Emmanuel Macron before Congress where he called on the United States to follow the model of Europe on hate speech.

Darcy is calling for more active and extensive regulation of speech to protect users from thoughts or views that he considers false or dangerous: “Think of it as a version of NewsGuard for Twitter.”

“NewsGuard” has a lovely Orwellian sound to be added to other codes for censorship like Sen. Richard Blumenthal recently calling for “robust content modification” on the internet. Who can object to a NewsGuard, which Darcy describes like some beneficent St. Bernard watching over our news and social postings?  Of course, what Darcy considers “disinformation” or what Blumenthal considers “robust content modification” is left dangerously undefined.

So put me down as preferring free speech without the helpful guards and content modification. Instead, I hold a novel idea that people can reach their own conclusions on such is disinformation just as Darcy does.

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