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If the movement against abusive policing has an anthem, it’s “Lose Yo Job,” a rap spontaneously composed by Johnniqua Charles as she was detained outside a strip club in South Carolina in February. A video shot that night shows her wagging her butt and taunting a security guard as he holds her by the elbow. “You about to lose yo job,” she chants. “You about to lose yo job/ Get this dance!/ You about to lose yo job/ ‘Cause you are detaining me for nothin’.”

Charles was eventually released, and the guard himself later posted the video online, declaring “that rap was lit.” It went viral on a small scale, and then a remix by the producers DJ Suede and DJ iMarkkeyz went viral on a huge scale. It was helped along by an absurdist video featuring unauthorized cameos by everyone from Beyoncé to Elmo. More pointedly, the video showed the Minneapolis cops charged in the death of George Floyd. Soon activists were chanting the lyrics at demonstrations.

Since the song took off, Charles has raised more than $55,000 on GoFundMe. And the security guard? He still has his job, and TMZ reports that the video has landed him offers to work elsewhere too.

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The Los Angeles County Public Works Department has notified Grace Community Church it is terminating a lease for a parking lot the church has held since 1975. Church leaders say this is in retaliation for its so far successful challenge to state mandate’s barring indoor church services. The county has repeatedly tried to get a court order to close the church without success. County officials had warned church leaders of “repercussions” if they did not comply with the mandates.

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From Judge Patrick Bumatay’s dissent from denial of rehearing en banc today in Mai v. U.S. (9th Cir.), joined on this point by Judge Vandyke; you can ready the contrary view in the panel opinion:

[A.] Today, our court advances an extraordinarily sweeping view of government power. Against the text, history, and tradition of the Second Amendment, we hold that the government may forever deprive a person of the individual right to bear arms—if that person spends even one day committed involuntarily, even as a juvenile, and no matter the person’s current mental health soundness. Of course, we only adopt this view for the Second Amendment. For other, more fashionable constitutional rights, we would not countenance such an abridgment….

By all accounts, Duy Mai is an American success story. Mai was born in a Thai refugee camp to a Vietnamese family and moved to the United States at the age of two. As so many immigrants have, Mai has flourished in this country. [Details omitted. -EV] … Mai has been a productive member of society for nearly 20 years.

But like most people, Mai has faced his share of challenges. At the age of 17, he suffered from depression, for which he was involuntarily committed to a mental health hospital for a little over two months total after a Washington state court determined that he might be a harm to others. But since Mai’s commitment order expired in August 2000, he has not been re-committed and his medical record shows no reoccurrence of serious mental illness. He has no criminal history or substance abuse issues….

In 2014, Mai successfully petitioned the State of Washington to remove the state-law barrier [to possessing guns]. Mai submitted his medical history showing that he’s been free of depression since at least 2010 and that, based on the opinions of multiple psychologists, he is not considered a significant risk of suicide or harm to others. Based on this evidence and declarations from his friends and family, the Washington court agreed that Mai doesn’t present a substantial danger to himself or to the public and that the symptoms that led to his commitment are not reasonably likely to reoccur. Thus, today, under state law, Mai’s right to possess a firearm has been fully restored.

[But] federal law … prohibits an individual who has been “committed to a mental institution” from possessing a firearm [so Mai sued] …. Without bothering itself with the text, history, or tradition of the Second Amendment, [our court’s panel opinion] decided that, due to Mai’s brief commitment, he was not a “law-abiding, responsible” citizen and, therefore, not protected by the Second Amendment’s “core.” In so ruling, the court compared Mai’s past commitment to a conviction for domestic violence. The court also concluded that Washington’s adjudication of his mental soundness and subsequent restoration of his gun rights—and Mai’s present-day mental health status—were irrelevant to the constitutional analysis. Finally, with the help of studies from Sweden, Australia, Italy, and other countries, the court ruled that the permanent deprivation of Mai’s fundamental right cleared intermediate scrutiny. We should’ve corrected the layers of errors in this decision through en banc review….

[B.] If operating on a clean slate, I would hew to Heller‘s and McDonald‘s fidelity to the Second Amendment’s history, tradition, and text. The precise contours of such a review should be subject to further refinement; but we might, as Justice Scalia suggested in Heller itself, look to the original meaning …. Under this view, a law may only constitutionally prohibit the core right to keep arms in the home for self-defense if the prohibition falls within an exception understood to be outside of the Amendment’s scope at the time of the Founding….

[S]cholars have “search[ed] in vain through eighteenth-century records to find any laws specifically excluding the mentally ill from firearms ownership.” Such laws would be highly unusual in a context where regulations focused on use rather than ownership. Not until 1930 do we see laws specifically touching on gun ownership and mental health, after the ABA-approved Uniform Firearms Act prohibited delivery of a pistol to any person of “unsound” mind….

Given the paucity of Founding-era laws specifically prohibiting gun ownership by the mentally ill, we are better served by exploring the dominant thinking on mental illness in that period. On this, the evidence is clear: temporary mental illness didn’t lead to a permanent deprivation of rights.

Influential philosophers of the day understood that rights attach with the attainment of “reason” and, correspondingly, the loss of rights persisted only through the loss of reason. This understanding accorded with a deeply rooted common law tradition recognizing that mental illness was not a permanent condition. Thus, an “insane” person

was one who “by disease, grief, or other accident hath lost the use of his reason.” 1 William Blackstone, Commentaries *304. But “the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed” and at that point the person’s rights restored….

These views on the mentally ill were reflected in historical practices and laws. Even as Virginia sought to ratify its constitution with a limitation on the civil rights of “lunatics,” such limitation was only “during their state of insanity.” ….

From this historical record a clear picture emerges: mental illness was considered a temporary ailment that only justified a temporary deprivation of rights…. Heller‘s observations about “presumptively lawful regulatory measures” does not change this analysis. Heller‘s reference to firearm prohibitions for the “mentally ill” as being “presumptively lawful,” apply to those who are presently mentally ill. {As the Sixth Circuit held, “Heller‘s presumption of lawfulness should not be used to enshrine a permanent stigma on anyone who has ever been committed to a mental institution for whatever reason.”} ….

[C.] [The following portions of the opinion were also joined by Judges Ikuta, Bade, and Hunsaker. -EV]

As I have shown, § 922(g)(4)’s application to Mai has no basis in the text, tradition, and history of the Second Amendment. But until our court agrees to apply such a test to Second Amendment claims under en banc review or the Court provides us with further guidance, we remain bound by the Chovan test…. First, we determine if the law “burdens conduct protected by the Second Amendment,” “based on a historical understanding of the scope of the [Second

Amendment] right[.]” Second, we decide what level of scrutiny applies based on our assessment of “(1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law’s burden on the right.” …

The [panel] erred … by incorrectly identifying intermediate scrutiny as the proper standard. As we have recently explained, step two of Chovan “is a simple inquiry: if a law regulating arms adversely affects a law-abiding citizen’s right of defense of hearth and home, that law strikes at the core Second Amendment right” [and must be subject to strict scrutiny].

Under this framework, the application of § 922(g)(4) to Mai strikes at the core Second Amendment right—and guts it. Indeed, § 922(g)(4) completely deprives Mai of the ability to possess a firearm, even within the home, where protections are “at their zenith.” In any other context, laws that burden the core of a fundamental right are invariably analyzed under heightened scrutiny—e.g., restrictions on the “content” of speech rarely survive strict scrutiny, nor do laws that restrict “core” political speech. We should not treat the Second Amendment any different….

[The panel] evaded any form of strict scrutiny, despite admitting that § 922(g)(4)’s “lifetime ban” on Mai’s Second Amendment right was “quite substantial,” by minimizing the law’s burden as falling on only a “narrow class” of individuals.

In doing so, the court seemingly pulls new doctrine out of its hat and magically transforms a fundamental right that belongs to an individual, into one that is class-based. Rather than face the total and permanent deprivation of the core Second Amendment right for Mai (and the class of people like him), the court refocused the inquiry on the size of the class. And ta-da!, the court holds, intermediate scrutiny applies. Like most magicians, the court refused to explain its act.

Because the law deprives only a “narrow class” of individuals their Second Amendment right, ipse dixit, it is analyzed only under intermediate scrutiny. Such reasoning is even more perplexing given that heightened scrutiny was originally announced as a method to protect the rights of “discrete and insular minorities.” Today, according to the court, the fact that Mai belongs to a “narrow class” is, paradoxically, the very reason to lower the level of scrutiny applied to him. We should have corrected this jurisprudential sleight of hand.

Next, the court justified its decision to apply intermediate scrutiny by refusing to recognize Mai as a “law- abiding, responsible citizen.” But its refusal to do so is baffling. Besides a brief involuntary commitment as a youth, nothing in the record shows that Mai is anything but a “law-abiding, responsible citizen.” Instead, it shows that Mai is a person of advanced education and demonstrated professional achievement, with strong community and family support and no history of criminal activity or substance abuse.

Yes, he suffered from significant depression as a teen, but recent psychological evaluators and Washington state have concluded he is not currently mentally ill and presents no risk of violence to others or himself. Nor is that reasonably likely to change in the future. Washington, in turn, restored his right to possess firearms under state law.

But this court decided it knows better, holding that, “[r]egardless of [Mai’s] present-day peaceableness,” Mai is not a “law-abiding, responsible citizen” because of his brief commitment 20 years ago. The court, with no analysis, held that “[t]he same logic” used to prohibit a domestic-violence convict from possessing a firearm applied here—to a person like Mai. But a criminal conviction is not the same as mental illness. Unless pardoned, expunged, or set aside, a conviction always remains a conviction under the law. And, at least for felony convictions, there is historical support for a law resulting in forfeiture of property and rights. See 2 William Blackstone, Commentaries *377 (describing the possible punishments of serious crime as including “confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands for life: others induce a disability, of holding offices or employments, being heirs, executors, and the like”)….

So, while the law may hold that “once a convict, always a convict,” tradition, history, and elementary psychology teach us that “once mentally ill, not always mentally ill.” This is the distinction that the court ignores. Indeed, under the court’s extreme reading of the law, any person falls outside of the Constitution’s core protection if that person spends even one day in commitment—even as a youth! Nothing in the text, history, and tradition of Constitution supports this view. The proper inquiry would have recognized that the lifetime ban imposed by § 922(g)(4) on Mai is unequivocally a complete deprivation of his core right to home gun ownership. As such, the law is unconstitutional….

[D.] [The following portions of the opinion were also joined by Judges Ikuta, Bade, Hunsaker, Bennett, Collins, and Bress.-EV]

Even accepting the court’s error and analyzing Mai’s claim under intermediate scrutiny, we still got it wrong…. In justifying the “reasonable fit” between the government’s objective here, the court relies on several ill-suited studies, many compiling data from foreign countries. One of the primary studies relied on by the court analyzed suicide risk after release from involuntary commitment, but offered no information about suicide risk for someone like Mai—20 years past his commitment and free of mental health issues. {Of the patients considered, 98% were considered for only a year following their commitment, and the remaining 2% were studied from 2.5 to 8.5 years post-commitment.} But undeterred, the court offers additional studies, perhaps even more inapplicable, such as a study focused on patients from Sweden {[which] involved all types of psychiatric diagnoses, not just depression},”community care” patients from Italy and Australia {[t]he court doesn’t even define “community care,” much less its relevance to Mai},an”[o]ut-patients” study with a meager 34 observations,and another study of predominately foreign patients (with some U.S. data from 1969)….

Many years ago, judges took a turn as pseudo- psychologists and waded into whether a woman’s mental health may be balanced against her constitutional rights. That case is generally not treated kindly today. I fear the court goes down the same path.

Heller‘s endorsement of text, history, and tradition as the proper lens for evaluating the scope of the Second Amendment was not accidental. There, the Court emphatically disapproved of courts determining on an ad hoc basis whether certain individuals were undeserving of the full complement of fundamental rights. Duy Mai deserves better. Our Constitution deserves better….

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Darren Summerville, a Georgia appellate lawyer, very kindly helped me pro bono as local counsel in Chan v. Ellis, back in the day, and is now helping me with a new case. I was talking to him about the briefing schedule, and he told me:

Docketing—September 8

Initial NT Brief/Merits (20 days)

Initial EE Brief/Merits (20 days from filing of NT Brief)

NT Reply Brief (20 days post filing of EE Brief)

Took me a moment to figure out: Why NT and EE?

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A week after Massachusetts Gov. Charlie Baker was sued in federal court for keeping video arcades closed as a COVID-19 hazard while allowing casinos to reopen, he has abandoned that arbitrary distinction. Baker announced today that he will let arcades reopen next week. His explanation illustrates how blithely politicians invoke public health to justify capricious rules that wipe out people’s livelihoods.

Attorney Marc Randazza filed the federal lawsuit on behalf of Gideon Coltof, who owns Bit Bar, a restaurant-arcade in Salem. Randazza argued that Baker’s policy, which distinguished between two kinds of businesses that feature electronic games even though they pose similar risks of virus transmission, imposed an unconstitutional, content-based restriction on speech and violated the 14th Amendment’s guarantee of equal protection.

Baker originally included arcades in the list of businesses that were allowed to reopen in early July. But he reversed course without explanation, offering nothing but boilerplate about “the latest science” and “input from public health experts.” Now he has flip-flopped again, and his reasoning remains hazy.

“Arcades have been open for a while in some of the states surrounding us, and we spend a lot of time talking to our colleagues in those states,” Baker said. “And they basically said that with capacity limitations, [physical distancing] rules, hand sanitizer, and all the rest, that they’ve been able to be open safely. And we felt based on the data we got from our colleagues in other states that that was enough to move forward.”

That explanation raises the question of why those neighboring states saw fit to let arcades operate when Baker thought it was too risky, even with precautions like the ones he mentioned. What sort of “science” informed Baker’s conclusion that video games played for fun were inherently more dangerous as disease vectors than video games played for the chance to win money?

Joey Slawinski, operations manager of Apex Entertainment in Marlborough, has an explanation, but it is not exactly scientific. “We believe it is due to the revenue generated by the casinos to the state,” he told Boston.com.

Coltof, who met repeatedly with state officials in an effort to resolve the issue before filing his lawsuit, did not hear about the sudden reversal until Baker made his announcement. “I’m certain our lawsuit had something to do with it,” he said. “The state has been immovable on this for months. As of August 31, all we heard was, ‘We’re not changing, we’re not moving, we’re doing nothing.’ And then we filed our lawsuit last week. It was served to the Governor on Tuesday, and two days later he’s out in front of the microphones. Wow.”

Several state legislators also criticized Baker’s policy and sought to intercede on behalf of arcade owners. But Baker supposedly had his reasons for keeping arcades closed, although he has yet to elucidate them. Ruling by executive fiat means never having to explain yourself, let alone say you’re sorry.

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