“[The] Delaware [court system] is now almost actively hostile toward cases they think are without merit,” Widener lawprof Larry Hamermesh tells the Wall Street Journal, regarding flimsily based suits in which lawyers seek to block corporate mergers and then collect fees when the target agrees to settle in order to get the deal done. Imagine that — almost actively hostile. If this keeps up, are lawyers supposed to hold back on unmeritorious cases, and only file the meritorious sort? Wouldn’t that be, like, monotonous?

That’s the upshot of a recent decision by the Seventh Circuit Court of Appeals in the case of Ezell v. City of Chicago. This was a challenge to the new regulations the city enacted in the wake of McDonald v. City of Chicago case, which applied the Second Amendment to the states. 

In an attempt to circumvent the Supreme Court’s clear holding, Chicago’s ordinance first mandates that would-be gun owners receive training at a firing range but then prohibits firing ranges from operating in the city. The court, in a striking opinion by Judge Diane Sykes (put her on your Supreme Court shortlist for the next Republican administration), tells the city to go back to the drawing board.

I won’t go into the details, but the court applied something greater than intermediate (but “not quite strict”) scrutiny and found that Chicago has not presented anything approaching a compelling reason for its restriction. Here’s an analysis of the opinion by Josh Blackman and some follow-up commentary from Cato associate policy analyst Dave Kopel.

Gratifyingly, Judge Sykes cites the Pandora’s Box article that Josh and I published early last year in the run-up to the McDonald argument (see footnote 11 on page 31). It’s quite an honor to appear in the same footnote as Randy Barnett, Steven Calabresi, Brannon Denning, Glenn Harlan Reynolds (the Instapundit), and many other noted scholars — including Akhil Amar, who in the wake of our Obamacare debate and bet may not appreciate it as much.

Congratulations to the intrepid Alan Gura (who also litigated McDonald and Heller v. District of Columbia) and to all the citizens of Chicago!

Because we care about individual liberty here, we think you should be able to engage in self-defense to protect that liberty (and your life, if it comes to that). That includes the right to armed self-defense, of course, a right that becomes all the more important when encountering potential assailants who are stronger and/​or more numerous than you.

Indeed you might recall from the legal fight to guarantee an individual right to keep and bear arms, that my colleague Tom Palmer once fended off some anti-gay marauders by just showing them that he had a gun.

And now we see that same story play itself out, except the would-be victim scared off a homophobic gang by merely maintaining the impression that he had a gun:

The situation could have gone either way: I could end up beaten or dead, or we could all go our separate ways.

All I could think to do was to get to my backpack and find my phone. As I fumbled for the phone, I heard one of them say, “Does he have a gun?”

So I kept my hand in my backpack, allowing them to wonder whether I was reaching for a gun. Then a couple of them started to run away, and the others soon followed. I got back on my bike and pedaled as fast as I could out of there.

When I got home, I began to reflect on what had happened, and more disturbingly what could have happened. I am in contact with the LGBT unit of the police department to file a report. But I’ve thought a lot about the turning point of the situation — the fact that one of them thought that I might have a gun. None of them said, “There’s a law against antigay hate crimes!” That wasn’t the deterrent. It was the possibility that I might have had a gun that saved my life Friday night.

It’s unfortunate that the people Mr. LaSalvia encountered are around — whatever their motivations — but would we be in a better world if people like him couldn’t imply the potential for armed self-defense?

Of course, in DC, Chicago, and many other places — which, after the recent Supreme Court rulings, must allow guns to be kept at home — it’s still illegal to carry a gun (open or concealed). If the thugs Mr. LaSalvia ran into knew the local gun regulations (as many professional criminals do) and accurately gauged their target as a law-abiding citizen, they would have known that he was bluffing. 

Is that what gun-control proponents — many of whom I surmise strongly support gay and women’s rights — want?

(H/​t: Lindsay Charles)

Harvey Silverglate, co-founder and chairman of the board of the Foundation for Individual Rights in Education (FIRE) and a Cato adjunct scholar, has an excellent op-ed in today’s Wall Street Journal highlighting the emerging problem of due process violations on college campuses. As Ilya Shapiro has written about previously, the Department of Education’s Office of Civil Rights recently sent out a letter outlining new procedural requirements for dealing with claims of sexual harassment and assault. Despite its cordial opening — it begins with the words “Dear Colleague” — the letter carries the de facto force of law: universities that receive public funds (nearly all of them) may have their funding stripped if they don’t follow the new guidelines.

The new guidelines threaten to turn the campus courts at some of our most august institutions into “kangaroo courts” that ignore basic rights of the accused, such as the right to confront accusers. Most disturbingly, universities are now commanded to use a “preponderance of the evidence” standard in adjudicating claims of sexual assault, including rape. The preponderance of the evidence standard is little more than a hunch, and is often described as a simple 50.01% probability of guilt.

In 1970, in the case of In re Winshop, the Supreme Court ruled that a standard of proof “beyond a reasonable doubt” is constitutionally required in criminal cases. The Court wrote:

The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.

Moreover, use of the reasonable doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.

While universities are not putting anyone in jail, merely being accused of a rape, much less being convicted by your university, has many of the same concerns as a criminal trial. As if to supply an object lesson that illustrates the Supreme Court’s well-articulated concerns, Silverglate opens his op-ed with the following harrowing story:

On Jan. 27, 2010, Mr. [Caleb] Warner learned he was accused of sexual assault by another student at the University of North Dakota. Mr. Warner insisted that the episode, which occurred the month prior, was entirely consensual. No matter to the university: He was charged with violating the student code and suspended for three years. Three months later, state police lodged criminal charges against his accuser for filing a false police report. A warrant for her arrest remains outstanding.

Among several reasons the police gave for crediting Mr. Warner’s claim of innocence was evidence of a text message sent to him by the woman indicating that she wanted to have intercourse with him. This invitation, combined with other evidence that police believe indicates her untruthfulness, has obvious implications for her charge of rape.

Nevertheless, university officials have refused to allow Mr. Warner a re-hearing—much less a reversal of their guilty verdict. When the Foundation for Individual Rights in Education (FIRE), a civil liberties group of which I am board chairman, wrote to University President Robert O. Kelley to protest, the school’s counsel, Julie Ann Evans, responded. She wrote that the university didn’t believe that the fact that Mr. Warner’s accuser was charged with lying to police, and has not answered her arrest warrant, represented “substantial new information.” In any event, she argued, the campus proceeding “was not a legal process but an educational one.”

In the wake of cases like the Duke lacrosse case, it is troubling that the OCR has decided that the rights of the accused on college campuses need fewer protections. Expect to see more travesties of justice in the months and years to come if these regulations stand. Thankfully, FIRE is on the front lines fighting for students’ constitutional rights.

That’s the title of an essay I wrote for SCOTUSblog as part of their symposium on United States v. Arizona. This is the big immigration case that will hit the Supreme Court’s doorstep later this month when Paul Clement, recently hired by Arizona, files his cert petition.

Here’s an excerpt:

…state governments, feeling tremendous pressure from their citizens to address the consequences of the federal failure to meet this nation’s immigration needs, are acting for themselves. Arizona happens to be the “tip of the spear,” but we’ve also seen various other immigration-related laws passed in states as different as Utah, Georgia, and California. Whether related to enforcement, expanded work permits, sanctuary cities, or other types of policy innovations, Congress’s abdication of its duty to manage our immigration system has spawned a host of federalism experiments.

And so we come to S.B. 1070 (as amended by H.B. 2162), which exemplifies the crucial distinction between law and policy that both liberals and conservatives tend to forget. A law that is good policy might be unconstitutional or preempted by some higher law. Here we see the converse: while S.B. 1070 is (with the exception of one provision) constitutional, it’s bad policy.

Read the whole thing.

Greg Nojeim of the Center for Democracy and Technology reports on yesterday’s hearing in the House Judiciary Committee on H.R. 1981, the Protecting Children from Internet Pornographers Act of 2011. (I lamented the bill earlier this week, as did Julian Sanchez last week.)

Rep. Sensenbrenner [(R‑Wis.)], Chair of the Crime Subcommittee, opened the hearing with an extraordinarily strong attack on the bill. Saying the Committee should relegate mandatory data retention to the dustbin of history, he attacked the data retention provision on economic and privacy grounds. “I believe this bill is bad policy and I will do my best to kill it.” He also said, “This bill runs roughshod over the privacy rights of people who use the Internet for thousands of lawful purposes … this bill should be defeated and put in the dustbin of history.” He also lashed out at the provision in the bill (Section 7) that would give the U.S. Marshals administrative subpoena authority to investigate unregistered sex offenders, reminding the Subcommittee that as Chairman of the full Committee during the debates about reauthorizing the Patriot Act in 2005 or 2006, he had examined the issues surrounding administrative subpoenas and determined that admin subpoena authority would be too much a risk to privacy to confer on the gov’t.

Kudos to Rep. Sensenbrenner for considering the privacy consequences of this bill and the risks in conferring too much power on the government. I’d be in favor of his keeping these concerns in mind with policies well beyond data retention.

Want to understand a big chunk of what Washington, D.C. does? Learn about “moral panic.”

Moral panic is a dynamic in the political and media spheres in which some threat to social order—often something taboo—causes a response that goes far beyond meeting the actual threat. It’s a socio-political stampede, if you will. You might be surprised to learn how easily stampeded your society is.

Take a look at H.R. 1981, the Protecting Children from Internet Pornographers Act of 2011. It’s got everything: porn, children, the Internet. And it’s got everything: financial services providers dragooned into law enforcement, data retention requirements heaped on Internet service providers, expanded “administrative subpoena” authority. (Administrative subpoenas are an improvisation to accommodate the massive power of the bureaucracy, and they’ve become another end-run around the Fourth Amendment. If it’s “administrative” it must be reasonable, goes the non-thinking…)

This isn’t a bill about child predation. It’s a bald-faced attack on privacy and limited government. Congress can move legislation like this, even in the era of the Tea Party movement, because child predation is a taboo subject. The inference is too strong in too many minds that opposing government in-roads on privacy is somehow supporting child exploitation. Congress and its allies use taboos to cow the populace into accepting yet more government growth and yet more surveillance.

I’m not turned to mush by taboos, so the question I’m most interested in having asked at tomorrow’s hearing on the bill in the House Judiciary Committee is: “Under what theory of the Commerce Clause is this bill within the power of the federal government?”