President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item I wrote on the health control law was back on March 22, 2010, responding to an article by Jack Balkin in the New England Journal of Medicine regarding the tax power. (Incidentally, this may make me the second VC writer–very distantly second after Randy himself–to state in writing that the health control law is unconstitutional under modern law, not just under original meaning. )

My Independence Institute colleague Rob Natelson (U. Montana law school) first wrote on the constitutionality of the health control law on Jan. 23, 2010, responding to a Los Angeles Times essay by Akhil Amar, who also writes for Balkinization. (Making Natelson the 1st full-time law professor to write something on Barnett’s side of the issue.)

I think that the VC and Balkinization have jointly helped to elevate the constitutional analysis by the courts and by the public, especially when VC and Bk have engaged and addressed each other’s arguments. Both VC and Bk kept right on going last week, with plenty of arguments for the Court made during the period between the end of oral argument on Wednesday and the Court’s conference on Friday.

In the health control law debate, VC and Balkinization have each had one outlier. At VC, our outlier was Orin Kerr, who remains unconvinced by the arguments developed by Randy et al. Orin’s public questions and challenges have helped spur the health control skeptics to refine their arguments, and to state them more precisely and clearly.

Balkinization has a different kind of outlier. Andy Koppelman has spent two years penning variations of his thesis: “Everyone who doesn’t agree with me is stupid.”

As noted below by Randy, Koppleman’s latest essay explores the implications of his certitude that “the silliness of the constitutional arguments against the mandate is apparent to any competent lawyer who assesses them in good faith.” Because every competent lawyer knows that Koppelman is right, how could anyone, including Supreme Court Justices, purport to disagree?

There could be only two possible explanations for such a frivolous opinion: (1) a naked assertion of raw power by politicized right-wing justices contemptuous of democratic processes, or (2) a sort of mass hallucination induced by the inane rantings produced by the echo chamber of the right-wing blogosphere.

Thus, says Koppelman, everyone, including lower federal courts, should “nullify” a Supreme Court decision holding the health control law unconstitutional.

I’ll leave it up to the readers to decide whether the Supreme Court saying that Congress can’t force people to buy overpriced products from the Big Insurance oligopoly merits the same sort of response that Kentucky offered to a congressional statute which (as actually enforced) outlawed criticism of the President, or which Wisconsin offered to a federal statute purporting to conscript Wisconsin citizens into enforcement of the federal Fugitive Slave Act of 1850.

But I will say this, from an organizational behavior perspective. An organization whose task involves persuasive communications can sometimes be strengthened if there is one person in the organization who can thoughtfully say “Here’s why I think the rest of you may be wrong, and here are what I see to be the weaknesses in your argument.” In contrast, an organization will not improve its persuasive effectiveness if the organization pays any attention to a fanatical member who insists, “No, the people on the other side aren’t just wrong. They MAD I tell you! MAD! They live in an echo chamber, and can’t even consider contrary ideas. Isn’t that obviously CRAZY!!?”

For my own exchanges with Professor Koppelman, see Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011), and Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), both of which were co-authored BU’s Gary Lawson. A shorter version of the Lawson/Kopel thesis on the Necessary and Proper clause is available at The Incidental Unconstitutionality of the Individual Mandate, Legal Workshop. Feb. 6, 2012.

[Epilogue: April Fool's. On me. Larry Solum of Legal Theory occasionally posts abstracts of "articles" by famous professors which  are actually Solum-written parodies that take the professor's approach and push it just one more, somewhat plausible, step into absurdity. In real life, Koppelman does accuse critics of the health control law of acting "in the spirit of a saboteur in wartime,” and he did characterize the Lawson/Kopel argument for obeying the original meaning of the Necessary and Proper clause, as expounded in McCulloch, as "insane." But he never called for nullifying a Supreme Court decision; and while he has always said that there are no non-"silly" arguments against the health control law, he has never posited mass insanity as an alternative explanation to his theory that the only way for the health control law to be ruled unconstitutional would be political bias by the judges. And congratulations to Larry Solum, who is never insane, always brilliant, and sometimes silly.]

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say.

Fla. Stat. § 776.012. Use of force in defense of person

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

So the general rule is that deadly force may be used only to “imminent death or great bodily harm,” or “the imminent commission of a forcible felony.” A person may only use deadly force if he “reasonably believes” that the aforesaid factual conditions exist. These standards are the norm throughout the United States.

Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let’s call this the “M narrative.” In Zimmerman’s account, he followed Martin,  caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the  pavement. Let’s call this the “Z narrative.”

I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant. Simply put, everyone who has claimed that Florida’s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.

The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman’s firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.

Under Florida law, there is another set of circumstances in which deadly force is permitted is:

(2) Under those circumstances permitted pursuant to  s. 776.013

The cross-references is to a statute involving self-defense in one’s home or automobile. Neither of these is relevant to the Martin-Zimmerman case.

Fla. Stat. § 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

The home/automobile law allows use of deadly force against intruders who unlawfully enter the victim’s home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.

Again, the home/automobile provisions have no relevance to Martin/Zimmerman case.

Next is the issue of retreat:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Again, this is irrelevant to the Martin/Zimmerman case. A duty to retreat, if it existed, would apply to a crime victim, who would be required to retreat than to use force in self-defense, if retreat were feasible. In the M version of the case, Zimmerman stalked and shot Martin; Martin never attacked Zimmerman. Accordingly, Zimmerman never had any lawful right of self-defense. Only Martin had violently and feloniously attacked Zimmerman would there be an issue (in any jurisdiction) as to whether Zimmerman had a duty to retreat. In the Z version of the case, there was such an attack, but it was impossible for Zimmerman to retreat. Thus, duty to retreat law has no bearing on the case.

Historically, American states have been split as to whether there is ever a duty to retreat, and under what circumstances. Richard Maxwell Brown’s excellent book No Duty to Retreat: Violence and Values in American History and Society (1994) details the strong trend in American courts in the late 19th and early 20th centuries against a duty of retreat. The U.S. Supreme Court said the same thing in Beard v. United States, 158 U.S. 550 (1895):

[Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

Beard involved a victim on his own land. The Court unanimously re-affirmed Beard‘s no-retreat rule in Alberty v. U.S., 162 U.S. 499 (1896), which involved a person in his own home. Allen v. United States, 164 U.S. 493, 502 (1896), involved a victim who was on someone else’s property; there, the Court upheld a jury instruction in favor of a duty to retreat.

Finally, in Brown v. United States, 256 U.S. 335 (1921), Justice Holmes writing for a unanimous Court that included Louis Brandeis (the greatest Progressive jurist), explained:

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. [cite to Beard.] Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.

It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. [Defendant Brown was an employee at a federal navy yard, where Hermis attacked him with a  knife.]

The above cases all involved federal common law, applied to the federal Territories and to federal property. States, of course, are free to chart their own course. Judges can revise the common law, and legislatures can enact statutes which differ from the common law. Under the English common law of Blackstone, there was no duty to retreat in the home, and no duty to retreat when the use of force was necessary to commit a forcible felony, such as arson. Retreat was required, if practicable, in cases “of a sudden brawl or quarrel” outside the home. See also Hawkins, Pleas of the Crown, sects. 106-07; Bishop’s Criminal Law, sect. 850 (most influential American criminal law treatise of latter 19th century; person who is victim of murderous attack has no duty to retreat).

In sum, Florida’s non-retreat rule is not some 21st century novelty. It is consistent with a long tradition of American law, in which different states have had a variety of rules about when, if ever, retreat might be required.

Even among the most restrictive states, such as New York, retreat in safety is not required before using deadly force in the home; to prevent a burglary (if the person reasonably believes that the criminal would use force to thwart the person’s termination of the burglary) ; to prevent a robbery ; or to prevent a kidnapping, forcible rape, or other forcible criminal sexual attack.  Thus, whether you are in Lake Placid, New York, or Lake Placid, Florida, and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.

Back to the Florida statute, which then provides some additional legal standards for home/automobile defense:

 (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The next part of the Florida Code concerns “Use of force in defense of others.” Fla. Stat. § 776.031:

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Deadly force is permitted only when “reasonably” believed “necessary to prevent the imminent commission of a forcible felony.” The no-retreat rule is the same as for self-defense.

We have now covered the entire relevant sections of Florida’s self-defense statutes. Not one word of them provides the slightest legal protection to Zimmerman, if the M version of the events is true. The grand jury will decide whether there is plausible evidence in support of the M theory.

Florida law provides some protections for persons who have lawfully used force against a criminal attack.

Fla. Stat. § 776.032. Immunity from criminal prosecution and civil action for justifiable use of force

(1) A person who uses force as permitted in  s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

So if a person used force lawfully in self-defense against a criminal attacker, then his actions are justified (not merely excused), and he may not be arrested, criminally prosecuted or sued. It seems obvious that persons who have obeyed the law should not be arrested or prosecuted. Nor should criminals or a criminal’s relatives be able to harass the victim by filing a civil suit.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

The Sanford police said this is why they did not arrest Zimmerman: they did not have probable cause to believe that he had broken the law. In fact, the statute does not change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that “The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized.” As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The normal rule in American law is that a police officer must have “probable cause” in order to arrest someone.

Another protection:

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

So if a lawful defender is sued, then the court will attorney’s fees and costs to the victim of the improper suit, who was, of course, also the crime victim.

Finally, Florida law guaranteeing self-defense rights express excludes anyone who “Initially provokes the use of force against himself or herself.” Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights  if:

(2)(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.

In sum: there is not a shred of support for the claim that Florida law protects, or has protected Zimmerman, if he unlawfully attacked Martin. If Zimmerman’s story is true (Martin attacked him, putting him in imminent peril of grave bodily injury, with no opportunity to retreat), then Zimmerman’s self-defense claim would be valid under the laws of Florida, New York, or any other Anglo-American jurisdiction. The particular legal changes resulting from Florida’s “Stand Your Ground” and “Castle Doctrine” laws (deadly force in the home/automobile; no duty to retreat in public places; Fourth Amendment arrest standard affirmation; protection from civil suits) simply have nothing to do with whether Zimmerman’s actions were or were not lawful.

On Friday, March 9, Fordham Law School is holding an all-day symposium on the Second Amendment. The event is free, and open to the public. Or if you would prefer to pay, you can get CLE credits. Among the speakers are Gary Kleck, Nelson Lund, Robert Cottrol, Nicholas Johnson, Adam Winkler, and me.

After the event ends at 5 p.m., we are going to have an informal event to celebrate the publication of the new law school textbook Firearms Law & the Second Amendment; Regulation, Rights, and Policy. (By Nicholas J. Johnson , David B. Kopel , George A. Mocsary , Michael P. O’Shea.) Three of the four co-authors (Johnson, Kopel, and Mocsary) will be there. Our tentative plan is to hang around Fordham for a little while, and then proceed to P.J. Clark’s at 44 W. 63rd Street in Manhattan. VC readers are welcome to join us.

Or if you would just like to buy the book, you can order it from Amazon, or from the Aspen Publishers link, above.

Colorado’s 2003 Concealed Carry Act provides that licenses issued pursuant to the CCA shall be valid “in all areas of the state, except as specifically limited”  by other portions of the CCA (such as the rule that CCA licensees can have a gun in the car when they are on K-12 school property, but may not carry the gun outside the car). Nevertheless, the University of Colorado refused to allow licensed carry on the university’s campuses, and maintained its policy of automatic expulsion or firing for any student or faculty member who violated the policy. CU likewise insisted on its right to forbid automobile carry by licensees whose east-west travel in Boulder took them through Colorado Avenue, a street which passes through the CU campus, but which is used by many persons who never stop at CU.

In a case brought by Mountain States Legal Foundation attorney Jim Manley, the district court dismissed the plaintiffs’ claims. The Court of Appeals reversed, and the Colorado Supreme Court granted certiorari.

Today, the Colorado Supreme Court, in a unanimous decision written by Justice Allison Eid, affirmed the Court of Appeals. The Court held that the CCA entirely preempts the University of Colorado’s power to prohibit licensed carry. The Court rejected CU’s theory that because the University is created by the State Constitution, the Concealed Carry Act could only apply to the University if the statute expressly mentioned CU.

Because the case could be fully decided on statutory grounds, the Court declined to address constitutional issues involving the right of self-defense (Colo. Const., art. II, sect. 3) and the right to arms (art. II, sect. 13).

The case was remanded to the district court for further proceedings.

Since the 2003 CCA, non-interference with licensed carry has been the practices at the campuses of Colorado State University (whose main campus is in Fort Collins). Since the April 2010 decision of the Court of Appeals, all other public colleges and universities in Colorado (except for CU) have acquiesced to licensed carry. Today’s decision removes the last hold-out, the last of the Colorado public institutions of higher education which was attempting to maintain a policy of segregation against people who exercised their civil rights.

I first met Jim Manley when he was President of the CU Federalist Society, and he invited me to campus to speak on the day of the SCCC “empty holster” protest against CU’s civil rights ban. As a MSLF, he has played a leading role in many important cases, but it is an especially impressive accomplishment for a young attorney from a small public interest law firm to win a unanimous state Supreme Court victory against an institution whose largest campus (Boulder) has an annual budget of over a billion dollars.

My amicus brief on behalf of the County Sheriffs of Colorado is here. The Supreme Court decision is here. [Link fixed.]

Earlier today, Maryland federal district Benson Everett Legg decided the case of Woollard v. Sheridan. Plaintiffs on the case  are Robert Woollard and the Second Amendment Foundation. The lead attorney for plaintiffs is Alan Gura, the winning attorney in D.C. v. Heller and McDonald v. Chicago.

As explained in the district court’s Dec. 2010 ruling, rejecting a motion to dismiss:

Plaintiff Woollard initially obtained a handgun carry permit after he was assaulted by an intruder in his home in 2002. The permit was renewed in 2005. At that time, the intruder had recently been released from prison, providing a “good and substantial reason” for Woollard to carry a firearm. In 2009, Woollard again sought to renew his permit so that he could carry a handgun for self defense. MSP Secretary Sheridan denied Woollard’s application, however, because Woollard failed to provide sufficient evidence “to support apprehended fear.”

At issue in the case is the Maryland statute which says that the Secretary of the State Police can issue a carry permit if  the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Md.Code Ann., Pub. Safety § 5-306(a)(5)(ii).

In today’s decision on the merits, the “good and substantial reason” requirement was ruled to violate the Second Amendment. The court held that the Second Amendment right is not limited to self-defense in the home. It also includes the militia and hunting. None of the Second Amendment rights can logically be confined solely to the home: “In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ‘self-defense has to take place wherever [a] person happens to be’.”

The internal quotation, by the way, is from Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). Based on judicial citations, the Volokh article appears to be by far the most influential post-Heller  article on the Second Amendment.

The Maryland carry license law was not “narrowly tailored,” says the Woollard opinion. Moreover, “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights.” Rather, “The right’s existence is all the reason he needs.”

The case is headed to the Fourth Circuit, which has a mixed record on Second Amendment issues. From there, Woollard could be the case in which the Supreme Court chooses to tell recalcitrant lower federal courts that Heller and McDonald really do mean what they say: that the Second Amendment includes the right to carry, albeit not in “sensitive places,” and the government may, if it wishes, require that carry be open rather than concealed.

The SAF press release is here, and a terse AP story is here. Congratulations to Alan Gura and to SAF President Alan Gottlieb!

A few weeks ago, the New York Times reported that the NY Police Department was working with the Department of Defense on a remote firearms detector. According to the article, the detectors are  presently effective at a 3 to 5 meter range at finding guns that are being carried concealed. The objective is to improve the detectors so that they work from a distance of 25 meters.

Commentators, what do you think of this? Does is raise Fourth Amendment concerns? Second Amendment issues? Any other constitutional or policy questions?

That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why.

For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).