Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

...

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625–26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.

Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland.

Gibbons is certainly a good foundation for advocates of strong federal powers. As the Supreme Court later wrote in Wickard v. Filburn, Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Indeed, Wickard itself did not purport to go any further than Gibbons had gone. Yet too many people know Gibbons only from expurgated versions in casebooks; thus they rely on some general phrases in Gibbons, and they infer that the commerce power encompasses everything that has interstate effects. Yet reading the full text of Gibbons ends the need to build speculation upon speculation. According to Chief Justice Marshall, the commerce power does not encompass:

that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description....

(Emphasis added.) Of course one may argue that Chief Justice Marshall was wrong, and that it would be better if “health laws of every description” could be enacted by the national government. But that would not be an originalist argument, and it would certainly not an argument for which one could cite Gibbons v. Ogden.

Some advocates of the current health control law also point to McCulloch v. Maryland to bolster their favored interpretation of the Necessary & Proper clause. These interpretations are not consistent with Chief Justice Marshall’s own understanding of what McCulloch said, and what he believed that “necessary and proper” includes. When McCulloch was decided, it came under fierce criticism, and so Chief Justice Marshall penned a series of pseudonmyous newspaper essays defending the decision. (That the essays, like The Federalist, were written pseudonymously makes them no less valuable.) The essays are collected in the book John Marshall’s Defense of McCulloch v. Maryland, published by Stanford University Press in 1969, and edited by Gerald Gunther. Having studied the essays, Professor Gunther wrote in his introduction, “Clearly these essays give cause to be more guarded in invoking McCulloch to support views of congressional power now thought necessary.”

Marshall explicitly agreed with a critic of McCulloch “that the insertion of the words necessary and proper in the last part of the 8th section of the 1st article, did not enlarge powers previously given, but were inserted only through abundant caution.” (Emphasis in original.) In Marshall’s understanding, any power necessarily includes its incidents. At the time of the Founding and the Early Republic, the legal definition of “incidents” was that they are inferior powers, and cannot be equal to or greater than the enumerated power to which they pertain. Regarding incidental powers, wrote Marshall, “Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of the given power.”

In a forthcoming article in Engage (the journal of The Federalist Society’s practice groups), Rob Natelson and I penned a hypothetical opinion on a federal health control law, written entirely in Chief Justice Marshall’s voice. The opinion consists mainly of direct quotes from Marshall. (Rob, who knows the law and legal culture of the Founding Era as well as anyone in the world, is the lead author.)

It would be difficult to make a serious argument that the original meaning of the commerce clause and the necessary & proper clause is broader than Chief Justice Marshall thought them to be. Marshall’s vigorous readings of those clauses were hardly uncontested by other Founders. For example, James Madison criticized the reasoning, although not the result, in McCulloch. (As President, Madison had signed the bill creating the Second Bank of the United States, which he thought to be inconsistent with original meaning, but validated by subsequent practice.)

The current U.S. Supreme Court and the Circuit Courts of Appeal do not always follow original meaning, but to the extent that they do care about it, the PPACA in general and the mandate to purchase congressionally-designed health insurance in particular cannot be considered constitutionally valid under the commerce clause or the necessary & proper clause.

In case you hadn’t noticed, Governor-for-not-too-much-longer Bill Ritter has been making the rounds with the media in order to “reflect” on his 4 years in office. I figured since he gets to do it, why not me? So let’s take a trip down memory lane as I reflect on Governor Ritter’s 4 years in office…

First I have to say that Bill Ritter is a good person who truly loves Colorado and did what he thought was in Colorado’s best interest.  He is one of the very few politicians I would trust to babysit my kids.  I’m just not happy about the energy bills he is going to make my kids pay.

TABOR: Where do we start with this one. To put it lightly, during the Ritter administration, TABOR was re-worded. The interpretation of our constitutionally protected TABOR amendment by our Supreme Court was a simple piece of advice: don’t say “tax,” just say “fee.” And that’s exactly what the Governor did. He increased our car registration “fees” to the tune of about $250 million a year. He also poked a hole in TABOR allowing fees to slide through via the hidden hospital tax fee. He then raised our mil levy “fees,” soda “fees,” “fees” on paper products, “fees” on Internet sales, “fees’ and “fees’ and “fees.” Why all this “fee” stuff? Simple. By raising our “fees,” he side-stepped the voter approval required of all tax increases. Brilliant!

The “New Energy Economy:” The left correctly despises corporate welfare, but somehow manages to overlook it when it comes to subsidizing “green” energy. How many taxpayer dollars have been confiscated and used to prop up solar and wind companies here? Not to mention all the goodies our state government extends in order to bribe green energy companies to locate in Colorado from out of town. And how can we forget the green energy mandates? Ritter helped push through legislation that upped the renewable energy standard from 20% to 30% by the year 2020. That means a whole 30% of our state’s energy production MUST be from feel-good sources by 2020.  And “renewable”doesn’t include hydro or nuke, go figure. Of course Ritter will be long gone by the time 2020 rolls around and the cost of our energy has skyrocketed.

Oil and Gas: Along with awful solar and wind energy subsidization programs, the Ritter administration helped push through rules that made drilling for oil and gas much more difficult. That was Ritter’s energy policy in a nutshell: punish the cheap and reliable energy sources while subsidizing the inefficient and expensive forms of energy. That way, everyone except green energy special interests lose.

Transparency Hater: When State Rep. BJ Nikkel introduced transparency legislation that would shine a much needed light on government spending, Governor Ritter worked his tail off to try to bury it. He attempted to kill the legislation before it saw the light of day. When that didn’t work, he created a horribly ineffective and user-unfriendly website that the Chinese government wouldn’t even pretend was transparent.

Hollywood Ritter: Let’s not forget that the good Guv spent more than $200,000 of our money on TV, photographs and videos of himself doing things. What things? I dunno, things that governors typically do. Perhaps Carly Simon might have something to say about that…

Enemy of Petitioning Your Government: The Ritter administration was no friend to the citizen initiative process. He signed into law House Bill 1326 which makes the petition process accessible only to the wealthy. In fact, even though our Health Care Choice Amendment lost on election day, I am still being sued over it by the lawyer minions of the left. You gotta love a law that lets the loser of a ballot measure get sued personally for exercising his Constitutional right to petition his government.  Thanks Bill!

Expanding Health Care Welfare State: The Denver Post seems to believe that Ritter’s legacy won’t be his massive green energy initiatives that has resulted in the “new energy economy,” but rather, it will be his expansion of the health care welfare state. The Post writes, “Health care advocates credit the Ritter administration with doing more to expand public insurance rolls than any other governor.” While other states are trying to get out of federal Medicaid arrangements because they are fast-track to bankruptcy, our governor pushes hundreds of thousands of new people into it! Don’t believe that the Medicaid rolls are a state budget buster, take a look at the health care section of our Citizens’ Budget.

That’s about all the reminiscing I can handle for one day. It’s time to look forward to 2011 and the brand new Hickenlooper administration. Good luck John. Remember, if you need any help with balancing the budget, we’ve got the perfect resource for you.

Constitutional mistakes just keep coming out of the Denver Post.

One was the editorial board’s assessment that “ObamaCare” is somehow constitutional.

Two more mistakes have just come from Post columnist Mike Littwin. In his Oct. 23 profile of the Tea Party Littwin wrote, that “the founders’ visions were often in complete opposition.”

Actually, the Founders’ visions were remarkably consistent — their disagreements were about how best to achieve common goals. Those common goals included a limited, republican federal government held to trust-style standards and protecting personal liberty. (American dissenters from those goals were called “Tories” and fled the country or dropped out of public life after the Revolution.) You can find the details in my new book The Original Constitution: What It Really Said and Meant.

Littwin returned with another column on October 27, in which if he didn’t make an error, he certainly left an mistaken impression.

He wrote “It was only recently that O’Donnell was laughed at by a group of law students . . . for saying that the separation of church and state was not guaranteed by the First Amendment. It’s an old argument, since the words themselves aren’t in the Constitution. But it was Thomas Jefferson, one of your more important founders, who did say exactly that in an 1802 letter to the Danbury Baptists concluding that the First Amendment built ‘a wall of separation between Church & State.’”

What Littwin apparently doesn’t understand is that “separation of church and state” meant something different to Jefferson than it means in discourse today.

Today the term is used for the view that both federal and state governments must divorce themselves from all religious recognition, even at the risk of seeming anti-religion. Believers in this view are called “strict separationists.”

That was hardly Jefferson’s view, since when he was governor of Virginia he supported religious holidays and blasphemy laws.

Actually (as most recent scholarship confirms), the Establishment Clause of the First Amendment meant only that the federal government could not establish a national church or otherwise favor some religions over others. My own research on the subject appears here.
[For the future, please note that Jefferson is not a very reliable source of constitutional meaning anyway, since he was in France when the Constitution was drafted and ratified.]

Senate candidates Ken Buck and Christie O’Donnell have gotten a lot of flak for saying they don’t buy the current notion of “separation of church and state.” Critics have tried to portray this as an opinion that is somehow looney or extremist. If so, then the current Supreme Court of the United States is looney or extremist, because it doesn’t agree with strict separation, either.

Timothy Sandefur  produces important research on economic liberty. I’m pleased that the Independence Institute, where I work, recently hosted an event for him to promote his book. I’m also happy that he has become part of the team of Cato Institute writers, which I have been part of since 1988. As a contributing editor of Liberty, I have followed his writing since he was a law student. And of course I commend Eugene for inviting him to guest-blog for VC. However, one item in his blogging appears to me to be erroneous:

When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.

I.

Here is a good example: “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution.” Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol’y 1, 3 (2009). Now, whether one accepts or rejects the idea of “substantive due process,” this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution’s text.

The quote is not precisely accurate, and here, the lack of precision leads to a serious error. In the article that Sandefur cites, Nelson Lund and I were discussing and criticizing Roe v. Wade. After a quote from Roe about “the Fourteenth Amendment’s concept of personal liberty,” we then wrote: “This was presumably a reference to the doctrine of substantive due process, which the Supreme Court has never in its entire history tried to derive from the text of the Constitution.”

Our statement as actually written was accurate. Sandefur supplies no example to counter our statement that “the doctrine of substantive due process” (that is, of selective incorporation, unenumerated substantive rights such as those in Meyer v. Nebraska and Roe v. Wade, and so on) has never been the beneficiary of a Supreme Court attempt to derive it from the text of the Constitution.

Instead of showing a case where the Supreme Court did what we had said it did not do (explicate a textual basis for “the doctrine of substantive due process”), Sandefur instead supplies two quotes from Supreme Court cases that did something else.

The first quote, from Loan Ass’n v. Topeka (1874) is little more than an asserted conclusion, albeit one I happen to think is correct. The block quote from Hurtado v. California (1884) provides a litany of things that are not “due process of law”; such as bills of attainder, or special laws enacted to favor or harm a particular individual or group. The Hurtardo quote presents a common nineteenth century view of “due process of law,” with, at least arguably, hundreds of years of roots in American legal understandings. Some of the background of this thinking can be found in Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585 (2009) and James W. Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Comment. 315 (1999). Both authors trace the “due process of law” concept from Magna Carta’s “law of the land” provision, through Dr. Bonham’s Case (voiding a local monopoly on the practice of medicine) and its explication by Edward Coke, and to its understanding by the American colonists. This understanding (which might have been incorrect as a matter of English law) was adopted by the American Framers, and carried forward by antebellum state courts.

So yes, “due process of law,” in a textualist sense, can require judicial action against even laws which may have been enacted under proper procedures, such as special legislation (e.g., taking property from X to give it Y). And, quite obviously, this traditional view of “due process of law,” summarized in Hurtardo, has very little to do with “the doctrine of substantive due process.” The former, text-based view, condemns special legislation; yet you can’t use the modern Supreme Court’s “doctrine of substantive due process” to attack a congressional statute that was enacted for the obvious benefit of one corporation, whereas such a challenge might be plausible under the “due process of law” principle of Hurtardo.

In short, Nelson and I did not voice any objection to the principle of “due process of law” as briefly explicated in Hurtardo. Instead, we claimed that the Supreme Court’s doctrine of substantive due process (which is much more wide-ranging and dubious) has not been derived by the Court from the text of the Constitution. Hypothetically, it might have been possible to so derive at least some of the modern SDP decisions, but I suggest that the absence of any Supreme Court citations from Sandefur rebutting what we actually said is further support for our point.

If you’re a big Dave Kopel fan like myself, you probably find it difficult following everything the guy is doing. The man is prolific. Between writing a multitude of articles for a variety of different outlets, he’s constantly on the radio, on TV, in Washington DC testifying on something I probably wouldn’t understand, lecturing on Constitutional Law at DU, making an appearance somewhere on something I probably wouldn’t understand, or avoiding the rush of fans that descend on him when he’s in public. He does more in a day than I do in a decade.

Therefore, with a little help from Dave himself, here’s a quick list of stuff Dave’s done recently that most ordinary humans could not do:

Wrote an amicus brief in the McDonald v. Chicago Supreme Court case that was cited 3 times in the decision. Wrote a critical article for America’s 1st Freedom explaining the Supreme Court opinions in McDonald. Dave sat down with me for a podcast and a TV show about the crucial McDonald decision.

Here’s an America’s 1st Freedom article on Dave’s book Aiming for Liberty.

Dave flew to Washington DC to provide testimony on Supreme Court nominee Elena Kagan and her Second Amendment views. Here is video of Kopel’s testimony with a couple of followup Q&A from the Senators.

Catch Dave at Liberty on the Rocks Red Rocks this coming Monday the 19th at the Old Chicago in Lakewood.

After you’re done catching up with all that, Dave will have a dozen new things out to read, watch, and listen to, so stay tuned here.  We are so honored to have him here at Independence.  Thanks Dave for all you do!

On this week’s Devil’s Advocate, Independence Institute Research director David Kopel joins me to discuss the recent, and hugely significant, U.S. Supreme Court case McDonald v Chicago, and what the decision means for the Second Amendment and gun rights. Dave also discusses his recent testimony at the Elena Kagan Supreme Court nominee hearings. That’s this Friday at 8:30 PM on Colorado Public Television 12, re-broadcast the following Monday at 1:30 PM.

Check out Independence Institute Research Director Dave Kopel’s testimony at last week’s Elena Kagan Supreme Court nominee hearings.

Justice Sonia Sotomayor, by joining the Breyer dissent in McDonald which called for Heller to be over-ruled, contradicted what she had told the Senate last summer. I supply the details in an op-ed for the Washington Times.

On Thursday (or perhaps, early on Friday), I will be testifying on the Kagan nomination. My written testimony will be posted by Wednesday morning, on my website.

Justice Sotomayor’s disappointing performance highlights the importance for Senators who care about Second Amendment rights learning more about Ms. Kagan’s actual views, and not settling for vapid platitudes about “settled law.”