Legal matters of maritime concern in Hawaii, Oceania, and beyond.
The New York Appellate Division recently issued a decision interpreting the Longshore and Harbor Workers’ Compensation Act (LWHCA), particularly 33 U.S.C. s. 905(b) and the preemptive effect of that act on state law claims. The decision is here and the case is entitled Lee v. Astoria Generating Company, L.P.
The facts are pretty straightforward. The defendant …
Another Amicus brief has been filed supporting the Petitioner in the McDonald v. City of Chicago case, resource page here. The Cato Institute and Pacific Legal Foundation filed a brief here.
Their conclusion sums up their position well:
The Slaughter-House Cases was wrong when it was decided. It ignored the fundamental change in constitutional order
…
Please excuse my divergence from this blog's typical fare, but this is an important Constitutional case which turns on the interpretation of the Fourteenth Amendment. Most will consider this a gun rights case, and it is, but the legal theory behind why it is a gun rights case is more far reaching than that.
I have begun gathering materials related to the McDonald v. Chicago case pending before the U.S. Supreme Court. Briefs, lower court decisions and a sampling from the blogosphere is included. My resource page is here.
The Question Presented is:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.
Stay tuned.
Decision
U.S. Supreme Court decision
Oral Argument Trancript
Presentations
American Bar Association’s Section on State and Local Government Law – CLE Teleconference, Feb. 25, 2010 at 1:30 p.m. Eastern. Announcement and signup are available on the ABA website, here.
Case Background
The U.S. Supreme Court has agreed to hear a case that has the potential to re-write over 100 years of 14th Amendment jurisprudence. The case is McDonald v. City of Chicago, No. 08-1521 (cert granted Sept. 30, 2009).
The Fourteenth Amendment states:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Question Presented
The Question Presented is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
Decision Below:
The Court of Appeals for the Seventh Circuit decision is here.
Merits Briefs (Courtesy of the ABA)
Petitioner’s Opening Brief
Respondent National Rifle Association’s Brief in Support of Petitioner
Respondent City of Chicago’s Answering Brief
Respondent NRA’s Reply Brief
Petitioner’s Reply Brief (courtesy of www.chicagoguncase.com)
Amicus Briefs (Courtesy of the ABA)
Amicus Cato Institute and Pacific Legal Foundation’s Brief in Support of Petitioner
Amicus Madison Society, et al.’s Brief in Support of Petitioner
Amicus< P> Paragon Foundation’s Brief in Support of Petitioner
Amicus Rutherford Institute’s Brief in Support of Petitioner
Amicus Heartland Institute’s Brief in Support of Petitioner
Amicus Buckeye Firearms Foundation Inc.’s Brief in Support of Petitioner
Amicus State Legislators’ Brief in Support of Petitioner
Amicus Professors of Philosophy, Criminology, Law and Other Fields’ Brief in Support of Petitioner
Amicus Senator Kay Bailey Hutchison, et al. Brief in support of Petitioner
Amicus Foundation for Moral Law’s Brief in Support of Petitioner
Amicus National Shooting Sports Foundation, Inc.’s Brief in Support of Petitioner
Amicus Jews for Preservation of Firearms Ownership’s Brief in Support of Petitioner
Amicus Arms Keepers’ Brief in Support of Petitioner
Amicus Academics for the Second Amendment’s Brief in Support of Petitioner
Amicus Center for Constitutional Jurisprudence’s Brief in Support of Petitioner
Amicus American Center for Law and Justice’s Brief in Support of Petitioner
Amicus Maryland Arms Collectors’ Assn., Inc.’s Brief in Support of Petitioner
Amicus Calguns Foundation, Inc.’s Brief in Support of Petitioner
Amicus Thirty-Four California District Attorneys, et al.’s Brief in Support of Petitioner
Amicus American Legislative Exchange Council’s Brief in Support of Petitioner
Amicus Goldwater Institute Scharf-Norton Center for Constitutional Government, et al.’s Brief in Support of Petitioner
Amicus NAACPLegal Defense and Educational Fund, Inc.’s Brief in Support of Neither Party
Amicus Insitute for Justice’s Brief in Support of Petitioner
Amicus Safari Club Int’l’s Brief in Support of Petitioner
Amicus Gun Owners of America, Inc., et al.’s Brief in Support of Petitioner
Amicus Eagle Forum Education and Legal Defense’s Brief in Support of Petitioner
Amicus International Law Enforcement Educators and Trainers Assn, et al.’s Brief in Support of Petitioner
Amicus Women State Legislators and Academics’ Brief in Support of Petitioner
Amicus States of Texas, et al.’s Brief in Support of Petitioner
Amicus Rocky Mountain Gun Owners, et al.’s Brief in Support of Petitioner
Amicus Constitutional Law Professors’ Brief in Support of Petitioner
Amicus State Firearm Associations’ Brief in Support of Petitioner
Amicus American Civil Rights Union, et al.’s Brief in Support of Petitioner
Amicus Brady Center to Prevent Gun Violence, et al.’s Brief in Support of Neither Party
Amicus Educational Fund to Stop Gun Violence’s Brief in Support of Respondent
Amicus Anti-Defamation League’s Brief in Support of Respondent
Amicus Representatives Carolyn McCarthy, Mike Quigley, and 53 Other Congress Members of the United States Congress Brief in Support of Respondent
Amicus English/ Early American Historians Brief in Support of Respondents (reprint)
Amicus Professors of Criminal Justice Brief in Support of Respondents
Amicus American Cities, Cook County, Illinois, and Police Chiefs Brief in Support of Respondents
Amicus United States Conference of Mayors Brief in Support of Respondents
Amicus Organizations Committed to Protecting the Public’s Health, Safety, and Well-Being’s Brief in Support of Respondent
Amicus States of Illinois, Maryland, and New Jersey Brief in Support of Respondent
Amicus Historians and Legal Scholars Brief in Support of Respondent
Amicus Thirty-Four Professional Historians and Legal Historians Brief in Support of Respondents
Amicus Historians on Early American Legal Constitutional and Pennsylvania History Brief in Support of Respondent
Amicus (if motion granted) Law Professor and Students Brief in Support of Respondent
Amicus Association of Prosecuting Attorneys and District Attorneys Brief in Support of Respondent
Amicus Villages of Winnetka and Skokie, Illinois, the City of Evanston, Illinois, the Illinois Municipal League, and the International Municipal Lawyers Association Brief in Support of Respondent
Amicus Board of Education of The City of Chicago, the Institute of Medicine of Chicago, Wayman African Methodist Episcopal Church of Chicago, the Illinois Council Against Handgun Violence, Legal Community Against Violence, Violence Policy Center, States United to Prevent Gun Violence, Freedom States Alliance, Connecticut Against Gun Violence, Maine Citizens Against Gun Violence, Citizens for a Safer Minnesota, Ohio Coalition Against Gun Violence, Wisconsin Anti-Violence Effort Educational Fund, and Gunfreekids.Org Brief in Support of Respondent
Amicus Oak Park Citizens Committee for Handgun Control Brief in Support of Respondent
Cert Petition Stage
Pleadings (courtesy of SCOTUSBLOG)
Precedent
Scholarly Publications
Ilya Shapiro, Opening Pandora’s Box? Privileges or Immunities, the Constitution in 2020, and Properly Incorporating the Second Amendment
Cardozo Law Review Symposium, 2010.
Kenneth A. Klukowski, Incorporating Gun Rights: A Second Round in the Chamber for the Second Amendment, Engage: The Journal of the Federalist Society’s Practice Groups, Nov. 16, 2009.
Clark Neily & Robert J. McNamara, Getting Beyond Guns: Context for the Coming Debate over Privileges or Immunities, Engage: The Journal of the Federalist Society’s Practice Groups, Nov. 16, 2009.
Ilya Shapiro, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment (publication pending).
Blogosphere and Mainstream Media
Evergreen Freedom Foundation, Post: Opinion: Second Amendment applies to states, but minors don’t have constitutional right to possess guns, February 18, 2010.
Sacramento Press, City Council Votes to Challenge 2nd Amendment, December 15, 2009.
CATO Liberty Blog, Post: Keeping Pandora’s Box Sealed, December 14, 2009.
Ken Klukowski and Ken Blackwell, Op-Ed, Wash. Times, A Gun Case or Pandora’s Box, Dec. 11, 2009
Orin Kerr, Volokh, Post: Does the Cert Grant in McDonald Suggest the Court will Rethink Slaughterhouse?, Dec. 7, 2009.
Reason.com, Post: Killing Slaughterhouse, Dec. 2, 2009
PLF Liberty Blog, Post: Privileges, Immunities and Substantive Due Process, Dec. 1, 2009
Josh Blackman, Podcast: Interview with Tim Sandefur, Nov. 23, 2009
Volokh, Post: Cato Brief in McDonald v. Chicago, Nov. 23, 2009
PLF Liberty Blog, Post: Blog Reactions to PLF/Cato’s McDonald Brief, Nov. 23, 2009
Wall Street Journal, Post: Will Gun Control Case Prompt a Constitutional Reawakening? Nov. 19, 2009
PLF Liberty Blog, Post: McDonald v. Chicago: Revolution or Restoration Part 3, Nov. 19, 2009
Volokh, Post: How I’d Approach the Privileges or Immunities Issue in McDonald, Nov. 18, 2009
Volokh, Post: Predicting McDonald, Nov. 18, 2009
PLF Liberty Blog, Post: McDonald v. Chicago: Revolution or Restoration Part 2, Nov. 18, 2009
PLF Liberty Blog, Post: McDonald v. Chicago: Revolution or Restoration Part 1, Nov. 17, 2009
Volokh, Post: NRA Brief in McDonald v. Chicago, Nov. 17, 2009
Volokh, Post: McDonald v. Chicago and Gilbert & Sullivan: the Hidden Connection!, Nov. 17, 2009
Volokh, Post: How Many Votes to Overrule the Slaughterhouse Cases, Nov. 17, 2009
Planet Kauai, Post: Reviving Privileges or Immunities, Maybe, Nov. 17, 2009
SCOTUSBLOG has published its analysis of the issues in the Florida beach renourishment/judicial takings case. Its post is here. My partner, Robert Thomas, has a resource page here. The oral arguments will be on December 2, 2009.
Per SCOTUSBLOG:
Should the court find that a judicial taking occurred, several issues will need to be addressed. First, there’s the standard of review. Second, there’s the issue of remedy: a taking is only unconstitutional if there is no compensation, but courts have no funds for compensation. Finally, there’s the issue of which courts can actually review judicial takings claim. The Rooker-Feldman doctrine suggests that lower federal courts cannot. Thus, the justices may create a claim in this case that only they can adjudicate.
Please excuse the off-topic blog post, but I am a lawyer and this case needs to be discussed.
The Supreme Court is hearing the case of McDonald v. City of Chicago which most commentators will consider a gun rights case. Specifically, whether individuals have a Constitutional right to bear arms that cannot be infringed upon by the states. The petitioner’s opening brief is here. The Seventh Circuit’s decision is here.
This case stands for much more than gun rights, but, as the brief points out, is truly about the meaning of the 14th Amendment of the Constitution and the import of the Privileges or Immunities clause. The clause provides:
No State shall make or enforce any law which shall abridge the privileges or immunities of Citizens of the United States ….
The question is to what extent do the Bill of Rights apply to the states? Or conversely, to what extent is state regulatory power checked by the Bill of Rights?
After the Civil War and the 13th, 14th and 15th Amendments, the Supreme Court decided that the Privileges or Immunities Clause did not limit state conduct that infringed on rights set forth in the Bill of Rights. These cases started with the Slaughterhouse Cases.
As such, the due process clause of the 14th Amendment became the mechanism by which the Bill of Rights was made applicable to the states. This continues to this day with the Privileges or Immunities clause being quaint text and the stuff of constitutional scholars.
Until now. The petitioner in McDonald seeks to overturn Slaughterhouse and recognize that the federal Bill of Rights is applicable to the several States by operation of the Privileges or Immunities clause.
One to watch.
The Court of Appeals for the Fifth Circuit just issued a decision relating to longshoreman negligence claims made against third parties and the insurance coverage of those claims. The decision is unpublished but is available for download here.
In Bayou Steel Corp. v. Evanston Insurance Co., a stevedore was injured while unloading a barge in Illinois. He brought suit against the facility owner. The facility owner was denied coverage by some of its insurers and brought suit against them to compel coverage for the settlement of the underlying case.
The insurance policy at issue had an exclusion which stated:
This insurance does not apply to “Bodily Injury”, “Property Damage”, “Personal Injury”, or “Advertising Injury”, imposed upon you or assumed by you under contract with respect to claims made or suits brought against you or any indemnitee pursuant to the “United States Longshoremen & Harbor Workers Compensation Act” (Title 33 USCA, Sections 901 – 950) including any amendments or revisions thereto.
The issue on appeal was whether a stevedore’s claim, which admittedly was a claim recognized by the Longshoreman’ and Harbor Workers Compensation Act (LHWCA) was “pursuant to” the LHWCA and thus fell under this exclusion. The court found that it was not because the statute explicitly did not extinguish a longshoreman’s negligence claims against third parties as it did for claims against employers.
The court noted that primary purpose behind the LHCWA was to create a compensation scheme for longshore and harbor workers who would not be covered under their state’s worker’s compensation statutes. The statute did not remove a plaintiff’s rights against third parties and while his injuries may be covered by the LHWCA, his claims against the third party were not “pursuant to” the LWHCA.
The Danger Zone. (And, no not Planet Patrol’s Danger Zone or the more familiar Kenny Loggin’s Danger Zone). For the past several years, the Army Corps of Engineers has attempted to change the boundaries of the danger zone in the ocean waters off the U.S. Marine Corps base at Kaneohe. The final rule is…
The Supreme Court has agreed to hear the Kawasaki case regarding "through" bills of lading and the interplay between the federal statutes governing cargo shipped by rail vs. cargo shipped by sea. My earlier post explaining the lower court decision is here. The Supreme Court order granting certiorari is here.
This case in…
