Short Circuit

Second Amendment scholar David Kopel sits down with us to set the stage for a big issue we’ll hear a lot about over the next year: What “keep and bear arms” means outside of the home. Whether it’s conceal carry or open carry, does the Constitution protect that right, and if so, how? There’s a case at the Supreme Court from the Second Circuit challenging New York’s conceal carry law, and another case waiting in the wings from the Ninth Circuit. We get into some history, some legal tactics, and some judicial speculation—although only of a healthy kind. Click here for the transcript.

Legal raconteur and writer David Lat joins us for some underneath-their-robes hijinks. David talks a bit about his new venture and his battle with COVID-19. Then he examines a disability case from the Eleventh Circuit which tries to figure out the relationship between a “public accommodation” under the Americans with Disabilities Act and a website. After that, Bob McNamara tells us a tragic story from the Ninth Circuit involving some “Snaps” and how they relate to Section 230. Transcript: https://ij.org/wp-content/uploads/2021/05/short-circuit-173_otter.ai-FINAL.pdf Gil v. Winn-Dixie Stores, Inc., https://www.courthousenews.com/wp-content/uploads/2021/04/winn-dixie-ca11.pdf Lemmon v. Snap, Inc., https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/04/20-55295.pdf David’s “Original Jurisdiction,” https://davidlat.substack.com/ Bob McNamara, https://ij.org/staff/robert-mcnamara/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: ht

What does Sir Walter Raleigh have to do with a Tennessee murder trial? You’ll learn from Rob Johnson, as he confronts his witness with a devastating cross-examination while presenting a unique habeas case from the Sixth Circuit. And does 50 years seem a long time for a case to last? Even in Cook County, Illinois it’s a bit of a stretch. But, as Jeff Rowes explains, given the county’s, and its most famous city’s, Untouchable history of corruption, the case can go on. For now. Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-172_otter.ai-FINAL.pdf Miller v. Genovese, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0086p-06.pdf Shakman v. Clerk of Cook County, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D04-16/C:20-1828:J:Scudder:aut:T:fnOp:N:2691064:S:0 Hemphill v. New York, https://www.scotusblog.com/case-files/cases/hemphill-v-new-york/ Rob Johnson, https://ij.org/staff/rjohnson/ Jeff Rowes, https://ij.org/staff/jrowes/ Anthony Sanders, https://ij.org/staff/a

On a special Short Circuit, professors Christopher Green and Evan Bernick join your host Anthony Sanders to examine one of the great questions of the Fourteenth Amendment: When courts apply the Bill of Rights to the States, should they give those provisions the meaning they had when they were adopted, in 1791, or how they were understood when the Fourteenth Amendment was adopted, in 1868? The question is important, argue our guests, both methodologically and practically. Among other things, using the meaning the Bill of Rights had in 1868 might better fulfill the promise of Reconstruction, which was largely lost when the Supreme Court buried much of the Fourteenth Amendment in the years following the Civil War. And speaking of Reconstruction, click here to see our 150th anniversary celebration of Section 1983, that we held earlier this week! https://www.youtube.com/watch?v=MlrAK4OXvPQ Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-171_otterFINAL.docx Torres v. Madrid, https://www.suprem

What can a court say in 325 pages? So much that we don’t have much of a clue. Diana Simpson slices and dices the Fifth Circuit’s analysis of a challenge to the Indian Child Welfare Act as it gets set for a highly likely trip up to the Supreme Court. And did you know you can sue the Federal Election Commission if they don’t investigate someone you don’t like? Well, you could, until the D.C. Circuit found some magic words. Adam Shelton pulls a rabbit out of a hat in explaining this prosecutorial discretion case. Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-170_otter.ai-FINAL.docx Brackeen v. Haaland, https://www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV2.pdf CREW v. FEC, https://www.cadc.uscourts.gov/internet/opinions.nsf/2E3A562AA93DFCDA852586B2004F2355/$file/19-5161-1893809.pdf Diana Simpson, https://ij.org/staff/diana-simpson/ Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/i

If you’re not a major party candidate it can be really hard to get on the ballot. So hard it’s sometimes unconstitutional. Paul Sherman explains how a Michigan candidate fought the elections bureaucracy in the Sixth Circuit and won (well, at least got on the ballot). Plus, can the City of New York sue to stop global warning? Actually, no. Andrew Ward walks us through a case from the Second Circuit on federal common law, this thing lawyers call Erie, and international relations. Register here for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-169-FINAL.pdf Graveline v. Johnson, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0072p-06.pdf City of New York v. Chevron Corp., https://www.ca2.uscourts.gov/decisions/isysquery/63c19c68-c35d-4c5f-9962-aee09bd4e76f/1/doc/18-2188_opn.pdf Ballot Access News, https://ballot-access.org/ Paul Sherman, https://ij.org/staff/psherman/ Andrew Ward, https

Can the police stop and frisk your person based on their “training and experience?” Not if that training and experience is simply that drug dealers like to shake hands, says the Fourth Circuit. Ari Bargil provides the details of a drug dealer that the police were a tad too impatient to lock-up. And can an assistant football coach for a public high school publicly pray at the 50 yard line right after a game? The answer is it depends. Not every penitent man will pass the Ninth Circuit’s analysis. Plus, there’s a circuit split update on bump stocks and the CDC. Register here for the April 20th online event on the 150th anniversary of Section 1983: https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-168-FINAL.pdf United States v. Drakeford, https://www.ca4.uscourts.gov/opinions/194912.P.pdf Kennedy v. Bremerton School Dist., https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf Gun Owners of America v. Garland, https://www.opn.ca6.uscourts

We get a little high-tech this week. Techdirt founder Mike Masnick joins us to explain how Section 230 actually works, and how it was somewhat unusually applied in a recent Second Circuit case. (Mike’s explanation may differ from what a multitude of “experts” have recently been saying in Congress and elsewhere.) And have you seen any drones above your house? IJ attorney Josh Windham tells a story about a drone that flew above someone’s property, and thereby committed a “search” under the Fourth Amendment (well, the government in charge of the drone did). This very interesting case from the Michigan Court of Appeals allows us to talk about drones, reasonable expectations of privacy, and whether the air above your house is an “open field.” Click here for Transcript

The 10th Circuit just can’t make up its mind. You might say it doesn’t know a hawk from a handsaw. Listen to a tale from IJ attorney Jeff Redfern of judicial deference to the government, waiver (or not) by the government, and “vacation” of en banc review. Plus, the case is about machine guns (or not). Then IJ attorney Diana Simpson explains how the 5th Circuit packed an entire federal courts textbook into one little case about a ranch in Louisiana. The plaintiff scored a hit, but not a very palpable one. Register for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-166.pdf Aposhian v. Wilkinson, https://www.ca10.uscourts.gov/opinions/19/19-4036.pdf Grace Ranch, LLC v. BP America Production Company, http://www.ca5.uscourts.gov/opinions/pub/20/20-30224-CV1.pdf Hamlet, Act. III, Sec. 1, ln. 51, https://www.gutenberg.org/files/27761/27761-h/27761-h.htm#tagIII_8 Josh Blackman, In Bump Stock Ca

How much power does the CDC have during the pandemic? Surprisingly, that was not the issue before a district court considering the constitutionality of the CDC’s eviction moratorium. Instead, it was how much power does the federal government have, virus or not. As Michael Bindas explains, that might have tipped the scales when the court interpreted the scope of the Commerce Clause. Out West, Alexa Gervasi walks us through the latest challenge to mandatory bar association dues. The Ninth Circuit says a Supreme Court precedent is on pretty shaky grounds these days, but as it’s the Supremes’ job to sort its own cases out, the lower court’s hands are tied. That’s true for the free speech claim, but on freedom of association there’s more wriggle room. Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-165.pdf Terkel v. Centers for Disease Control and Prevention, https://files.texaspolicy.com/uploads/2021/02/25160210/045-Opinion-and-Order.pdf?utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz-_yj

New York police disciplinary records were a black box, until the state changed the law. Then the union sued to keep the lid on—but lost. We speak to Tiffany Wright of the Howard University Civil Rights Clinic, who argued the case at the Second Circuit on behalf of the reforms. Also, did you know the government can search your smartphone with absolutely no suspicion when you cross the border? That’s what the First Circuit says, at least. Adam Shelton breaks down this alarming ruling, which we’ll all want to keep in mind when leaving the country becomes a thing again. Transcript: https://ij.org/wp-content/uploads/2021/03/short-circuit-164.pdf Uniformed Fire Officers Association v. De Blasio, https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/doc/20-2789_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/hilite/ Alasaad v. Mayorkas, http://media.ca1.uscourts.gov/pdf.opinions/20-1077P-01A.pdf Tiffany Wright, https://www.orrick.co

For once living up to the 1980s-movie-sense of our name, we’re talking about robots. How should the law treat robots? What do we analogize to, the law of traditional machines? Animals? Something else? How should that law be “made,” by courts or by legislatures? And how does the Constitution interact with artificial intelligence? When a robot writes a novel is it “speech?” In a special Short Circuit, we look into all of these questions with our guest Ed Walters, founder and CEO of Fastcase, and an adjunct professor who teaches robot and artificial intelligence law at Georgetown Law School. Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-163_otter.ai_.pdf Copyrighting all the melodies to avoid accidental-infringement, https://www.ted.com/talks/damien_riehl_copyrighting_all_the_melodies_to_avoid_accidental_infringement I, Robot, http://ekladata.com/-Byix64G_NtE0xI4A6PA1--o1Hc/Asimov-Isaac-I-Robot.pdf Ed Walters: https://www.law.georgetown.edu/faculty/edward-j-walters/ Anthony Sanders: https:

If you’re the State, what do you get when you put money owed to a prisoner in a special account, and then take most of that money out for yourself? You lose in federal court. Bob McNamara walks us through a particularly outrageous civil rights lawsuit from Connecticut. Plus, Anya Bidwell describes what happens when a judge is so involved in a case that he shows up at a deposition and also tells the plaintiff he will “crush” her. Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-162_otter.ai_.pdf Williams v. Marinelli, https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/doc/18-1263_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/hilite/ Miller v. Sam Houston State University, https://www.ca5.uscourts.gov/opinions/pub/19/19-20752-CV0.pdf Anya Bidwell, https://ij.org/staff/anya-bidwell/ Bob McNamara, https://ij.org/staff/robert-mcnamara/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcast

A triad of important things in life are tweets, stateless vessels, and fonts. IJ attorneys Tatiana Pino and Patrick Jaicomo join your host Anthony Sanders to outline how a politician in the Eighth Circuit almost turned her Twitter account into a public forum, which would have prevented her from blocking anyone based on a viewpoint she disagrees with. Also, ever wanted to sail your own boat onto the high seas, free from any nation’s sovereign arm? Too bad. At least says the First Circuit to an unlucky mariner who happened to be transporting quite a lot of cocaine. Finally, Anthony takes us on a tour of the fonts of the federal circuits. Will others follow the Fifth Circuit’s lead and not pretend they issue opinions with typewriters anymore? Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-161.pdf Campbell v. Reisch, https://ecf.ca8.uscourts.gov/opndir/21/01/192994P.pdf United States v. Aybar-Ulloa, http://media.ca1.uscourts.gov/pdf.opinions/15-2377P2-01A.pdf Patrick Jaicomo, https://ij.org/s

Even though ex-President Trump is off of Twitter, his tweets are still abundant in federal legal filings. IJ Senior Attorney Jeff Rowes explains the First Amendment defenses (spoiler: he thinks there aren’t many) Rudy Giuliani might have to the new lawsuit filed against him by a Canadian voting machine company. But if that’s not international enough for you, IJ attorney Kirby Thomas West shares the saga of a family that thought they were free from diplomatic immunity, but instead failed to obtain citizenship for a women who went on to fight for ISIS, and lost her passport in the process—a decision affirmed by Presidential Tweet. In the process your host Anthony Sanders explains how he never really thought about the “Reception Clause” before (which, unfortunately, has nothing to do with football). Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-160.pdf Complaint in US Dominion, Inc. v. Giuliani, https://assets.documentcloud.org/documents/20463220/dominion-v-giuliani-complaint.pdf Muthana v.

When a judge asks you a question, it’s best to give an answer. We briefly discuss an oral argument that IJ Senior Attorney Rob Frommer had last week on South Carolina’s civil forfeiture laws, and listen to some non-answers his opposing counsel gave. Then it’s on to the Fifth Circuit where the court wrestles with a COVID-19 order shutting down Louisiana’s bars, and the Seventh Circuit where both the plaintiff and defendant have some unconventional positions on standing. If you’re playing Short Circuit bingo this episode has got you covered: “Lochner,” “rational basis,” “civil forfeiture,” “Twitter Laureate,” and “subtreasury.” Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-159.pdf South Carolina Civil Forfeiture, https://ij.org/case/south-carolina-civil-forfeiture/ Big Tyme Investments, LLC v. Edwards, https://www.ca5.uscourts.gov/opinions/pub/20/20-30537-CV0.pdf Thornley v. Clearview AI, Inc., http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-14/C:20-3249:J:Ha

The Fourteenth Amendment’s Privileges or Immunities Clause resurfaces in the Seventh Circuit, where the State of Indiana treated some newcomers differently from some long-time residents. Meanwhile, an Arkansas school district augments a consent decree from the days of school desegregation. But there’s a question of whether it did so for the right reasons. Transcript: https://ij.org/wp-content/uploads/2021/01/short-circuit-158.pdf Hope v. Commissioner of Indiana Department of Correction, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-06/C:19-2523:J:Rovner:aut:T:fnOp:N:2640105:S:0 Junction City School District v. Arkansas Department of Education, https://ecf.ca8.uscourts.gov/opndir/20/12/191340P.pdf Saenz v. Roe, https://supreme.justia.com/cases/federal/us/526/489/ Justin Pearson, https://ij.org/staff/justin-pearson/ Robert Peccola, https://ij.org/staff/rpeccola/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id30906201

How do you put together a campaign of litigation under various state constitutions across the country? And how to you get state courts to take their own constitutions seriously? On this special Short Circuit we explored these questions through the history of marriage equality litigation in state courts before the issue went to the U.S. Supreme Court. Joining host Anthony Sanders were Professors Lee Carpenter and Ellie Margolis of Temple University’s Beasley School of Law who recently wrote an article on this subject. They recount the history of marriage equality litigation and more broadly examine what to think about when litigating under state constitutions. Whatever the issue is that you’re fighting for—including a few we fight for at the Institute for Justice, such as eminent domain abuse and economic liberty—this is a fun “how to” conversation for public interest lawyers of all kinds. Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-157-transcript.pdf One Sequin at a Time: Lessons on St

Is it time for the Supreme Court to spread some privileges or immunities cheer? Michael Bindas discusses a cert petition pending at SCOTUS on navigating the navigable waters, one of the few rights the Court has said the Privileges or Immunities Clause protects. He also tells us about a Ninth Circuit case on COVID orders and religious liberty. Meanwhile, Diana Simpson digs into a very deep dive of a First Circuit opinion on recording the cops in Massachusetts. Turns out the First Amendment protects it. Transcript: https://ij.org/wp-content/uploads/2020/12/short-circuit-156.pdf Courtney v. Danner, https://ij.org/case/lake-chelan-ferries/ Project Veritas Action Fund v. Rollins, http://media.ca1.uscourts.gov/pdf.opinions/19-1586P-01A.pdf Calvary Chapel Dayton Valley v. Sisolak, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/15/20-16169.pdf Michael Bindas, https://ij.org/staff/mbindas/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcas

The first two items in the Bill of Rights get top billing. Does a nine-year-old felony conviction for tax fraud justify continuing to deny someone their Second Amendment right to keep and bear arms? That’s something the Third Circuit addressed, with a spirited dissent. Patrick Jaicomo discusses this case about the Second in the Third. Meanwhile, the Fifth Circuit recognizes that new law has come to light regarding the First Amendment, and that changes everything for Dr. Ron Hines, in his quest to bring telemedicine to our animal friends. Without the aid of a fifth, Ari Bargil gives us the history of quite a bit of speech and rational basis action over the last few years in Circuit Number Five. Transcript: https://ij.org/wp-content/uploads/2020/12/Short-Circuit-155-Edited.pdf Folajtar v. Attorney General (2d Amendment case in the 3d Cir.), https://www2.ca3.uscourts.gov/opinarch/191687p.pdf?mkt_tok=eyJpIjoiT1RjNU56ZzVZVGhoWXpkayIsInQiOiJwbkE1NUdDNmN4ZStQQmlNQWxlUEQ0QWUwanY0ZVp6QWF3ZCtGWGI1ajRqa2t2TzhTTkZUcFhzNW