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Felon Dispossession Laws in the Tenth Circuit:  Lyle Denniston wonders over at SCOTUSblog if "Heller [said] too much" when it declared a Second Amendment right to a handgun for self-defense.  His question comes after Tenth Circuit Judge Timothy M. Tymkovich expressed concern in a concurring opinion "that the dictum inhibits lower courts from exploring the contours of [District of Columbia v.] Heller and its application to firearms restrictions....I...wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases."  The dictum to which Judge Tymkovich is speaking is "...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[,]" a phrase specifically addressed in the Tenth Circuit case of U.S. v. McCane.  In the case, Markice Lavert McCane, challenged his conviction for violating the federal felon dispossession law by arguing, among other points, that the law was unconstitutional under the Heller decision.  Denniston reports that "feeling bound by Heller dictum," a three-judge panel rejected McCane's argument, and prompted Judge Tymkovich to write separately.  Judge Tymkovich's main complaint with the felon dictum in Heller "short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts."  Doug Berman has this post on Judge Tymkovich's concurrence at Sentencing Law and Policy. 

Originalism and Activism:
  Stuart Taylor Jr. comments on The Ninth Justice that the nomination of Judge Sotomayor to the Supreme Court has sparked debate among legal scholars over the extent to which "conservative justices are guilty of judicial activism."  This all began with a statement by Ramesh Ponnuru in a New York Times Op-ed.  According to Taylor, the statement "clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint[.]"  In Taylor's view, conservative justices are not always the champions of judicial restraint, and Heller's discussion of the Second Amendment is a prime example.  The decision in Heller has been called an exercise in "faux originalism" by Judge Richard Posner of the Seventh Circuit, and causes Taylor to wonder "[w]hat justification is there for unelected, life-tenured justices to strike down democratic choices based on highly debatable interpretations of ambiguously worded, indeterminate constitutional provisions?"  Of course, the decision in Heller did not reach the level of the infamous, Roe v. Wade, a "made-up constitutional law that can be maintained only on the basis of respect for precedent," but Taylor still believes, in some cases, "it's fair" to brand conservative justices as activists.  

Crime-facilitating Speech - Blogging About Undercover Officers:  At Volokh Conspiracy, Eugene Volokh links to a piece that describes how a Virginia woman has been arrested for blogging about the members of a local drug task force. She has been charged with harassment of a police officer.  The woman apparently posted one officer's home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home.  The author of the post, Randy Balko, believes that "Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it's a tougher call when the officers in question work undercover."  Volokh believes this is a tough call and discusses the point in his post, and his article Crime-Facilitating Speech.  Volokh believes that such speech is dangerous, as it could help criminals kill police officers or conceal their crimes, but he also believes that the speech does have value for law-abiding citizens.  He thinks the same speech could help noncriminals realize their acquaintances aren't what they seem, and could help criminal defense lawyers defend their clients.  While this may be true, the fact that such speech could allow criminals to kill undercover officers and visit their homes, seems worthy justification for limiting what's posted on the web.  

1 Comment

Re: Criminalization of speech.

First of all, does the "harassment" statute give fair notice of the Virginia woman's conduct?

Second, while I am 100% sympathetic to the problem, I don't see how, consistent with the First Amendment, one can limit this.

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