Monthly Archives: August 2022

Judge Diarmuid O'Scannlain, joined by Judges Consuelo Callahan, Sandra Ikuta, and Ryan Nelson, dissented, arguing that the Ninth Circuit should have resolved the question itself:

I respectfully dissent from our failure to resolve the straightforward legal issues presented by this case. The Supreme Court has vacated the judgment of this Court and remanded this case to us "for further consideration in light of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022)." But today, we decline to give further consideration to the question presented to us and we decline even to deal with it.

This case presents the following question: in light of the Supreme Court's decision in Bruen, does Hawaii's "may-issue" permitting scheme violate the Second Amendment right of a responsible law-abiding citizen to carry a firearm for self-defense outside of the home? Bruen held unconstitutional a "may-issue" permitting scheme for public carry of handguns, much like the law challenged in this case. So, after Bruen, the question before us is simple. Nevertheless, our Court today declines to answer it. In refusing to do so, our Court delays the resolution of this case, wastes judicial resources, and fails to provide guidance to the lower courts of our Circuit. As a judge of this Court, I feel obliged to offer such guidance, even if a majority of my colleagues does not.

George Young wishes to carry a firearm for personal self-defense in the State of Hawaii. He twice in 2011 applied for a license to carry a handgun, either concealed or openly. His application was denied each time by the County of Hawaii's Chief of Police, Harry Kubojiri, because Young failed to satisfy the requirements set forth in section 134-9 of the Hawaii Revised Statutes ("H.R.S.").

Section 134-9 acts as a limited exception to the State of Hawaii's "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. Respecting concealed carry, section 134-9 provides that "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police may grant a license to an applicant to carry a pistol or revolver and ammunition therefor concealed on the person." The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only "[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property." The County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is "in the actual performance of his duties or within the area of his assignment."

Absent a license under section 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, H.R.S. 134-23, 134-24, 134-25, 134-26, 134-27, and may use those firearms only while "actually engaged" in hunting or target shooting.

Ten years ago, on June 12, 2012, Young filed this suit . In 2018, a three-judge panel of our Court reversed the district court's dismissal of Young's Second Amendment claim against the County, holding that he "has indeed stated a claim that section 134-9's limitations on the issuance of open carry licenses violate the Second Amendment." In 2021, sitting en banc, we reached a conclusion different from that of the three-judge panel. Following its decision in Bruen, the Supreme Court granted Young's petition, vacated our en banc decision, and remanded the case to us for further consideration in light of its opinion.

The Supreme Court in Bruen explicitly overruled the lower courts' two-step test which would apply means-end scrutiny to the Second Amendment. Because "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority," we are "bound by the later and controlling authority" of the Supreme Court, and therefore we must "reject the prior circuit opinion[s] as having been effectively overruled." As the Supreme Court just instructed us, "the standard for applying the Second Amendment is as follows: When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

In a Second Amendment case, we must "assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." However, although "[h]istorical analysis can be difficult" and, at times, it requires "nuanced judgments about which evidence to consult and how to interpret it," the analysis in this case is simple under the binding precedent set forth in Bruen. In Bruen, the Court considered the constitutionality of "proper-cause" statutes such as that enacted by Hawaii. Accordingly, the Supreme Court parsed the text of the Second Amendment and evaluated at great length "whether 'historical precedent' from before, during, and after the founding evinces a comparable tradition of regulation" to "proper-cause" laws. After thorough review, the Court concluded that neither text nor historical precedent support "proper-cause" language restrictions.

As with the petitioners in Bruen, Young is an "ordinary, law-abiding, adult citizen[ ]," and is therefore unequivocally "part of 'the people' whom the Second Amendment protects." As the Court observed in Bruen, "handguns are weapons 'in common use' today for self-defense." And the plain text of the Second Amendment contemplates not just the "keeping" of arms in the home, but also the "bear[ing] of arms" beyond it. Therefore, as with the petitioners in Bruen, "[t]he Second Amendment's plain text thus presumptively guarantees" to Young "a right to 'bear' arms in public for self-defense."

Because "the Constitution presumptively protects" Young's right to carry arms in public for self-defense, Hawaii "must justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Put differently: since the Second Amendment guarantees to the people "a general right to public carry," the constitutionality of section 134-9 hinges on whether there was at the time of the ratification of the Second Amendment or the Fourteenth Amendment "a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense." The government has the burden to show such a tradition.

But Hawaii cannot meet its burden, because, as the Supreme Court held in Bruen, there was no such tradition. Nor was there a "historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." Historical restrictions on public carry may have "limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms." But such valid historical exceptions are quite the opposite of section 134-9, which flips the presumption by limiting public carry licenses to "an exceptional case."

A law-abiding citizen need not demonstrate a special need to exercise his or her right to carry arms in public for self-defense. But like the New York law at issue in Bruen, section 134-9 requires ordinary citizens like Young to demonstrate an exceptional reason to obtain a public carry permit. Thus, section 134-9 violates the Fourteenth Amendment by "prevent[ing] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." Bruen admits of no other conclusion.

The Second Amendment "'elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense." The Supreme Court has thus admonished the lower courts that this right "demands our unqualified deference." But "may-issue" permitting schemes violate this Second Amendment right. Like all such schemes, Hawaii's "may-issue" permitting law, section 134-9, infringes the right of Young, a law-abiding responsible citizen, to carry a handgun in public for the purpose of self-defense. Young has indeed stated a claim that section 134-9 violates the Fourteenth Amendment by depriving him of the right protected by the Second Amendment.

Our Court should say so. We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand.

Instead of remanding without explanation or justification, we should reverse the district court in an opinion holding that Young has stated a claim upon which relief may be granted, that section 134-9 is unconstitutional, and that the case must proceed accordingly in district court. If we issued such an opinion, we would ensure that Bruen is applied uniformly in our Circuit in future cases. And in this case, we would save the parties and the district court the time and expense of continuing to litigate issues that we could resolve easily.

Today we shy away from our obligations to answer the straightforward legal questions presented on appeal and to provide guidance to the lower courts in our Circuit. And in doing so, we waste judicial resources by sending the parties back to square one at the district court. The parties have waited a decade to resolve this litigation, and Young has waited over ten years to exercise his constitutional right to carry a handgun in public for self-defense. Because we opt not to decide this simple case, we force Young to wait even longer.

Someday, Young will finally be vindicated. Someday, our Court must issue an opinion that respects the rights enshrined in the Second Amendment.

See original here:
Ninth Circuit Sends the Hawaii Concealed Carry Challenge Back Down to District Court - Reason

Were only about 1 weeks shy of Labor Day, the unofficial starting point of the general election campaign. Of course, candidates and their teams have been campaigning for many months now. But we voters start paying more attention to election matters in early September, just a couple of months before Election Day---the first Tuesday after the first Monday in November.

Since party organizations and candidate campaigns have been hard at it for so long, laying the groundwork to convince voters and then turn them out to vote, we can assume theyve been covering their bases, shoring up the weak spots in their messages.

Its no secret what those weak spots are. Public opinion polls show clearly what voters consider the important issues and how they feel about them. And where they lay blame for aspects of their lives that make them unhappy.

And yet at this late date---only 75 days before the 2022 general election---neither of the two major parties has come up with ways to resolve some of the major issues that voters have laid at their doorsteps.

For instance, voters blame Democrats especially for failing to solve three issues: inflation (rising prices), illegal immigration at the southern border, and a rise in crime.

Republicans hammer away at all three.

To take them one at a time:

INFLATION. While price increases appear to have been leveling off in the past couple of months, the year-to-year numbers remain higher than theyve been for decades, in the range of eight or nine percent. Gas prices are coming down but remain well above where they were a year ago. And food, rent, housing, health care, and other key categories continue well above voters comfort levels.

The Biden administration and the Democratic Congress took recent steps to reduce some of those costs with the Inflation Reduction Act. But most of the primary benefits of that bill wont kick in before the November election.

Democrats need to develop a response to high prices that people will understand and believe. That hasnt happened yet, and the clocks ticking.

IMMIGRATION. For whatever reason, crossings at the Mexican border by undocumented migrants have risen sharply in recent months. The United States has procedures to deal with that flow, including turning many of the migrants back to await the handling of their requests for asylum, refugee status, and other justifications for coming here. But the sheer numbers of border crossings alarm many Americans, particularly when illegal drug smuggling, human trafficking, gang infiltration, and potential terrorism come to light as part of the problem.

Democrats appear, at least to many Americans, strangely silent on the issue. The party and its candidates need to craft credible answers that show they can lawfully handle the situation. That obviously has not been done.

CRIME. Violent crimes, car thefts, and other serious unlawful activities are on the upswing in the United States. Law enforcement agencies credit gang activity and the craving of young men for guns for much of the crime growth. Other reasons probably include the COVID-19 pandemic, inflation, and drug abuse. Todays crime level still remains below what it was 30 years ago.

But regardless of the actual causes, Democrats are getting the blame for their apparent inability to beat back the growth in crime. Republicans eagerly slap them as the cause of the brief spate of looting and burning that followed the murder of George Floyd by four Minneapolis police officers and other cases of police misconduct against people of color. A few leftists called for defunding the police, a phrase that some Republicans promptly labeled a Democratic Party hallmark.

Democrats need to point out that policing is a local responsibility, not a federal one, and that Congress has increased its financial aid to state and local police departments across the nation.

As for Republicans, they face similar weaknesses in the eyes of most Americans. There are at least four areas where theyve stuttered rather than respond with credible answers: gun violence, climate change, abortion, and threats to democracy.

GUN VIOLENCE. After the rash of killings in schools, churches, shopping malls, and elsewhere this spring and summer, gun safety rose sharply as an issue of concern in public polling. Democrats seized the initiative, sponsored several bills in Congress and state legislatures, and spoke loudly about the need for rational steps to reduce the likelihood of mass shootings.

A large majority of Americans favors those steps. But Republicans, backed by the National Rifle Association, blocked them, claiming they threatened Second Amendment freedoms. For most people that dog wont hunt anymore. Republicans need to explain exactly how the recent calls for gun safety would violate the Second Amendment, and develop alternative answers other than arming teachers, something that frightens most parents.

CLIMATE CHANGE. Public polling finds most Americans now believe that human actions are heating the earths atmosphere, with only a few decades left to halt the steady temperature climb before its too late. Climate deniers are fading into irrelevance. Biden and most Democrats are in step with public opinion on this issue.

Republicans need to craft a response that doesnt make them look like apologists bought by the fossil fuel industry. There are valuable opportunities for lawmakers who can show how the nation can steadily wean itself off coal, gas, and oil while steadily shifting energy production to renewables. Thats a course most Republicans have been unwilling to consider.

ABORTION. Republicans bear responsibility for the shift in Supreme Court membership that this summer led to the overturning of the Roe v. Wade decision after 50 years in force. Public opinion polling finds most Americans favor the right to abortion in most cases, yet most Republican lawmakers strongly oppose that position. Some of them now find themselves backed into a corner by their past statements on the subject, and are trying unsuccessfully to find a way out.

Its hard to conceive what such a path might be. Almost everyone has by now developed an opinion on abortion, and can spot a hypocrite from afar. Republicans who are genuinely anti-choice and dont want to equivocate may be best off just admitting it, and outlining their positions on other issues with which voters might be more comfortable.

THREATS TO DEMOCRACY. According to public opinion polling, while most Republicans approve of Donald Trump, most voters disapprove of him personally. They also react strongly to what they perceive as his threats to democracy, like the Jan. 6 mob attack on the Capitol, attempts to declare the 2020 presidential election invalid (The Big Lie), state legislation that threatens a valid count of ballots, gerrymandering, and other such activity.

Republicans who support one or more of those threats may find themselves vulnerable to a number of voters with such fears. The Republican Party itself, including the Republican National Committee and other organizations, continues through its silence to condone Trumps claims about 2020. Some Republican elected officials and party leaders go so far as to call for action against the FBI, the IRS, and other government agencies and employees.

Few Republicans have the courage to counter those positions of their party. That was especially true during the primary elections this year, when most of the party faithful gave their support to the more extreme GOP candidates.

But now the general election is upon us, and Republicans, like Democrats, compose less than half of the electorate. Independents will decide the general election. Unless a Republican candidate is running in a deep red state or district, it may be wise for him or her to speak truth on the campaign trail.

Thats what most voters want to hear.

Originally posted here:
General election campaign is about to heat up - Carroll Daily Times Herald

After the Supreme Court, the Fifth Circuit is the most fascinating court in the land. The Fifth Circuit gets lots of bad publicity for its conservative bent, but as I explained my address, the conservatives are not monolithically conservative. Case in point Stephen Douglass (no, not that Stephen Douglas)v. Nippon Yusen Kabushiki Kaishai. This dispute arose from a collision in foreign waters. A foreign corporation was sued for violating federal law in federal court. The question presented is whether the same rules that govern personal jurisdiction under the Due Process Clause of the Fourteenth Amendment apply to personal jurisdiction under the Due Process Clause of the Fifth Amendment.

The en banc court split 12-5. The majority opinion was written by Judge Jones, and was joined by Chief Judge Richman and Judges Smith, Stewart, Dennis, Southwick, Haynes, Costa, Ho, Duncan, Engelhardt, and Wilson. In dissent were Judges Elrod, Graves, Higginson, Willett, and Oldham. This case does not fall along ideological lines. Not at all. At least on the Fifth Circuit, the views on personal jurisdiction are heterodox. But beyond these right-left divides, the court's prominent originalists disagreed over how to interpret the Fifth Amendment.

The majority opinion by Judge Jones states the issue:

The Fifth Amendment due process standard governs the personal jurisdiction inquiry in this lawsuit raising federal claims in federal court. The en banc dispute centers on whether the Fifth Amendment standard mirrors the "minimum contacts" and "fair play and substantial justice" principles underlying the Fourteenth Amendment personal jurisdiction inquiry.

The majority opinion by Judge Jones followed precedent governing the Due Process Clause of the Fourteenth Amendment, and held that the foreign corporation was not "at home" in the United States. Specifically, the majority held that the same test applies for both the Fifth and Fourteenth Amendments:

We reject the plaintiffs' theory and hold that the Fifth Amendment due process test for personal jurisdiction requires the same "minimum contacts" with the United States as the Fourteenth Amendment requires with a state. Both Due Process Clauses use the same language and serve the same purpose, protecting individual liberty by guaranteeing limits on personal jurisdiction. Every court that has considered this point agrees that the standards mirror each other. The plaintiffs' rule-centric argument, that importing the Fourteenth Amendment standards into the Fifth Amendment context renders Rule 4(k)(2) a nullity, is unpersuasive and wrong.

Judge Elrod wrote the principal dissent, which was joined by Judges Graves and Willet in full, and by Judges Higginson and Oldham in part (starting at p. 39). Judge Elrod writes that the Supreme Court has "reserved" the question of whether the Due Process Clause of the Fifth Amendment may have a different meaning that the Due Process Clause of the Fourteenth Amendment with respect to personal jurisdiction.

Elrod posits that the meaning of "due process of law" is different in the Fifth and Fourteenth Amendments. That is, there was "linguistic drift" between 1791 and 1868. Here, she cites citing recent scholarship from Max Crema and Larry Solum, Steve Sachs, and others.

The relationship between the amendments' Due Process Clauses and the limits of federal courts' personal jurisdiction clearly merits "considerable elaboration." Ante at 27. Far from frivolous, this thorny topic has launched more than a few law review articles.2 Indeed, the latest originalist scholarship strongly suggests that "'due process of law' has undergone linguistic drift." Max Crema & Lawrence B. Solum, The Original Meaning of "Due Process of Law" in the Fifth Amendment, 108 Va. L. Rev. 447, 453 (2022). That is, "its meaning has changed since the First Congress proposed [the Fifth Amendment] for ratification" in 1789, and before the 39th Congress proposed the Fourteenth Amendment in 1866. Id. at 453, 461524 (examining a wide array of primary sources and conducting rigorous historical and corpus-linguistics analysis). Thus, it is quite reasonable to think that the original public meaning of the Fifth Amendment's Due Process Clause diverges from the Fourteenth Amendment's as it bears upon personal jurisdictionparticularly given the interstate-federalism principles baked into the Fourteenth Amendment.3

FN2: For just a small sampling, see generally, e.g., Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020); Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509 (2019); Wendy Perdue, Aliens, the Internet, and "Purposeful Availment": A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455 (2004); see also Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017).

Elrod thought it proper for the lower courts to percolate this question, on which the Supreme Court has not yet brewed:

In my view, it is precisely our duty as an inferior court to percolate the arguments raised by this novel constitutional issue for eventual Supreme Court review. Cf. Dep't of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in grant of stay) (noting that the percolation "process that permits the airing of competing views . . . aids this Court's own decisionmaking process"); Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1784 (2019) (Thomas, J., concurring) ("[F]urther percolation may assist our review of [an] issue of first impression . . . ."). We are asked in this case to interpret the Fifth Amendment's Due Process Clause with respect to federal court personal jurisdictiona question of first impression that the Supreme Court has repeatedly declined to answer. And when we are called to interpret a constitutional provision without on-point Supreme Court guidance, we should look first to the Constitution's text, history, and structure before we borrow freely from adjacent Supreme Court jurisprudence.

The opinion addresses the dissent, briefly, in a footnote:

This majority opinion addresses the exact arguments raised by the plaintiffs consistently throughout the litigation. But for one point, we will not address the dissents' wholly novel arguments, which pointedly divorce themselves from the parties' theory of the case. Post at 47 n.5 ("I disagree with both approaches because both start not with the Fifth Amendment but with inapplicable Fourteenth Amendment case law."). By standing up for the law as it has been accepted unanimously among the circuit courts, we decline to consider adversarially untested propositions. Moreover, the principal dissent's criticism that NYK bore some burdento anticipate and analyze personal jurisdiction without any reference to well-settled case lawis simply wrong. At the very least, it is the plaintiffs' burden to establish the court's jurisdiction in response to a Rule 12(b)(2) personal jurisdiction challenge by a defendant. Johnson v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). If we were to address the merits of the principal dissent's theory, however, we would note its repeated insistence that, consistent with the Fifth Amendment, Congress could pass a law to subject foreign defendants to American federal court jurisdiction for any injuries inflicted on American citizens or claims arising abroad. Whether this is correct or not, we do not assay. Moreover, we cannot analyze this theory because the dissent posits no rule or limits flowing from the Fifth Amendment. And finally, no court has adopted the dissent's view that Rule 4(k)(2) alone suffices to extend substantive personal jurisdiction to the constitutional limit, and the Rule's language alone suggests otherwise.

Judge Elrod addresses Judge Jones's footnote with another footnote that stretches more than a page. It begins:

The majority opinion's footnoted response to this dissent is unresponsive on this score: Lacking Supreme Court case law restricting federal courts' exercise of personal jurisdiction under the Fifth Amendment, NYK must convince us, as a matter of text, history, and structure, that the Fifth Amendment's Due Process Clause merely mimes the Fourteenth's as to personal jurisdiction. But NYK has made no such argument, and nor has the majority opinion.

In fact, the majority opinion expressly refuses to engage with the contrary arguments presented in this dissent, declining to address anything but "the exact arguments raised by the plaintiffs." Id. (emphasis added). Respectfully, I do not think our approach should be so blinkered. Of course we take cases as they are presented to us, but that does not mean that we must parrot parties' "exact" views in our opinions. Our duty is to resolve the appeal correctly and offer our independent explanation of the bases for our decision.

I can't do justice to Judge Elrod's extensive dissent here. It engages with all of the leading scholarship on the Due Process Clause of the Fifth Amendment. Read Part II. And in Part III, Elrod concludes that the Process Clause of the Fifth Amendment allows the district court to exercise jurisdiction:

What does the original understanding of the Fifth Amendment's Due Process Clause mean for these cases before us? The answer is really quite simple: the plaintiffs' cases should go forward. Because the Fifth Amendment's Due Process Clause, as originally understood, poses no extrinsic limit on Congress's ability to authorize expansive personal jurisdiction in federal courts, the district court had personal jurisdiction over NYK pursuant to Rule 4(k)(2).

And here is the dissent's conclusion:

The Supreme Court has never interpreted the Fifth Amendment's Due Process Clause with respect to personal jurisdiction. The Court has expressly left the question open. It is our duty to offer an answer. But the majority opinion simply copies and pastes inapplicable modern Supreme Court case law expounding on the Fourteenth Amendment, as if the Fourteenth Amendment imbues the Fifth Amendment with new meaning. In my view, we should not put new wine in an old wineskin. There is no substitute for a diligent inquiry into the original public meaning of the Fifth Amendment's Due Process Clause. As originally understood and applied (or rather, not applied), the Fifth Amendment imposed no significant restriction on Congress's ability to authorize service of process abroad, and hence, to expand federal courts' personal jurisdiction.

Judge Ho wrote a concurring opinion joined by Judge Costa that responded to the dissents by Judge Elrod (p. 28). Ho explains that reading the Due Process Clause to have different meanings in the Fifth and Fourteenth Amendments cannot be squared with the Court's incorporation doctrine:

Under the doctrine of incorporation, the Supreme Court has repeatedly instructed that we must interpret the Due Process Clause of the Fourteenth Amendment coextensively with various provisions of the Bill of Rights. And therein lies the logical challenge I see with the dissent's proposed framework. For if we accept the dissenters' theory of linguistic drift when it comes to due process, logic would presumably require that we entertain the possibility of linguistic drift in every aspect of due process. For example, what does the First Amendment require when it comes to the states? Well, we know the First Amendment might have meant one thing in 1791, but something quite different in 1868. And so too with the Second Amendment, the Fourth Amendment, the Eighth Amendment, and so on. So presumably the dissenters would apply a different body of First Amendment law, Second Amendment law, and so on, to the states as opposed to the federal government, in recognition of the possibility of linguistic drift between 1791 and 1868. But we don't do that. Because the Supreme Court has told us we can't do thatmost recently, in N.Y. State Rifle. And that's the logical problem I see with the dissent's approach. If Supreme Court precedent requires us to apply the same standard of "due process" to the states and the federal government when it comes to other constitutional rights like the First and Second Amendments, what's the logic in applying different standards when it comes to due process itself? If we're being principled about linguistic drift, we presumably wouldn't limit it to just the Fifth Amendmentor just the Due Process Clause of the Fifth Amendment. We would either allow for linguistic drift with respect to every provision of the Bill of Rightsor to none of them. To my mind, logical fidelity to Supreme Court precedent would seem to suggest that the answer must be none.

Judge Ho finds that fidelity to Supreme Court precedent, even for an originalist judge, compels this ruling:

But the members of this court all agree that fidelity to Supreme Court precedent must trump fidelity to text and original public meaning. And that means reading precedent faithfully. "Lower court judges don't have license to adopt a cramped reading of a case in order to functionally overrule it." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quotations omitted). See also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019) ("Of course, judges can always draw razorthin distinctions and contend that a particular issue is not governed by a nonoriginalist precedent. But judges should resist this temptation."). "[L]ogic [may] demand[] that we extend an [allegedly] atextual body of precedent in order to preserve rationality or consistency in the law." Williams, 18 F.4th at 821 (Ho, J., concurring).

Perhaps the Supreme Court will adopt the two-tier approach in the future. But for now, Judge Ho will stick with precedent:

Perhaps the Supreme Court will someday switch gears and embrace the dissent's view that due process under the Fifth Amendment is indeed different from due process under the Fourteenth Amendment. Perhaps the Court will one day hold that fidelity to text and original public meaning necessitates the complexity of developing two distinct bodies of federal constitutional rightsone against the feds and one against the states. But until then, I will stick with the simplicity of the approach adopted by the majority of my colleaguesnot to mention all of the circuits that have previously addressed the issue.

Judge Oldham wrote a solo dissent. He does not follow the "linguistic drift" argument advanced by Judge Elrod. Rather, he made yet another claim about the original meaning of the Fifth Amendment:

This case should be resolved by two propositions. First, the Supreme Court has never answeredin fact, it has expressly left "open""the question whether the Fifth Amendment imposes the same restrictions [as the Fourteenth] on the exercise of personal jurisdiction by a federal court." Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1784 (2017); see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality op.); Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987). Second, as originally understood, the Fifth Amendment did not impose any limits on the personal jurisdiction of the federal courts. Instead, it was up to Congress to impose such limits by statute. See, e.g., Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 171727 (2020); Picquet v. Swan, 19 F. Cas. 609, 615 (C.C.D. Mass. 1828) (No. 11,134) (Story, J.); see also ante, at 5461 (Elrod, J., dissenting). That should've been the end of the case. With all respect for my esteemed colleagues, I do not understand how this case implicates (1) "linguistic drift." See ante, at 4344, 63 (Elrod, J., dissenting). Nor do I see how the Supreme Court's (2) "longstanding incorporation jurisprudence" or (3) unenumerated-rights precedents prevent us from adopting the originalist answer here. See ante, at 3132 (Ho, J., concurring).

Judge Ho also responds to Judge Oldham's dissent:

So we agree that there is one body of due process law, not two. Here's where we part company, then: If we're agreed that there's only a single body of due process law, then I don't see how we can ignore Supreme Court precedent under Fourteenth Amendment due process in a case involving Fifth Amendment due process. And that's where my reference to the doctrine of incorporation comes in. Judge Oldham dismisses my invocation of the incorporation doctrine on the ground that that is a doctrine of substantive due processwhereas this is a personal jurisdiction case, which implicates procedural due process. See id. at 102. He makes the same observation about the judicially-created right to abortion examined in Carhart. See id. at 103. He's of course entirely right that both the incorporation doctrine generally, and abortion in particular, are creatures of substantive due process. But I don't see why the substantive/procedural due process distinction should make any difference here.

On the Fifth Circuit, three prominent originalists (Elrod, Oldham, and Ho) offer differing accounts of the Due Process Clause of the Fifth Amendment. What a fascinating court.

Here is the original post:
The En Banc Fifth Circuit Sharply Divides On Personal Jurisdiction and the Fifth Amendment - Reason

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It appears that we may finally to be coming out of the campaign on the left to "pack the court" with a liberal majority. That is good news. The problem is that many on the left have turned their ire on the Constitution itself as the root of all evil in our country.

In a New York Times essay, law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are calling for the Constitution to be "radically altered" to "reclaim America from Constitutionalism." In order to accomplish this dubious objective, they call for shifting from the "Pack the Court" to "Pack the States." The attack on "constitutionalism" is chilling but these professors are not the first to lash out at our Constitution as the scourge of social justice.

The New York Times column called for citizens to view the Constitution as the real enemy and to push to "radically alter the basic rules of the game." The attack on our Constitution has become something of an article of faith for the far left in recent years.

Recently, Georgetown University Law School Professor Rosa Brooks drew accolades for her appearance on MSNBCs "The ReidOut" after declaring that Americans are "slaves" to the U.S. Constitution and that the Constitution itself is now the problem for the country.

NEW YORK TIMES GUEST ESSAY CALLS FOR LIBERALS TO BYPASS BROKEN CONSTITUTION

CBS recently featured Boston University Professor Ibram X. Kendi, who proclaimed that the Second Amendment was little more than "the right to enslave."

MSNBC commentator and the Nations Justice Correspondent Elie Mystal has called the U.S. Constitution "trash" and argued that we should ideally just dump it. Mystal, who also writes for Above the Law, previously stated that white, non-college-educated voters supported Republicans because they care about "using their guns on Black people and getting away with it."

Doerfler and Moyn make the same case with a twist in seeking to pack the states. They insist that "The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." Rather than recognize that this document has produced the longest standing and most stable democratic system in history, professors denounced it as a "some centuries-old text" because it stands as a barrier to their social and political agenda. The problem, they suggest, is that many liberals still believe in constitutionalism as opposed to raw majority power.

Some are calling for "popular democracy" as an alternative approach to governance. The term is often associated with "direct democracy" where citizens have unfiltered and direct say in government decisions. It was the model expressly rejected by the Framers in favor of our system of representative democracy.

In Federalist 10, Madison wrote:

Pure democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

Instead, he created a system by which public passions could be filtered or expressed through a smaller group of representatives, to temper and refine popular impulse.

In addition to our system of representative democracy, we have institutions designed to resist popular impulse or demands. The United States Supreme Court is the principal example in using elements like life tenure to stand against majoritarian demands and what Madison called "the tyranny of the majority."

That system has served us well. It was the counter-majoritarian role that allowed the Court to strike down bans on interracial marriage, decriminalize homosexuality, and protect the rights of the accused.

However, the constitutional process strives for consensus and compromise, key elements in the success and stability of our system through decades of political and social upheaval. Yet, these professors complain that the left has "agonizingly little to show for it" and should now "radically alter the basic rules of the game." After all, they noted, "It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution." That is certainly correct. Without constitutionalism, everything then becomes a majoritarian muscle way with little need to compromise or even to consider the views of the minority.

The solution, therefore, is not to "pack the court" but "to pack the Union with new states" to change the Constitution and "reinvent" society.

They are at least open and honest about their motivations and means. The essay confirms the view of critics that the push of Democrats to create new states in Puerto Rico and D.C. are meant to secure an insurmountable majority in the push for radical changes.

It is similar to the remarks of Harvard professor Michael Klarman two years ago for court packing and insisted that Democrats can change the system to guarantee Republicans "will never win another election," at least not without abandoning their values. However, Klarman warned "the Supreme Court could strike down everything I just described" so the court must be packed in advance to allow these changes to occur.

Democratic leaders have echoed these sentiments by calling for court packing and questioning core institutions. Sen. Elizabeth Warren has declared the Supreme Court illegitimate and has called to pack the Court for rending opinions against "widely held public opinion."

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Rep. Alexandria Ocasio-Cortez even questioned the institutions value: "How much does the current structure benefit us? And I dont think it does."

The attack on "constitutionalism" says all that one needs to know about this campaign. The Constitution has long been the very thing that defined us. It is a shared covenant of faith, not with the government but with each other. Untethered from such constitutional rules, these professors seek to be freed from constitutional restraints in pursuing radical changes. It is so liberating that these professors can write that Congress should "openly defy" the Constitution to "get a more democratic order." Such Orwellian doublespeak does not little to shield the true purpose of this campaign to accumulate powers, which Madison declared "justly be pronounced the very definition of tyranny."

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For those trying to stay ahead of the mob, we are now moving beyond the Constitution. Now we must "pack the states" to liberate ourselves from that pesky Constitution. After that, our "reinvention" can begin. Ironically, however, we will be reinventing ourselves into the type of system that the Framers rejected roughly 250 years ago.

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Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.

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Founding Fathers already rejected attacks on Constitution, calls to 'pack the Court' - Fox News

Representative Matt Gaetz, a Republican from Florida, speaks during the Conservative Political Action Conference (CPAC) in Orlando, Florida, U.S., on Friday, Feb. 26, 2021

Elijah Nouvelage/Bloomberg via Getty Rep. Matt Gaetz

U.S. Rep. Matt Gaetz, the Republican firebrand who is currently embroiled in a federal sex crimes investigation, won his primary Tuesday in Florida.

Gaetz, 40, defeated former FedEx executive Mark Lombardo and retired military officer Greg Merk in the 1st Congressional District race.

In recent weeks, Lombardo aired attack ads against Gaetz, a Trump-endorsed ally who is a member of the House Freedom Caucus.

"Send this Marine to Washington. I'll respect your family," Lombardo said in one of the ads attacking Gaetz.

RELATED: Ex-Girlfriend Reportedly Testified in Matt Gaetz Investigation as His Attorney Says No 'Basis' for Case

The incumbent spent $1.1 million on local TV ads while challenger Lombardo spent at least $500,000, according to NBC News.

In another ad, Lombardo implied that Gaetz had been the FBI informant that led to the Aug. 8 search at Trump's Mar-a-Lago residence.

While Donald Trump Jr. worked the campaign trail for the congressman, the former president did not officially endorse Gaetz until last weekend on his social media site Truth Social, calling him "a relentless Fighter for the incredible people of Florida's 1st Congressional District."

"Matt is a Champion of our MAGA Agenda, who tirelessly works to Drain the Swamp, Secure the Border, Support our Brave Veterans and Law Enforcement, Defend the Second Amendment, Stand Up to the Woke Mob, and Fight the Never-Ending Witch Hunts from the Radical Left that are destroying our Country!" Trump wrote.

Gaetz is currently the subject of a grand jury investigation into whether he had a sexual relationship with a 17-year-old and paid her to travel with him. News of the investigation into Gaetz first broke last March and, according to The New York Times, was opened in the final months of the Trump administration, under then-Attorney General Bill Barr.

Matt Gaetz

Rep. Matt Gaetz

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In July, the congressman came under fire after he body-shamed a Texas teenager on social media.

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Olivia Julianna, a 19-year-old activist who lives in Houston, had taken to Twitter to criticize Gaetz for comments he made at a recent right-wing conference, when he said, "Women with the least likelihood of getting pregnant are the ones most worried about having abortions?"

"Nobody wants to impregnate you if you look like a thumb," Gaetz said at the Student Action Summit in Tampa. "These people are odious from the inside out. They're like 52", 350 pounds.'"

After Julianna criticized Gaetz on Twitter, the representative then shared her profile photo to his 1.6 million followers, adding the caption, "dander raised" to insinuate that Julianna had been angered by his remarks.

In response, the teen went on to raise more than $275,000 for abortion rights over two days.

RELATED: Texas Teen Helps Raise $275K for Abortion Fund After Being Body-Shamed by Rep. Matt Gaetz: 'You Creep'

Gaetz is now set to take on a Democrat who has already faced her own challenges with the state's Republican right.

Rebecca D. Jones, a former data manager for the Florida Department of Health, faced the wrath of Gov. Ron DeSantis during the height of the COVID-19 pandemic when she claimed she was fired from her job after she refused to lie about virus data.

She was criminally charged with using a state computer to download a file without authorization, according to The New York Times, and the case is currently pending.

Link:
Embattled Rep. Matt Gaetz Survives Florida Primary, Overcoming Biggest Hurdle on Road to Reelection - Yahoo! Voices