A question about Caetano v. Massachusetts

Yesterday, the Supreme Court issued a two-page unsigned opinion resolving a dispute between the Commonwealth of Massachussets and Jaime Caetano, who had been prosecuted for possession of a stun gun. The Court ruled that the law prohibiting stun gun possession violated the second  amendment.

In the brief discussion, the Supreme Court dismissed an argument made by Massachusetts. Massachusetts had argued that stun guns could be prohibited under an old common-law rule allowing prohibition of items which are “dangerous per se at common law and unusual”.

That’s a fine, and reasonable rule; there’s a difference between weapons (which are protected by the second amendment) and random dangerous things (such as, say, containers of ricin, or suitcase nukes).

But where exactly does that line lie? The Supreme Court didn’t get into it, because Massachusetts had conflated “unusual” with “in common use at the time of the Second Amendment’s enactment”, a standard which result in a second amendment that functioned as the first amendment would function if it were held not to apply to the internet because the authors of the first amendment couldn’t have imagined computers.

Yet it’s an interesting and important question. What’s the line between an unprotected dangerous per se object and a protected weapon?

Nebraska v Colorado

My news feed was interrupted yesterday, a bit, by talk of an unusual thing: two Supreme Court Justices dissented from the denial of certiorari by the Supreme Court. This is a rare thing for various reasons, and rare as it is for me to agree with the Justices who dissented, I think in this case they may have it right.

The case in question was an original jurisdiction lawsuit between Nebraska and Oklahoma (on one side) and Colorado on the other side. Under Article III of the US Constitution, which says “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction”, such cases go straight to the Supreme Court, which acts as a trial court, rather than an appellate court, in such cases. The distinction here is important: when a trial court is deciding whether or not to take a case, it should in general base that decision not on an analysis of the merits of the case, but on the answer to the questions: (1) if what the plaintiff alleges is true, would there be an injury sufficient to seek redress, and (2) is there enough evidence that it’s plausible that it’s true and a trier of fact should be enlisted to determine whether or not it is?

Oklahoma and Nebraska allege that (a) Colorado has established a legal regulatory scheme which is contrary to federal law, and that federal law prohibits Colorado’s regulatory scheme, and (b) that regulatory scheme has resulted in harm to Nebraska and Oklahoma in the form of increased drug trafficking and, as a result, increased expenses in enforcement activity and incarceration.

The thing is, for a trial court considering whether or not to take the case, allegation (b) above should be treated as true, and the question should be: if the allegation were true, is there an actionable case?

There’s a colorable argument that even if the argument were true, there would be no actionable case. While I think it’s fairly clear that Colorado’s regulatory scheme conflicts with the Controlled Substances Act, it’s also not clear to me that the Controlled Substances Act gives anyone other than the US Dept. of Justice standing to sue to resolve such conflicts. And it’s also not clear to me that the nature of the harm Oklahoma and Nebraska allege is a federal question.

But surely those are questions that are entitled to a hearing. Stripped of the context of the war on drugs, these are important questions of structural federalism – and only the Supreme Court can really resolve them.

So I think the dissent had it right: the court should have taken this case.

[Note that while I think there’s an interesting question of law here, and while I think it’s entirely possible that Colorado’s regulatory scheme is actually prohibited by federal law and pre-empted in a way that renders it unconstitutional, I think that’s a question regarding the regulatory scheme.

Which is to say: it’s perfectly clear that the federal government cannot compel Colorado to make  marijuana illegal under Colorado law, or to enforce the federal law; what is at issue is whether or not Colorado may construct a regulatory scheme which is inconsistent with the federal regulatory scheme.

To take it out of the realm of drugs for a moment, a structurally equivalent case would be if the federal government had a policy prohibiting the trade in ivory in order to protect the remnant elephant population, but Colorado law allowed a heavily regulated, licensed trade in ivory; would that regulatory system be allowed to stand?

The irony in this, of course, is that Oklahoma and  Nebraska’s position is massively self-defeating as a matter of policy. If they’re right that the CSA precludes Colorado’s regulatory scheme, the net result would be that marijuana  would remain not-illegal under Colorado law, but that Colorado would be unable to regulate its trade; that seems like it would be more likely to produce problems for the neighboring states.]


local democrats for Trump?

According to http://www.mercurynews.com/politics-government/ci_29631091/democrats-conflicted-trump-candidacy-reaches-tipping-point, many bay area Democrats are hoping for Donald Trump to win the Republican primary because they think he’ll be easy to beat.

I *hope* they’re right, but I strongly suspect they are wrong.

I mean, Mr. Trump won’t win in California; I think that’s clear.

But in Ohio? Virginia? Florida? Pennsylvania?

I think it can be done.

Mr. Trump is tapping into a real, deep anger. The white lower middle class has experienced more than a generation of economic decline and (rightly) believes its concerns are ignored by both political parties. Mr. Trump is playing to and enflaming their anger and hoping to ride the anger to power. And, sadly, Sen. Clinton is a *terrible* foil for that anger – not only is she the establishment’s choice, her husband was one of the people who *orchestrated* the Democratic party’s move away from advocating for the interests of the working class and towards advocating for the interests of the financier and rentier classes.

Which is to say: I think Mr. Trump has a better chance of winning a general election than most people give him credit for, and so the people quoted in the article strike me as being crazy people playing with fire.

Fire is fun to play with, to be sure. But exercise some care!

Nice little ballot measure you’ve got there. It would be a shame if anything happened to it.

According to http://www.latimes.com/politics/essential/la-pol-sac-essential-politics-20160301-htmlstory.html#4416, tobacco industry lobbyists are threatening a referendum on the 21+ smoking bill.


But there’s something else in the article which gives me pause.

> In a March 2 email to a legislative staffer, lobbyist George Miller, IV wrote,“When we hit the street with a referendum paying $10 per signature, Prop. 30 is dead as well as $2 a pack tax. We will have every signature gatherer on an exclusive. Just letting you know so you can’t say you weren’t warned.”

This requires some explanation, I think.

In California, signatures for ballot propositions are usually gathered by professional signature-gatherers: people who are in it for money, not for the love of the cause. They typically circulate multiple petitions at the same time (I was once asked by the same signature gatherer to either recall, or not-recall, the Governor; he was getting paid for both petitions).

The lobbyist named “IV” in the article is saying that if it goes to a referendum drive, the tobacco companies will hire signature gatherers on an exclusive basis – prohibiting them from circulating anything *other* than the tobacco referendum, and paying them substantially more than normal to compensate.

This may make sense as a matter of tactics, as a way to ensure the referendum gets on the ballot: by focusing the gatherers on *one* initiative you align their incentives with yours and make them much more concerned about getting signatures for you.

But couched in this way, it’s a threat. “If you sign this bill we don’t like, we’ll do what we can to make it impossible to do these other things you want to do.”

It’s probably politics as normal.

Yet it’s disgusting and does nothing to endear me to the tobacco industry, or to politics as normal.

Farewell, Dr. Carson

The word today is that Ben Carson is stepping out of the Presidential race and is endorsing Donald Trump.

I never understood Dr. Carson’s campaign. I watched him in the debates, before my life fell apart again in December, and it always seemed like he didn’t belong there – that he was a smart man who was totally out of his depth because he was trying to operate outside his domain.

There’s a kind of arrogance really bright people are often subject to, where they assume that because (a) they’re really smart and capable and (b) they’re really good at domain [x], they must also be really good at domain [y], which they care about but have no experience or knowledge in.

Dr. Carson seemed to be suffering from that; as demonstrated in the debates, his policy ideas and pronouncements were usually “not even wrong”, but he was very, very confident in them.

So I’m not sad to see him go; he was not contributing much of substance. I am surprised to see him endorse Mr. Trump, and I’m not sure it matters; I don’t think endorsements mean much in most years, and less in this one.

But I continue to find it odd how much success he *was* having in the race. What were the people who were voting for him seeing that I wasn’t, and how were they not seeing what I was?

The California Legislature did what, now?

The California Legislature  has passed a bill, and the Governor is expected to sign it, which increases the age at which one may purchase or consume tobacco products to 21.

I’m not, generally, in favor of smoking tobacco. My grandmother died of lung cancer. My mother died of lung cancer. A close aunt is currently struggling with lung cancer. My husband’s uncle recently died because of lung cancer. Smoking-induced lung cancer is a plague upon humanity, and  people who smoke tobacco frequently find themselves unable to give up the habit once they’ve started.

And yet.

What does adulthood mean, if it doesn’t mean that one is free to make one’s own choices? The California Legislature appears to believe that an eighteen year old is old enough to decide to donate her kidney (and go the rest of the life without one), but not old enough to decide to take up smoking (and assume the attendant risk). The California Legislature appears to believe that an eighteen year old is old enough to vote for or against a ballot measure to legalize marijuana, but not old enough to decide to smoke tobacco. The California Legislature appears to believe that an eighteen year old is old enough to enter into contracts assuming huge amounts of debt, but not old enough to decide to smoke tobacco.

This makes no sense at all.

If tobacco smoking is really so singular that the decision can’t be made by someone who can undertake normal contractual activity, then what’s the basis for believing that a 21-year-old can make the decision, or a 30-year old, or anyone at all?  Contrariwise, if it isn’t so singular, why should the law treat it as though it is?

The legislature was wrong to pass this. The governor will be wrong to sign it. And the people should repeal it by referendum.

I won’t lead the charge for that; while this law offends me, it’s just another one of those things, in the end. But I’ll support the charge if someone leads it.