B.L.U.F. A look at the recent Affirmative Action case before the Supreme Court.
Originally, I intended to take Jackson apart with her own words. Instead, this is the Constitutionalist on the Court doing it for me. Having read Roberts’, Thomas’ and Gorsuch’s opinion and concurrence, it is pretty obvious that they are not sitting silent anymore regarding the opinions issued by the least qualified justices ever(?).
It is sad when you look to Sotomayer for the “reasonable” and “well reasoned” opinion from the left.
It has been another bumper term for conservatives at the Supreme Court. We have a couple of amazing wins, again.
I want to start with the following:
ROBERTS, C.J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J., filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and KAGAN, JJ., joined. JACKSON, J., took no part in the consideration or decision of the case in No. 20–1199
[xCite item=”QBP3BVS2″ p=8 pos=0]
This defines this court. On one side we have Thomas, Alito, Gorsuch, Kavanaugh, Barrett and sometimes Roberts. On the other side we have Sotomayer, Kagan, Jackson. In any case of “social impact” you can be sure that the three of them will be lock-step.
The media constantly yaps about getting one of the conservative justices to join the left. It happens. I don’t like it when it happens. The conservative judges who move over that line do so because that is what the constitution says. Not because they want a particular outcome.
In the same way, we often hear about some nasty piece of legislation where the democrats are trying to get a rhino to betray us. When Joe Manchin didn’t vote lock step with the democratic machine, I had to check the temperature in hell.
Chief Justice Roberts wrote this opinion. He made no bones about his opinion of the critical thinking of Justice Jackson:
JUSTICE JACKSON attempts to minimize the role that race plays in UNC’s admissions process by noting that, from 2016–2021, the school accepted a lower “percentage of the most academically excellent in-state Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it did similarly situated Asian applicants—that is, 1118 out of 1139 such applicants (98.16%). Post, at 20 (dissenting opinion); see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two black applicants over five years could be “indicative of a genuinely holistic [admissions] process,” as JUSTICE JACKSON contends. Post, at 20–21. And indeed it cannot be, as the overall acceptance rates of academically excellent applicants to UNC illustrates full well. According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. Ibid. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants. Ibid. The dissent does not dispute the accuracy of these figures. See post, at 20, n. 94 (opinion of JACKSON, J.). And its contention that white and Asian students “receive a diversity plus” in UNC’s race-based admissions system blinks reality. Post, at 18.
The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles).
[xCite item=”QBP3BVS2″ n=”1″ pos=1]
Attempts to minimize? That is very harsh language from one Justice to another. We see Justice Jackson attempting to lie with statistics and being called on it. If we say that there is a 25% failure rate, that sounds harsh. If we’ve only done 4 tests and only the first one failed, it is not so bad.
On the other hand, saying that 100s of people are dying at amusement parks it sounds pretty bad. Until you run the numbers and find that it 201 deaths over 20 years when amusement parks are handling millions of visitors each per park. (Busch Gardens Tampa Bay theme park averaged 4 million visitors per year from 2009-2019. It fell off during the panic.)
Jackson attempted the same thing. She claims that because 65/67 == 97.01% and 1118/1139 == 98.16% that Asian applicants are who actually have the advantage.
The importance of “The Question” is shown in footnote 2:
Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.
[xCite item=”QBP3BVS2″ n=”2″ pos=2]
Emphasis added. The court was not asked to give their opinion on Title VI vs. the Equal Protection Clause of the Fourteenth Amendment. Because they were not asked, they leave things as they currently are. This is an important takeaway.
Just because the Supreme Court doesn’t strike something down as unconstitutional, that doesn’t mean that it is constitutional. If they aren’t asked, they aren’t supposed to give an opinion.
This is why dicta is important. It tells the inferior courts([xCite item=”8Q2H79PQ” art=”3 § 1″ pos=3]) how to rule in cases in the same areas. The idea being that the inferior courts will “do the right thing”, follow the lead of the Supreme Court.
The Supreme Court has said that there is a right to keep and bear arms. The inferior courts should follow that lead. Unfortunately, too many of the inferior courts would prefer that there was no individual right to self-defense.
Roberts takes another pot shot:
For that reason, one dissent candidly advocates abandoning the demands of strict scrutiny. See post, at 24, 26–28 (opinion of JACKSON, J.) (arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against). An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach.
[xCite item=”QBP3BVS2″ n=”5″ pos=4]
And:
JUSTICE JACKSON contends that race does not play a “determinative role for applicants” to UNC. Post, at 24. But even the principal dissent acknowledges that race—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year. Post, at 33, n. 28 (opinion of SOTOMAYOR, J.); see also Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race explains 1.2% of in state and 5.1% of out of state admissions decisions); 3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state applicants and 105,632 out of state applicants from 2016–2021). The suggestion by the principal dissent that our analysis relies on extra-record materials, see post, at 29–30, n. 25 (opinion of SOTOMAYOR, J.), is simply mistaken.
[xCite item=”QBP3BVS2″ n=”6″ pos=5]
Math says that about 700 in state applicants and 5,400 out of state applicants were determined solely based on their race.
This appears to be the gist of the dissents’ argument, as expressed by Roberts.
The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Although both opinions are thorough and thoughtful in many respects, this Court has long rejected their core thesis. The dissents’ interpretation of the Equal Protection Clause is not new. In Bakke, four Justices would have permitted race-based admissions programs to remedy the effects of societal discrimination. 438 U. S., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). But that minority view was just that—a minority view. Justice Powell, who provided the fifth vote and controlling opinion in Bakke, firmly rejected the notion that societal discrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained. Id., at 307. It cannot “justify a [racial] classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.” Id., at 310.
[xCite item=”QBP3BVS2″ p=”35″ pos=6]
The liberals on the court believe that we have to enforce racial discrimination to combat racial discrimination. It reminds me of the often quoted line from Vietnam, “We had to destroy the village in order to save it.”
The dissents here do not acknowledge any of this. They fail to cite Hunt. They fail to cite Croson. They fail to mention that the entirety of their analysis of the Equal Protection Clause—the statistics, the cases, the history—has been considered and rejected before. There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (JUSTICE JACKSON’s opinion ignores Justice Powell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,” post, at 14 (opinion of SOTOMAYOR, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling—they are defining statements of law. We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.
[xCite item=”QBP3BVS2″ p=”36″ pos=9]
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent.
That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. Post, at 5 (opinion of JACKSON, J.). Indeed he did:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
[xCite item=”QBP3BVS2″ p=”38-39″ pos=10]
For the best fun in reading this opinion, just look at the footnotes. That is where they take shots at each other. There is also a nod from Thomas back to the Bruen opinion.
[xCiteBib]
It has been a busy week in the courts. Multiple cases heard before circuit courts. Supreme Court Opinions issued. Busy busy busy.
Hagar has been a bit busy, but I’ll see where her next article is.
We just learned about the State of Massachusetts deciding to make the state a “sensitive place”.
The other week, somebody asked for a review on some interesting caliber of ammunition. I was hoping J.Kb. was going to step up to the plate and write about it. I just don’t have any inclination to purchase a firearm in that caliber just to write a review about it.
Do you have any recommended sites to monitor for Second Amendment related legal or legislative events?
Does anybody want to hear about processing squirrels? I’m learning, slowly, how to flesh a squirrel hide. It is an interesting process that I’ve failed at four or five times now. Once I get past the fleshing part, I’ll be moving on to the process of tanning the hide.
Government over stepping its bounds has been of interest to me for many years. I take notice when something comes past that is especially egregious. We talk about how long we’ve been fighting for our rights, this is the story of a couple that has been fighting the EPA since 2004.
Some of this is from memory, some is prompted by some of the cited sources in this case.
In 2004, the Sacketts purchased a 1/2 acre of land near Priest Lake in Idaho. This was their dream property, they were going to build their dream home there. Thier property was set back from the lake, with a road between them and the lake.
They got all the required permits and started construction. Part of that was site preparation. This included flinging in some areas that got boggy when it rained. There was no running water from their property to the lake. There was no standing water on their property.
They got big puddles when it rained.
Along came the EPA, who told them that they needed to get a permit from the EPA because they were erasing a federally protected wetland[xCite item=”FJZBX26N” pos=0]. Since they had not gotten a permit before starting the site preparation, the EPA found them in violation.
They were told to put the property back the way it was. If they did not, then they would be fined something like $10,000 per day. When they attempted to get a hearing to challenge the ruling, they were told “yes, but if you are found in violation, you will be held liable for the $10,000 per day fine.”
In other words, to challenge the ruling, the Sacketts would need to be prepared to pay all the outstanding fines.
They decided to fight this. The Pacific Legal Foundation took up their case.
Earlier this week, the Supreme Court found in their favor.
More coming tomorrow now that I have a better idea of why my citation engine is/was failing.
Meanwhile, feel free to read the article that irritated me enough to start another of my short articles on legal stuff:
Cam Edwards covered this Monday or Tuesday of this week. The Gun Owners Action League of Massachusetts is working on an analysis of the bill. I’ve not read it, I don’t want to read it.
If you live in Massachusetts, if you travel through Massachusetts, you need to be aware of the proposed law. Once it hits the courts, I’ll look at the cases.
According to my sources, “Dude” is non-gendered, so according to my sources this is not a sexist rant.
I’m an old fart. I do “dude stuff”. I’m no longer shocked when other people can do the same things I can do, but I do have certain expectations, and I’m continuously let down.
“Dude Stuff” is when the boss comes over to you and asks “Can you open this?” and shoves a taped up package at you. You are the dude, so you flick your wrist and a 3.49in blade pops open for you to cut the tape. The boss looks in shock at the “huge knife” and tries to figure out where it came from, so fast.
“Dude Stuff” is your daughter coming to you with a necklace, hopelessly tangled and twisted, knowing that the dude in her life will just fix it. And you do.
“Dude Stuff” is the dishwasher that is getting water flowing back into it from the sink. Knowing that there should be a check valve or something else to keep that from happening. Seeing the water flow into the dishwasher sump when a pot is emptied into the sink, but not when water is just running.
Oh, the discharge hose needs a blight ABOVE the outlet to keep the bad water from flowing downhill into the dishwasher.
“Dude Stuff” is going out to do a safety inspection on the roof rack that your child just installed and instantly seeing that the cross bolts aren’t tightened, looking for why they came from the factory like that, and knowing that the rack needs to be adjusted for size and knowing how to do that.
“Dude Stuff” means you get handed the Fitbit to change the band because they “couldn’t figure out how”.
All of these and 1000s more are “dude stuff”. It is that ability to look at something and know what should be done next. Or to know how to figure it out.
I was speaking with Hagar, and we were talking about the rape statistics in this country. This is something we’ve talked about before.
As I see it, there are three or four different types of rapists out there. The first is the “accidental” rapist. These are the situations where a man and a woman are interacting, and the situation is such that she only decides it was rape the next day. Those situations where she is a little too drunk to consent. It is the situation where she thought she was saying “no” and he didn’t hear “no” but “I’m not on any birth control.” He takes out his condom and thinks it is ok to proceed, while she doesn’t actually say anything, he should have just known.
Hagar inserts the “Yesterday it was ok, today it is rape” situation. Those situations where one of the two had a birthday and turned 18. They do the same thing after his birthday as they were doing before and suddenly, he’s guilty of statutory rape.
The next situation is what I call “One and done.” It is rape. The rapist should be caught and, when found guilty, properly punished. This is a horrific crime and should be treated as such. The difference is that after that one time, the rapist never rapes again. One rapist, one victim.
The final group is what I call “serial rapists”. These are the monsters that have raped somebody, decided they liked it and then rape more. One rapist, multiple victims.
It is my unfounded belief that these serial rapists are what account for the majority of victims.
It is no less horrific if a rapist only has one victim one time, or one victim multiple times, it is a crime for which proper punishment should be given.
These are the monsters that haunt people’s nightmares.
In a bar, a woman is speaking with her friends. A man walks up and quietly asks if he can buy her a drink. She looks him up and down and tells him to get lost. He leaves, rejected.
Shortly after, another man walks up. He’s carrying a drink for her. He hands it to her and talks her up. He doesn’t really take her simple brush-offs. She has a short relationship with him. Maybe as short as the one night.
She gets bitter and posts to social media about how all men are just creeps. How all they are interested in is her body, and she’s never found a man who wasn’t shallow and crass.
She’ll never find a good dude because it is the man who takes “no” for an answer and leaves that is much more likely to be the good man she is looking for rather than the one that held his ground.
The men and women of today are not going through the same dance as 50 years ago. What they are looking for is different from their parents. YOLO is something that happened in the past, but it was the unusual, not a life philosophy.
We aren’t bringing up our children to be able to do “Dude Stuff”. We are lucky if they can tie their own shoes. Not a joke. My grandson is likely to never have to tie his shoes. Even the shoes he has with laces are really Velcro.
Somewhere our society lost something small yet important. How to do “Dude Stuff”.
B.L.U.F. What was supposed to be a short article regarding why we see “self-defense” in so many challenges turned into a 5000-word article covering the opening statements of the NFA hearings in 1934 plus random musings on yelling fire and other historical legal stuff.
If you get anything out of this, please at least click the like button. I’m having trouble justifying to myself the effort I’m putting into these articles.
I find myself increasingly troubled that so many cases rely on self-defense, or being part of an unorganized militia, or whatever, as a justification for the right to keep and bear arms. Just as the right to free speech doesn’t (or shouldn’t, anyway) depend on what you’re intending to be talking about, the right to bear arms shouldn’t depend on to what purpose you intend, so long as it’s lawful.
[xCite item=”82FZR7UX” pos=0]
Boris, you are correct. I agree that it is extremely irritating to hear, over and over again, that our rights are dependent on “self-defense” or being a member of the militia or “sporting purposes” and on and on and on.
This is a stepping stone. It took us a long time to get back to this level of Second Amendment protected rights.
Consider the testimony in Congress over the National Firearms Act. Read More
According to one of the lawyers that speaks on Second Amendment rights, the policy of the courts on accepting amicus curiae from anybody is a rather recent policy change with the courts. It used to be that you had to show real reasons to be considered a friend of the court.
Of the hundreds of pages submitted to the Supreme Court in [xCite item=”U9EQ7W4I” pos=0] most are from amicus curiae submissions. In appeals, it is the same. There are the actual pleadings by the parties, and then there are all the amicus curia submissions.
He is just one guy. He doesn’t belong to any group. His claim to fame is that he has written a number of books advocating for infringing on the Second Amendment and calling anybody and everybody who thinks that the right to “keep and bear arms” gives an individual the right to keep and bear arms an idiot or worse.
It is very uncommon to see a person or entity submit a motion for leave to file an amicus brief and then to have the court reject it. When this, ORDER re: Motion for leave to file amicus brief. John Cutonilli’s motion to file an amicus brief is DENIED. [74] showed up in Celeb Barnett v. Kwame Raoul I needed to find out why.
The first question to ask is, “Who is John Cutonilli?” A quick Google search turns up “Cutonilli v. State of Maryland”. This is a reference to a case from 2015. Read More
Prior to the Bruen opinion, the Fifth Circuit Court of Appeals heard the case of United States V. Rahimi.
On June 8, 2022, just a few weeks before the Bruen opinion, the Circuit court affirmed Mr. Rahimi’s convection.
A federal grand jury indicted Rahimi for possession of firearms in violation of sections 922(g)(8) and 924(a)(2).1 Later, Rahimi pleaded guilty. At sentencing, the presentence investigation report (“PSR”) detailed Rahimi’s lengthy criminal history. Relevant to this appeal are the state charges that were pending against him for offenses that occurred from December 2019 to November 2020. Three pending state charges resulted from Rahimi’s use of a firearm in the physical assault of his girlfriend in December 2019,2 and another state charge arose from an aggravated assault with a deadly weapon of a different woman in November 2020. Rahimi objected to the PSR, arguing that the pending charges described relevant conduct to the instant offense such that the sentence for the instant federal offense should be ordered to run concurrently to the state sentences. The district court overruled the objection, adopted the PSR, and ordered the federal sentence to run consecutively to the pending charges because they were not relevant conduct. Rahimi appeals, arguing that the district court clearly erred by concluding the pending charges were not relevant conduct.
1) Rahimi moved to dismiss the indictment on the ground that section 922(g)(8) on its face violates the Second Amendment and the district court denied the motion. Rahimi appeals this decision but acknowledges that it is foreclosed by our finding precedent. United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), cert. denied, 141 S. Ct. 1397 (2021).
[xCite item=”U9EQ7W4I” p=”2″ pos=0]
Briefly, Rahimi was a bad dude, doing bad things. When he was arrested, he had a firearm. He had not been convicted of a crime. Along with all the state level charges brought against him, he was also charged as a prohibited person in possession of a firearm under §922(g)(8) and §924(a)(2).
The Circuit court had already ruled in 2020 on the exact question.
We again confront a Second Amendment challenge to a federal law prohibiting individuals subject to certain domestic violence protective orders from possessing firearms or ammunition for any purpose. 18 U.S.C. § 922(g)(8). Appellant Eric McGinnis, convicted by a jury of violating § 922(g)(8), claims the statute is a facially unconstitutional restriction on his right to keep and bear arms. This court rejected a virtually identical challenge two decades ago in Judge Garwood’s landmark decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). Much has changed in Second Amendment jurisprudence since then, and so we consider whether § 922(g)(8) still passes muster under our contemporary framework. It does.
Separately, McGinnis argues his conviction should be vacated because his protective order does not track the requirements of § 922(g)(8). He also asserts the district court abused its discretion by imposing a written special condition of supervised release not orally pronounced at sentencing. We affirm the conviction but remand for the limited purpose of conforming McGinnis’s written judgment to the district court’s oral pronouncement.
[xCite item=”U8W2EACS” p=”750″ pos=1]
Because of this earlier case, Rahimi’s case wasn’t a foregone conclusion.
There are times when entering the LGS is a danger to your wallet. This happened to me.
I need reloading supplies, LGS has them, Blue-Haired Faerie gave me a gift certificate to LGS.
As I was going to LGS, I was considering if I needed anything. I decided that what I wanted to start looking for was something in 7.62×51 NATO or 30-06. I have one rifle in each of those. Two is one, one is none.
When I walk in, there on the wall is an older rifle. Looks to be from around the early ’50s. And it is in “.308”. I.e. 7.62×51. It looks very nice.
Turns out it is a CETME Sporter. Now, these rifles are not original. They were built on American made receivers from parts kits brought in from overseas. Regardless, it looks nice. It looks like sort of like an H&K G3A3. The front hand guard is different. The selector switch is the same. The magazine release is different, the rear sight is different.
But it has the same charging handle, and it still has the famous MP5 slap to drop the bolt carrier and bolt.
There is something really fun about that “slap”.
It followed me home… Along with 125 8 mm Mauser shell casings, ready for boxer primers. Oh, and some 156gr 0.357 bullets.
I did a test firing. A few things.
It is freaking loud. With ear protection on, it still made my ears ring. It is a double ear pro sort of gun.
The rifle sights don’t work well for me. I need to put a little white spot on the front post. I just can’t pick up the dark post inside the dark ring across the dark 100yard notched rear sight. It all just blended. And still, it hit target with ever press of the trigger.
It is extremely loud.
It was a boat load of fun to shoot. The felt recoil wasn’t bad. I could double tap my target without too much problem.
It is louder than expected.
It THROWS brass. The brass landed “over there” about 30 ft from where I was standing. I’ll have to go back with the metal detector to recover all the brass. It also had a wide spread.
What firearm(s) did you spot in a gun store or show that followed you home. Even though you were not intending on buying?
The last couple of case articles felt a little bit unbalanced to me. More of their words and less of mine. Do you prefer the “mostly their words” or do you prefer more analysis by me?
