This has been a good week for the U. S. Constitution and good guys.
On the Fifth Amendment front, as of yesterday, colleges and universities conducting Title IX proceedings are required to use a First Amendment-compliant definition of sexual harassment and to guarantee basic due process protections for the accused (such as a presumption of innocence, the right to an advisor, and the right to question one’s accuser). Accusers and victims, too, will benefit from newly required measures that will offer them support — without punishing anyone accused before they are actually found to have committed the offense. The new regulations, passed in strict compliance with the Administrative Procedures Act, overturned the “suggestions” in the infamous “dear colleague” letter issued by the Department of Education during the Obama administration. That letter suggested that institutions requiring the above enumerated protections could be penalized by the loss of public funds. Due process, which includes a requirement that an accuser prove their case, not that accused prove their innocense; having counsel that is familiar with the adjudication process; and the ability to confront the accuser is the cornerstone of liberty. A tribunal that denies this right is not worthy of respect and amounts to a kangaroo court.
Two federal courts have denied relief in suits brought to enjoin the enforcement of the new rule. See https://www.thefire.org/legal/fire-fights-back-against-lawsuits-challenging-2020-title-ix-regulations/
It is still possible that a new President and his/her administration could reverse this, though it could be a lengthy process.
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On the Second Amendment front, in the a case challenging the California statute banning possession of high-capacity magazines for firearms, the U.S. Ninth Circuit Court of Appeals upheld a district court’s ruling that the law was unconstitutional.
In Duncan vs. Becerra, Case No 19-55376 (August 14, 2020) Judge Kenneth Lee, writing on behalf of himself and Judge Consuelo Callahan gave the reasons behind their ruling.
“Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment,” said the majority ruling in . “Even well-intentioned laws must pass constitutional muster. They passed the law in the wake of heart-wrenching and highly publicized mass shootings, but it isn’t enough to justify a law that is so sweeping that half of all magazines in America are now unlawful to own in California.”
“Ammunition is typically used for lawful purposes, and are not ‘unusual arms’ that would fall outside the scope of the Second Amendment.”
As important as this ruling is, it only applies to laws prohibiting the possession of all magazines that hold more than ten rounds. The court concluded by stating “[w]e also want to make clear that our decision today does not address issues not before us. We do not opine on bans on so-called “assault weapons,” nor do we speculate about the legitimacy of bans on magazines holding far larger quantities of ammunition.”
This leaves open the possibility that a ban on a rifle magazine that holds, say, 20 or more rounds could be constitutional, at least in the Ninth Circuit. (Western U.S.)
A fly in the ointment is that there was a dissent in this case. Our own Barbara Lynn, Chief District Judge of the Northern District of Texas, sitting by assignment, wrote that this opinion is wrong and is contrary to rulings in other circuits. A dissent and split in the circuits make U. S, Supreme Court review more likely, though not certain. The Supreme have been reluctant to take any cases regarding gun control since McDonald vs. Chicago in 2010. But who knows? Many believe the Justices are inclined to let hink the issue should be handled by individual states and the circuits.
My own opinion is that a nationwide ban on possession of large capacity magazines (or for that matter, semi-automatic rifles) would be unenforceable, would potentially criminalize half the population of the United States, and do nothing to take those firearms and accessories out of the hands of those who would use them unlawfully.
The full opinion in Duncan et al vs. Becerra is available at https://law.justia.com/cases/federal/appellate-courts/ca9/19-55376/19-55376-2020-08-14.html
