The Cato Institute

The Empty Case for “High-Capacity” Magazine Restrictions

Since the early 1990s, several states have passed restrictions on firearm magazines as a purported public safety measure, but there is little evidence that these restrictions have any positive effects…

To date, the Supreme Court has repeatedly refused to hear cases surrounding these “high-capacity” magazine bans.

This has led to a fractured and unpredictable state of the law. These laws, as well as the “assault weapon” bans they tend to come packaged with, are abridgments of the natural right to self-defense. Moreover, they fail to provide sufficient benefit to justify their inherent costs.

There are three main problems with these bans.

First, the term “high-capacity” is used by legislatures to describe standard, common equipment rather than magazines that stretch a weapon’s capacity beyond its intended design.

Second, discussions of the issue are replete with fundamental misconceptions about firearm magazines and their place under the Second Amendment. In fact, some courts have held that magazines have no constitutional protection at all, contravening precedent indicating that the right to keep and bear arms protects all bearable arms in common use, including their magazines and ammunition, regardless of the arms in existence at the time of the Founding. Magazines are not mere accessories, but essential components of modern firearms.

Third, there is little evidence that high-capacity magazine restrictions have any positive effects on public safety. To support these laws, states point to horrific crimes involving large-capacity magazines. But the connection between the crime and the magazine is conjectural at best, while the prohibitions against such magazines have disrupted the lives of many otherwise law-abiding gun owners — and all without any evidence of improvements in public safety. In some courts, it seems that merely uttering the phrase “gun violence” suffices to justify any exercise of state power.

These policies are ineffective, dangerous, and unconstitutional.

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Are You Being Censored Online?

Instead of continuing to allow EU regulators to set the rules of free expression across the globe, Silicon Valley tech companies should fight on behalf of their users to contain government overreach…

In the wake of the 2015 terror attacks across Europe, Facebook, Microsoft, Twitter, and YouTube signed an agreement with the European Commission to “prohibit the promotion of incitement to violence and hateful conduct.”

In other words, European regulators are using threats of harsher laws and potential liability to pressure tech companies into controlling and suppressing “extreme speech” on social media websites. This regulatory effort runs the risk of censorship creep, whereby protected speech, including political criticism and newsworthy content, could be removed from online platforms on a global scale.

In theory such an agreement does not seem to have egregious effects on society, however in reality, the line between censorship of violence-provoking hate speech and censorship creep is very slim.

However, tech companies have four possible strategies they can use to push back against government overreach and ensure that this vague line is not crossed…

1. Definitional Clarity: Clear and universal definitions of hate speech and violent extremist material, developed with assistance from human rights groups and academics, is essential for containing censorship creep. Guidelines for these policies should also provide specific examples of content deserving this designation.

2. Robust Accountability: Rigorous accountability is also necessary to check government efforts to censor disfavored view points and dissent. Removal requests by state employees and the NGOs that represent them must be subject to rigorous review. A wise approach for tech companies is to subject government requests to several layers of review by their most senior staff to ensure governments are not merely silencing political dissent.

3. Detailed Transparency: Companies should be required to provide detailed reports on governmental efforts to censor hate speech and extremist material. Transparency reports enable public conversations about censorship, and although transparency alone cannot solve the problem of censorship creep, it can help to contain it.

4. Ombudsmen Oversight: Ombudsmen, or public editors, should work to protect press freedom and to promote high-quality journalism. One concern of censorship creep is its potential to suppress newsworthy content. To address this concern, companies should consider hiring or consulting ombudsmen, whose life’s work is the news-gathering process. They would help to identify requests that would remove material that is important for public debate and knowledge.

By pressuring Silicon Valley to alter private speech policies and practices, EU regulators have effectively set the rules for free expression across the globe. Companies can and should adopt prophylactic protections designed to contain government overreach and censorship creep for the good of free expression.

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Good News for Gun Rights

The District of Columbia has suffered another defeat in its decades-long effort to restrict gun rights….

Yesterday, the D.C. Circuit Court of Appeals struck down the District’s “good reason” requirement, which obliges individuals to demonstrate a special need before being allowed to carry a gun.

The “good reason,” as defined by the D.C. government, is incredibly narrow. Simply being concerned about crime, or living/working in a crime-ridden area of the city does not suffice. Effectively the only people capable of meeting the D.C. test are those working in extraordinarily high-risk occupations or people who have received substantive, specific threats against them.

Two different District Court judges ruled against the “good reason” requirement (one ruling was set aside due to a bit of a procedural morass), and those two cases were combined on appeal to the D.C. Circuit. In a 2-1 decision, a panel of the Court of Appeals struck the “good reason” rule down as unconstitutional.

However, the District can appeal this ruling back to the D.C. Circuit in order to have it reheard en banc. The case could also ultimately end up in front of the United States Supreme Court which, since its rulings in Heller (2008) and McDonald (2010), hasn’t seen fit to offer further guidance to lower courts on whether the 2nd Amendment applies outside the home.

With various federal courts coming to different conclusions on that question, this case represents a great opportunity to finally get a definitive answer from the high court.

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When Criminal Justice Policy Isn’t Constitutional…

Massive deportations, marijuana raids, property seizures, and militarized policing will jolt the foundations of our constitutional republic…

President Trump says crime is a serious problem and that he’s going to do something about it.

To begin, it is very unfortunate that President Trump has chosen to elevate the crime problem in the way that he has because it reinforces the mistaken idea that the federal government “oversees” our criminal justice system. In fact, the Constitution says very little about federal criminal jurisdiction. 

According to the constitutional text, piracy, treason, and counterfeiting are supposed to be the federal government’s concern, but not much else. The common law crimes of murder, rape, assault, and theft are to be handled by state and local governments.

Of course, as the federal government grew in size and scope, it came to involve itself in a host of local matters — from schools to road maintenance to crime fighting. Although Trump has spoken of “draining the swamp” and slashing the federal budget, he not only seems uninterested in reducing the federal role in crime-fighting, but is also clearly moving to expand that role.

President Trump may have good intentions, but his gut instincts in the area of criminal justice are terribly misguided. Criminal justice reformers will likely win some policy battles — especially at the state and local level, but the road ahead looks treacherous indeed.

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Commercial Speech is Speech

Commercial speech has become one of the most litigated and controversial areas of First Amendment protection…

Over the last 40 years, the Supreme Court has extended an ever-increasing level of First Amendment protection to commercial speech. 

It is difficult to find a Supreme Court decision upholding governmental suppression of truthful commercial speech in the last 25 years. Yet the Court has continued to provide less protection for commercial speech than is given to traditionally protected categories such as political or artistic expression. 

Commercial speech has become one of the most litigated and controversial areas of First Amendment protection. Yet the question of protecting such speech should not be in doubt.

The controversy arises from fundamental misunderstandings of the ways in which commercial speech furthers the values of the First Amendment’s guarantee of free expression.

The scholarly community has — with only rare exception — been either grudging or downright hostile to extending constitutional protection to commercial advertising. Most — although not all — scholars believe that protecting commercial speech trivializes what the First Amendment is truly about, reintroduces the threat to the smooth functioning of the regulatory system first presented by the specious and harmful pre-New Deal doctrine of economic substantive due process, and risks diluting the strong protection traditionally given to more valuable areas of expression. 

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Protecting Your Constitutional Rights in A Police Encounter

The Constitution is supposed to be the “law of the land,” yet people can get arrested for invoking their legal rights…

Most people don’t know how to handle themselves during a police encounter. They know they have constitutional rights, but they also know that they can get into trouble by disobeying an officer. Some officers can even react angrily when someone invokes their rights. Not knowing where the lines are drawn, the vast majority of people capitulate to whatever the police want from them.

Yet, asserting rights is no guarantee against arrest. Even the most professional officers use tactics to get around constitutional rights, and some officers make false arrests and conduct illegal searches.

Our rights can be vindicated only in court, meaning that when criminal charges are dropped, any associated constitutional violations will typically never be addressed by judges or juries.

Individuals may file civil lawsuits when there are physical injuries or serious property damage. But government lawyers typically settle such lawsuits with money from the treasury, and the officers involved rarely face discipline or other adverse consequences.

If such incidents happen with some frequency — and they do — it exposes a serious flaw in our legal system. 

Just because law enforcement have us at a serious disadvantage does not mean we should let them walk all over us.

The wise course to take during police encounters is to obey all commands, but also politely and calmly decline requests — law enforcement are trained to blur that distinction. 

Our Constitution is incapable of enforcing itself. It is just words on paper unless we calmly but firmly assert our rights. Use them or lose them.

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Our Right to Trial by Jury Is Under Attack. Will SCOTUS Save Us?

The Constitution guarantees our right to a jury trial in “all criminal prosecutions.” Our commitment to this constitutional safeguard is tested when the government haughtily claims a trial isn’t necessary…

Earlier this week,  the Supreme Court heard oral arguments in Lee v. United States.

The case, which concerns the right to counsel and the right to trial by jury, is a very interesting one.

In 1982, Jae Lee came to the United States from South Korea as a child. Now 48 years old, Lee has lived in the U.S. as a lawful permanent resident for decades.  In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported as a result. 

As it turned out, Lee received bad legal advice. His conviction made Lee subject to mandatory removal, meaning that after serving several years in prison, he would eventually be deported to South Korea and essentially banished from the U.S.

When Lee learned of this mistake, he asked the court to vacate his plea, arguing that his counsel’s assistance was ineffective and he only pled guilty because of the recommendation from his lawyer. 

He wants to take his case before a jury. The district court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.

The U.S. Court of Appeals for the Sixth Circuit agreed that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. 

Federal prosecutors say there’s no need for a trial because the evidence against Lee is strong, but our constitutional right to trial by jury doesn’t depend on the government’s assessment of its own case.

The U.S. Court of Appeals for the Sixth Circuit reasoned that that the only chance Lee had was acquittal by “jury nullification,” which is the doctrine that says a jury can return a “not guilty” verdict even after it has concluded that the person on trial violated the law. Why order a new trial based upon an idea so irrational and antiquated, the Court reasoned.

Well, for one thing, there’s nothing wrong with jury nullification. The Framers of our Constitution believed that jury nullification was part and parcel of what a jury trial was all about.

The Supreme Court itself has noted that the jury is supposed to be the “conscience of the community” and should check the government when necessary to protect individuals from injustice or oppression. The jury cannot perform that function if it is told that it must always apply the law mechanically, without regard to justice.

Lee is now pressing the matter at the Supreme Court, which heard his argument earlier this week.

The Cato Institute filed a brief in the case regarding the right to and rationality of defendants asking for a jury trial. 

Jae Lee is facing prison time and banishment from the United States. Before that happens, Lee wants to have his day in court. The Constitution is supposed to guarantee his right to trial by jury. We will soon see whether the Supreme Court will come to the defense of that guarantee.

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Police Are Tapping Your Cell Phone — Sort Of.

Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens….

The device, known as a stingray, is being used in at least 23 states and the District of Columbia, and can track the physical locations of phones and possibly even intercept the content of their communications.

Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.

In addition, police agencies have gone to incredible lengths to keep information about stingray use from defense attorneys, judges, and the public. Through the use of extensive nondisclosure agreements, the federal government prevents state and local law enforcement from disclosing even the most elementary details of stingray capability and use. That information embargo even applies to criminal trials, and allows the federal government to order evidence withheld or entire cases dropped to protect the secrecy of the surveillance device.

The controversy around police stingray surveillance challenges our antiquated Fourth Amendment jurisprudence, undermines our cherished principles of federalism and separation of powers, exposes a lack of accountability and transparency among our law enforcement agencies, and raises serious questions about the security of our individual rights as the government’s technological capability rapidly advances.

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In Memory of Nat Hentoff, Tireless Civil Rights Warrior….

Cato Senior Fellow Nat Hentoff passed away on Saturday evening at age 91. We’re sad he’s gone, even as we celebrate his good life. May he rest in peace….

Nat was a leading authority on the Bill of Rights, and one of the foremost scholars on the First Amendment.

Over the course of his long life, Hentoff authored 37 books and countless newspaper and magazine articles. He is perhaps most well-known for his opinion articles in the Village Voice, where he wrote for 51 years, from 1957 until 2008. Hentoff’s column, Sweet Land of Liberty, was distributed by the United Feature Syndicate from 1992 to 2016. A jazz expert, Hentoff also wrote on music for The Wall Street Journal and Jazz Times.

While his books and articles regularly defended the rights of Americans to think and speak freely, he also explored our freedoms under the rest of the Bill of Rights and the 14th Amendment by showing how Supreme Court and local legislative decisions affect the lives of ordinary Americans. 

Hentoff lectured at many colleges; universities; law schools; and elementary, middle, and high schools and taught courses in journalism and the Constitution at Princeton University and New York University. He served on the board of advisers of the Foundation for Individual Rights in Education (F.I.R.E.) and was on the steering committee of the Reporters’ Committee for the Freedom of the Press.

A native of Boston, he was awarded a Guggenheim Fellowship in education and was a Fulbright Fellow at the Sorbonne in Paris in 1950. He did graduate work at Harvard University, received his BA with highest honors from Northeastern University, and was awarded an honorary doctorate of law from Northeastern in 1985.

Hentoff earned numerous awards and was a widely acknowledged defender of civil liberties. In 1980 he was awarded an American Bar Association Silver Gavel Award for his coverage of the law and criminal justice in his columns. In 1983 the American Library Association awarded him the Imroth Award for Intellectual Freedom. In 1995 he received the National Press Foundation Award for Distinguished Contributions to Journalism, and in 1999 he was a Pulitzer finalist for commentary.  

He joined the Cato staff in 2009 and never stopped researching and writing.

Explore his work at Cato….

Even Sex Offenders Have Constitutional Rights

What are the constitutional issues raised when a government can put someone behind bars simply for making use of social media?

Lester Packingham beat a parking ticket and celebrated on his Facebook page by proclaiming, “God is good! … Praise be to GOD, WOW! Thanks JESUS!”

For this post, he was sentenced to prison — because he was a registered sex offender and a North Carolina statute bans such people from accessing a wide variety of websites.

Though it is meant to prevent communications between sex offenders and minors, the law sweeps so broadly that it conflicts with basic First Amendment principles. It doesn’t even require the state to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any other illicit purpose.

The North Carolina law bans access not just to what people consider to be social-media sites, but also any sites that enable some form of connection between visitors, which would include YouTube, Wikipedia, and even the New York Times. The statute is also vague, in that it covers websites that “permit” minor children to create profiles or pages — and you can’t even find out what a website “permits” without first looking at its terms of service — itself a violation of the statute. Someone subject to this law literally can’t know what he can’t do or say; the police themselves aren’t sure!

The statute also fails constitutional scrutiny because it criminalizes speech based on the identity of the speaker (a state may not burden “a narrow class of disfavored speaker”). The very purpose of the First Amendment is to protect the speech of disfavored minorities—which sex offenders certainly are.

After the state court of appeals overturned Packingham’s conviction — finding the criminal “access” provision unconstitutional — the North Carolina Supreme Court, over vigorous dissent, reversed and reinstated the conviction and sentence.

The Packingham case goes before the Supreme Court next year, and the Cato Institute has filed a legal brief arguing for the Constitutional rights of even the most disfavored minorities. 

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