Circuit Court Ruling Affirms FAIR Decision

A valiant effort by Yale Law School to challenge the Solomon Amendment once again fails in the federal courts. The 2nd Circuit of the Court of Appeals affirmed the jurisprudence laid out in the Rumsfeld v. FAIR decision handed down by the USSC in 2006. Circuit Judge Pooler wrote the opinion for the case which can be found here.

The court rejected the law school's argument saying that its academic freedom was violated by a government policy which would rescind federal funding of the law school if it did not give military recruiters the same access as other job recruiters.

Read more about the case here.

Government Collection of Traveler Data a Violation of the 4th Amendment?

An article published in the Washington Post today reveals that the Department of Homeland Security has been collecting more data on travelers than previously thought. Through the use of something called the Automated Targeting System, the data on travelers has been collected since the mid 1990s to "assess the security threat posed by all passengers entering the U.S."

However, recent dossiers obtained from the Department of Homeland Security's ATS suggest that the information gathered goes above and beyond what is required to check for a "security risk" as the government has data on "the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried."

Apparently, those critical of the system say that information could be used to make correlations and create relationships that may not actually be valid. The Washington Post reports:

"Edward Hasbrouck, a civil liberties activist who was a travel agent for more than 15 years, said that his file contained coding that reflected his plan to fly with another individual. In fact, Hasbrouck wound up not flying with that person, but the record, which can be linked to the other passenger's name, remained in the system. "The Automated Targeting System," Hasbrouck alleged, "is the largest system of government dossiers of individual Americans' personal activities that the government has ever created."

He said that travel records are among the most potentially invasive of records because they can suggest links: They show who a traveler sat next to, where they stayed, when they left. "It's that lifetime log of everywhere you go that can be correlated with other people's movements that's most dangerous," he said. "If you sat next to someone once, that's a coincidence. If you sat next to them twice, that's a relationship.'"

If the ATS does ever reach a court dispute over whether or not it violates the Privacy Act of 1974, which prohibits, among other things "gathering of data related to Americans' exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate," the question could ultimately come down to whether these searches and seizures are reasonable under the 4th Amendment's prohibition of unreasonable searches and seizures.

New Jersey Supreme Court Punts Questions about Beginning of Life

On September 12th, New Jersey's high court unanimously ruled that a "doctor had 'no legal duty' to tell her that her six-to-eight-week-old embryo was “a complete, separate, unique and irreplaceable human being.'"

According to the NY Times article, the case has some bizarre beginnings as a malpractice suit. They report:

"The decision handed down today reversed a unanimous ruling by a three-judge appeals panel. The case began in 1998, when Rosa Acuna of Bound Brook, a mother of two, sued Sheldon C. Turkish, her gynecologist in Perth Amboy, over an incomplete abortion, and charged that he had not given her sufficient information before she allowed him to perform the abortion.

Mrs. Acuna, now 40, said in court proceedings that when she was in the early stages of pregnancy in 1996, she had asked Dr. Turkish “if it was the baby in there” and that Dr. Turkish had replied, “Don’t be stupid, it’s only blood.”

According to court papers, Dr. Turkish denied having made such a statement, adding that he probably told her that a “seven-week pregnancy is not a living human being,” but rather that it “is just tissue at this time.”

Mrs. Acuna had an abortion, and several weeks later went to the hospital after experiencing bleeding. She said that only after a nurse told her that “the doctor had left parts of the baby inside” did she realize it “was a baby and not just blood” inside her.

In court papers she said that she would not have had the abortion if she had received proper answers to her questions, and that she went on to suffer post-traumatic stress because of the procedure."

Apparently, Ms. Acuna wants the decision appealed to the USSC, so it is a possibility that we could see it go to the court for the spring term next year. The NJ high court did not ultimately rule on when life begins instead saying that, "There is not even remotely a consensus among New Jersey’s medical community or citizenry that the plaintiff’s assertions are medical facts, as opposed to firmly held moral, philosophical and religious beliefs, to support the establishment of the duty she would impose on all physicians."

Five of the court's seven justices weighed in on the case with the two others recusing themselves. No explanation was given for their recusal.

USSC Could Overturn D.C. Gun Ban

The U.S. Court of Appeals for DC recently ruled unconstitutional a D.C. law which banned the ownership of hand guns (with the exception of active and retired law enforcement officials). It joins only one other federal appeals court--one in New Orleans--to do so purely on the grounds that the law violates the Second Amendment's guarantee of the right to bear arms.

The USSC has ruled only once on the Second Amendment in 1939 on the case of U.S. v. Miller. They upheld a gun control by a vote of 8-1. According to FindLaw, in that particular case, "Arkansas bootlegger Jack Miller was indicted for violating the National Firearms Act of 1934 by carrying a sawed-off shotgun across state lines. Miller argued that the case against him should be dismissed because the Second Amendment protected his right to own and carry the weapon."

The Court also seemed to affirm the collective right of the people--not persons--to bear arms. The Court wrote:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158."

The people pushing for the case to go to the USSC are fielding some criticism for appealing the DC Circuit Court of Appeals decision. With a slightly more conservative court, owed most in part to the nominations of President Bush and a undeniable texualist sitting on the bench as well (Justice Scalia), the prospects for upholding D.C.'s gun ban do not look very promising.

Election of Judges & Sentencing Guidelines Also to Come before Court

Election of judges:

"The Constitution of New York provides for the election of judges for its trial courts of general jurisdiction. New York’s Election Law authorizes the selection of nominees for judicial office by political parties, through conventions whose delegates are directly elected by party members. The question presented is whether this system is facially constitutional under the First and Fourteenth Amendments to the United States Constitution."

Sentencing Guidelines:

"Whether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a sentence outside the range recommended by the United States Sentencing Guidelines with a finding of extraordinary circumstances."

Hawaiian "Superferry" Worry Environmentalists, Judges

A ferry similar to the Staten Island Ferry in NY is creating quite a tussle for islanders. Environmentalists argue that the ferry poses a threat to protected marine life in the surrounding waters. Businesses argue that the fuss over the operation of the ferry is detrimental to Hawaii's economy and will deter future business owners from investing in island ventures.

Read more about the ferry disputes at starbulletin.com and follow the controversy. Here's an article to start.

Running for Office & Use of Guns to Come before High Court

Two very interesting cases will come before the USSC when it starts its term in October:

The first deals with candidates running for political office posing the question:

"Does the First Amendment prohibit a State from allowing a person running for public office to disclose the name of the party he or she personally prefers on the ballot?"

The name of the case is Washington v. Washington Grange.

The second deals with categorizing the use of guns and poses the following question:

"Whether receiving a firearm in exchange for controlled substances constitutes use of the firearm during and in relation to a drug trafficking crime within the
meaning of 18 U.S.C. 924(c)(1)."

The name of the case is Watson v. US.

You can find more on these cases at this website. Take a look.