Chad Oldfather and I are organizing a conference on criminal appeals at Marquette on June 15 and 16. I am very excited about the line-up speakers, which includes many leading criminal law and appellate process scholars from around the nation, as well as several state supreme court justices and other appellate judges. The full schedule, including links for registration, can be found here.
I have not yet had a chance to blog on Judge Sarah Evans Barker’s intriguing Hallows lecture, but I have always been a bit uneasy about judges advocating abandonment of the traditional tools of the trade when they lead to a result that does not “make sense” or is “unworkable.” I don’t say that it can never be done (as Justice Scalia has said, “I, too, am a sinner”), but it is a principle with no readily defined stopping point.
So what, you may ask, does this have to do with Attorney General Van Hollen’s Advisory Memorandum stating that there is a constitutional right to openly carry firearms? Well, there is a history. In 1998, the voters amended the Wisconsin Constitution to create an very broad right to “keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” This is, to put it mildly, in tension with Wisconsin’s extraordinarily broad prohibition of concealed carry. There are virtually no exceptions, and there is no provision for the issuance of permits.
When first faced with this conflict, the Wisconsin Supreme Court observed that it was “anomalous.” One might have expected that the anomaly would have been eliminated by declaring the statute to be unconstitutional in its overbreadth and placing the onus on the legislature to draft a more carefully tailored law. But the court, apparently concerned about unlimited concealed carry, did not do so.
Rather, it decided to proceed on a case-by-case basis, deciding when the need for security was compelling enough to result in constitutional protection for concealed carry. Briefly (and at the risk of some oversimplification), you can conceal your weapon if you run a store in a high-crime area, but not if you transport money to the bank in a small town and not if you simply live and travel in a high crime area.
In so holding, the court emphasized the particular problems associated with concealment and noted that a gun owner has other options.
Apparently the news editors at the Los Angeles Times read the Marquette Law Review. That’s at least one possible conclusion one could draw from the juxtaposition of two recently published items.
Dean Kearney is in a unique place to analyze the relationship between the Ninth Circuit and the U.S. Supreme Court, having clerked for judges on both courts. Introducing Ninth Circuit Judge Diarmuid O’Scannlain’s Hallows Lecture one year ago, Dean Kearney noted,
Over the past couple of decades, Judge O’Scannlain has emerged as a leader on the Ninth Circuit. This includes the court’s most important work, its cases, where Judge O’Scannlain plays an unusually important role not only in his own docket but also in the court’s en-banc process. An O’Scannlain dissent from denial of en-banc rehearing frequently gets some attention across the country — in Washington, D.C.
Lo and behold, this past Sunday the Los Angeles Times carried a story highlighting how conservatives on the Ninth Circuit use dissents from denial of en-banc rehearing to send “a signal flare to the U.S. Supreme Court.” Carol Williams’ report gives particular attention to Judge O’Scannlain: