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A visitor to the peaceful village of Hiram, Maine, might well wonder why a Spanish American War monument overlooks the principal intersection. Only a handful of local residents served in any military capacity during that conflict, while 110 men and boys went from Hiram to fight in the Union army between 1861 and 1865, and 42 of them never returned. Another 27 served during World War I, from that town of something over 1,000 citizens. Yet Hiram has no specific monument to veterans of the Civil War, which is our most memorialized war, or to those of the First World War.

The generation that donned uniforms in 1898 had grown up in the shadow of the Union veterans, who were regarded with an admiration approaching awe during the late 19th century. Through the Grand Army of the Republic, the veterans relentlessly propagated the example of their own selfless and heroic service to their country, and young men inevitably envied the reverence those old soldiers attracted. Not since 1861 had the United States faced a crisis that demanded an effusive patriotic response, and as the century came to a close the population seemed primed for an opportunity to show that the national spirit still flourished.

As in the 2003 invasion of Iraq, the policy decisions that led to the Spanish American War were guided by the political ambitions of expansionist factions within the U.S. government. The popular reaction, meanwhile, was manipulated by exaggerated or perfectly false stories circulated in the American press. In 2003 it was rumored weapons of mass destruction; in 1898 there was the bogus claim that Spanish agents had sunk the USS Maine in Havana harbor. In both cases, that combination led to an unnecessary war that brought disastrous consequences. We can't yet say which of them produced the worse results.

Because of the attenuated condition of the Spanish empire, it was a quick war. Land and naval actions in Cuba and Puerto Rico gave us complete control of those islands within a few weeks. After a short sea battle at Manila, American forces seized the Philippines, and an expedition to Guam took that island without a fight. That led almost immediately to the annexation of Hawaii, because Pearl Harbor suddenly became an important coaling station for U.S. ships on their way to those new possessions in the far Pacific.

This was all very satisfactory to the expansionists, including Teddy Roosevelt, who had been so "bully" on thrashing those belligerent Spaniards. As assistant secretary of the Navy, Roosevelt ought to have known about the notorious design flaw in battleships like the Maine, in which coal bunkers prone to fire lay tight against the powder magazines. He did not mention that defect as a potential explanation for the explosion in Havana.

What we gained from the war with Spain were the islands that made us a threat to the rising power in Asia. On Dec. 7, 1941, Pearl Harbor was the target of the Japanese attack that crippled our Pacific fleet and finally lured us into World War II. Guam fell four days later. The last American troops in the Philippines surrendered five months later.

The attack on Pearl Harbor alone killed more Americans than died from all causes during the Spanish American War, most of whom fell victim to disease. Maine and New Hampshire each raised one volunteer infantry regiment in May of 1898, and both of them idled the summer away in camp on the Chickamauga battlefield, in Georgia. A few dozen in each regiment died there, mainly from poor sanitation, and the rest came home in September, bored stiff.

The most notable casualty among the soldiers from Oxford County was 2nd Lt. Lucian Stacy, from Porter, who had graduated from West Point in 1896. He went to Cuba with the 20th U.S. Infantry, taking part in the campaign for Santiago, but he came down with malaria after the fighting ended. He had just arrived at home on convalescent furlough when he died on Sept. 4, the day before his 29th birthday. His parents buried him in Kezar Falls.

A second crop of recruits went off to suppress the Philippine "insurrection," after the natives of those islands objected to the Americans simply imposing another imperial regime in place of the Spanish. Alvin Lord, a teenager from Cornish and a former employee of North Conway's Kearsarge House, enlisted for that service on Jan. 29, 1899. The following August he died at his post, defending his country's spanking-new territory against its defiant denizens from a fortified island in Manila Bay called Corregidor. A generation later, thousands of other Americans would find that bastion rather worthlessand more difficult to defend against a better-armed enemy.

William Marvel is a resident of South Conway.

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William Marvel: Wars of the First Amendment - Conway Daily Sun

NASHVILLE, Tenn Two families are tired of feeling like "second-class citizens" in the Smith County public school system due to their beliefs, according to a press release from the American Civil Liberties Union of Tennessee and the ACLU.

According to them, school officials unlawfully promoted religion in public schools, violating the First Amendment.

The lawsuit alleges that officials directed prayer during mandatory assemblies, distributed and displayed Bibles during classes, posted Bible verses in hallways and broadcast prayers at sporting events.

It also states that coaches participated in prayer with student-athletes and that a cross painted on the wall of an athletic facility violates the separation between church and state.

When I was in the military, I took an oath to support and defend the Constitution, which includes religious freedom, Kelly Butler said in a press release, a father to several children who attend Smith County schools. Its wrong for the public schools to make my family feel like second-class citizens because of our beliefs.

The ACLU and the ACLU of Tennessee posted tweets about the lawsuit, Butler v. Smith County.

The release said Butler and another family involved in the lawsuit are both atheists. They are also seeking a preliminary injunction to stop the practices outlined in the lawsuit.

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Smith County School System sued over first amendment violations, promotion of religion - WBIR.com

Updated: May 25, 2018:

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The First Amendment Battleground: SCOTUS Asked to Review Two Ninth Circuit Decisions on the Constitutionality of the TCPA - JD Supra

Confirmed Judges, Confirmed Fearsis a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties.

In October 2019, Trump Eleventh Circuit judges Kevin Newsom, Elizabeth Branch, and Britt Grant voted to deny full court rehearing and affirmed the denial of a prisoners right to seek damages for violation of his First Amendment right to file a grievance against a prison officer. The case is Carter v. Allen.

Demetruis Carter was a prisoner who alleged he was subject to a sexually inappropriate touch by a prison officer. Carter told the officer he would file a grievance and was then put in segregation. The day after Carter filed the grievance, prison officers, including the officer in question, conducted a shakedown of the dorm in which Carter resided. After one of the officers produced a contraband cellphone, he accused Carter of hiding it and Carter was charged with a violation. Later, the wardeninstructed the officer in question to conduct another shakedown and search of Carters dorm. Carter told the warden he was uncomfortable with that officer due to the past grievance he had filed and was again placed in segregation.

Representing himself, Carter sued for violation of his First Amendment right to complain about the prison officers inappropriate behavior towards him. The claim proceeded to a jury trial. Before the trial began Carter requested appointment of counsel. His request was denied. The jury later returned a verdict against him.

Carter filed a motion for a new trial and was denied. He appealed the denial as well as the jury verdict. A three-judge panel of the Eleventh Circuit granted Carters request for counsel, but affirmed the jury verdict anyway. In particular, the panel ruled that Carter could not seek damages under the Prison Litigation Reform Act (PLRA) because he suffered no physical injury.

Carter petitioned the Eleventh Circuit for an en banc rehearing of the case. A majority of the judges, including all of Trumps judges, denied a rehearing.

Judge Beverly Martin dissented. She explained that in every other circuit, people in prison are allowed to seek damages for violations of their First Amendment rights but not so in the Eleventh Circuit. The physical injury requirement under the PLRA only pertains to claims for mental and emotional injury, she continued.A prisoner does not discard his basic First Amendment rights at the prison gate, but Judges Newson, Branch and Grant instead voted to deny Demetruis Carter the opportunity to pursue justice. Their decision sets a dangerous precedent for incarcerated people in the Eleventh Circuit who suffer mistreatment, abuse or assault, in any form, at the hands of prison officers.

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Trump Judges Vote to Deny Full Court Rehearing and Affirm Denial of Damages for Violation of a Prisoner's First Amendment Rights: Confirmed Judges,...

Joseph Blocher is Lanty L. Smith 67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is Assistant Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. Along with Darrell A.H. Miller of Duke Law School, they filed an amicus brief in support of neither side in New York State Rifle & Pistol Association v. City of New York.

In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldnt be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than theyve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on text, history, and tradition and without consideration of contemporary realities of guns and gun violence. That would be a mistake.

The methodological debate animating this case began 10 years ago in District of Columbia v. Heller, in which the court held that the Second Amendment protects an individual right to keep and bear arms for private purposes like self-defense, and that the rightlike all constitutional rightsis subject to regulation. But, aside from listing some presumptively lawful measures, the court did not identify a doctrinal mechanism to evaluate those regulations (tiers of scrutiny, adequate alternatives, substantial burden, etc.), instead leaving the task to the lower courts.

In more than 1,000 cases since Heller, the doctrinal dust has begun to settle, and the outlines of constitutional rules and standards have become clearer. Of course, no constitutional right is governed by a single doctrinal test; even the canard that fundamental rights get strict scrutinyrepeated often by the petitioners in this caseis simply false. (Free speech claims, to take one obvious example, are governed by a wide range of tests.) But courts have nonetheless converged, with striking unanimity, on a general framework for adjudicating Second Amendment cases. That framework is frequently called the two-step test.

The first step is a threshold inquiry about whether the Second Amendment comes into play at all. As Heller makes clear, theres no scrutiny necessary for bans on possession by felons (with arguable and limited exceptions for as-applied challenges), or dangerous or unusual weapons such as machine guns, or weapons in sensitive places. For those regulations that do raise Second Amendment questions, courts proceed to the second step and apply something like a sliding scale of means-end scrutiny to evaluate the relationship between the state interest served by the regulation and the methods employed to further that interest. The more seriously a regulation interferes with the core interest of self-defense in the home, the more scrutiny it gets.

This framework is so basic as to be archetypalconstitutional rights adjudication frequently involves a threshold inquiry into the rights applicability, followed by some context-specific scrutiny of burden, purpose and tailoring. In the First Amendment context, for example, courts regularly ask whether an activitycampaign contributions, for examplecounts as speech before applying whatever doctrinal test is appropriate.

In short, as some constitutional law scholars have concluded, using the two-part framework means treating the right to keep and bear arms like the fundamental right that it is. The two-part framework, moreover, accommodates both historical analysis and consideration of contemporary costs and benefits; it includes both bright-line rules (prohibitions on laws that go too far) and standards. And the fact that it has been endorsed by every federal court of appeals is a resounding vote of confidence.

And yet the petitioners in this case contend that applying this common methodology converts the Second Amendment into a second-class right. Courts are too lenient with regard to the tailoring analysis, the argument goes, or misconstrue the historical element of the framework. They say the two-part test has been systematically misapplied.

Of course, mistakes are inevitable in any high-volume area of constitutional litigation, and some have undeniably occurred in Second Amendment cases. One court, for example, found that the amendment protected only those arms in existence at the nations foundingnot modern-day weapons like stun gunsa decision overturned by a unanimous Supreme Court. In truth, such mistakes have been relatively rare. Most Second Amendment cases are weak to begin with. This is partly because of Heller itself, which blessed as presumptively lawful various regulations that are often challenged, like felon-in-possession laws. Its also due to the fact that gun politics prevent most stringent regulations from being enacted in the first placethis is not a target-rich environment for gun-rights litigators. When a court errs in upholding an unconstitutional law, however, the typical way to correct the error is through appellate decisions. In this case, by contrast, the Supreme Court is being asked to forgo the typical approach, toss out the consensus methodology and supercharge the Second Amendment with a new set of rules.

The most prominent alternative to the two-part framework is the one articulated by then-judge Brett Kavanaugh in a dissent in the U.S. Court of Appeals for the District of Columbia Circuit: That gun regulations should not be evaluated using any level of scrutiny, but rather by looking to text, history and tradition alone.

Some advocates of this new test hope and expect that it would expand the right to keep and bear arms to some imagined historical ideal, immune from regulation. But that historical image is itself ahistorical: Gun rights and regulations have coexisted for centuries. The laws have changed, because guns and gun violence have changed, but from the very beginning weve had versions of safe-storage requirements, bans on dangerous and unusual weapons, restrictions on public carrying and even outright bans on public carry including in supposed gun havens like Dodge City and Tombstone. Guns are a part of American history, but so, too, is gun regulation. For reference, there are more than 1,500 entries in Dukes Repository of Historical Gun Laws, a searchable, non-comprehensive database of firearms regulations that predate the federal governments first major intervention into the field in 1934. A properly applied historical test should uphold a lot of gun regulation.

The main problem with relying solely on text, history and tradition, however, is that it doesnt provide useful guidance for modern-day regulations that respond to modern-day gun violence. The text alone cant tell you whether a machine gun is an arm or whether convicted felons are among the People the Second Amendment protects. The 27 words of the amendment are silent on many questions, and history and tradition dont speak with one voicethere were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.

Perhaps in some extreme cases (a total ban on public carry, for example), text, history and tradition would provide relatively clear rules. But for most standard forms of modern gun regulationrestrictive licensing schemes for public carry, for example, or prohibitions on high-capacity magazines or on gun possession by people convicted of domestic violenceall of the work would be done by analogical reasoning. Judges would have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago.

How would such a test of judicial analogies work in practice? Is a rocket launcher like a musket, because you can lift it, or is it like a cannon, because its so powerful? How is an AR-15 like a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness? Such questions place a lot of weight on judges own, perhaps unexamined intuitions. In this way, the test of text, history and tradition simply cloaks judicial discretion in an air of objectivity.

In practice, the supposedly historical inquiry eventually comes back, in a roundabout and less transparent way, to the same kinds of questions that are front and center for means-end scrutiny. Good analogical reasoning requires finding relevant similarities, and whats most relevant about guns is their function, especially their usefulness for what Heller says is the core lawful purpose of self-defense. If automatic weapons are prohibited, but semi-automatic handguns are permitted, does that materially interfere with peoples ability to defend themselves in their homes? If so, has the government shown that the prohibition is appropriately tailored to a sufficiently strong interest? The two-part framework makes those questions explicit, rather than laundering them through a subjective form of historical formalism.

Text, history and tradition absolutely matter in the context of the Second Amendment, just as in other areas of constitutional law. But to make them the sole measure of constitutionality wouldnt give much useful guidance in hard cases, and would invite a lot of unarticulated, potentially hidden judicial discretion and power. Second Amendment scholar Nelson Lund puts the point well: Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.

The Supreme Court is being asked in this case to reject a doctrinal framework unanimously endorsed by the federal courts of appeals and widely used in constitutional-rights jurisprudence, and to adopt instead a brand-new doctrinal test that would almost certainly invite broad judicial discretion. We hope that the court declines that invitation.

Posted in New York State Rifle & Pistol Association Inc. v. City of New York, New York, Symposium before oral argument in New York State Rifle & Pistol Association v. City of New York, Featured

Recommended Citation: Joseph Blocher and Eric Ruben, Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake, SCOTUSblog (Nov. 20, 2019, 10:36 AM), https://www.scotusblog.com/2019/11/symposium-disrupting-the-consensus-on-second-amendment-doctrine-would-be-a-mistake/

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Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake - SCOTUSblog