The Graham case involves law enforcement’s access of Cell Phone Location Information obtained from a phone company, based on a subpoena — not a warrant — issued by an Article I magistrate — not an Article III judge. We urged the court to re-examine its third-party doctrine which limits the protection of an individual’s records in the hands of a third party, in view of the Supreme Court’s recent Jones and Jardines cases.
“A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.”
– Second Amendment to the U.S. Constitution
One of CLDEF’s highest priorities is protecting and defending the Second Amendment. Our work focuses on building on the victories achieved in the U.S. Supreme Court in the Heller (2008) and McDonald (2010) cases, and rolling back draconian gun control laws across the land. CLDEF opposes all gun registration and licensing requirements, regulation of firearms dealers, weapons bans, ammunition bans, etc.
CLDEF urges state and federal courts and agencies to apply the Second Amendment by looking to the “text, history, and tradition” of the Second Amendment as the Supreme Court identified in Heller. This standard stands in stark contrast to the judge-empowering “balancing tests” (e.g., strict scrutiny, intermediate scrutiny, rational basis) that many courts prefer to apply in cases to uphold all manner of restrictions on firearms. As Justice Scalia explained, the Founders did the balancing. It does not matter what modern federal judges think as to the wisdom of the Second Amendment.
Many politicians and liberals claim that firearms ownership should be subject to “reasonable regulation,” but we do not concede that. First, what Senator Diane Feinstein thinks is “reasonable” is somewhat different than what others may think. Second, the Second Amendment states that the right to keep and bear arms “shall not be infringed” — not that it may be reasonably regulated.
CLDEF fights to protect citizens’ rights to keep and bear all types of “arms,” including what are pejoratively described as “assault weapons,” “large capacity magazines,” and “armor piercing ammunition.” The “arms” described in the Second Amendment referred to modern military weapons of that time — which now includes all modern military weapons of this time.
Below are some of the Firearms Law matters in which CLDEF has been involved.
Today an amicus brief was filed, on our behalf, in the Tenth Circuit in support of the right of Kansas to require that persons registering to vote under the National Voter Registration Act of 1994 submit documentary proof of citizenship. The brief supported the position taken by Kansas Secretary of State Kris Kobach.
Family & Life
The U.S. Constitution was designed to protect the rights of U.S. citizens, but activist federal judges have misused the Constitution to effect social changes that they believe would be good for the country. The Supreme Court has distorted the rights guaranteed to us by the Fourteenth Amendment both to authorize the murder of unborn children and, more recently, to compel recognition of unnatural sexual coupling as if it was morally comparable to Biblically defined marriage.
CLDEF has actively worked to defend against this distortion of the Constitution to fight against the onslaught on the sanctity of life and traditional marriage.
In a recent article, we discussed what is probably Justice Clarence Thomas’ best dissent ever. Justice Thomas discusses the flawed nature of much of modern constitutional law. CLDEF’s briefs have brought this same message to the U.S. Supreme Court in dozens of briefs filed over the last 15 years.
Below are some of the Family & Life matters in which CLDEF has been involved.
Today, an amicus brief was filed, on behalf of CLDEF, in support of The Independence Institute, in its challenge to certain federal election law and Federal Election Commission regulations governing electioneering communications. Under these regulations, Section 501(c)(3) organizations must report on their broadcast issue ads which mention the name of incumbent Congressmen. The required reports include certain information on donors to the nonprofit organizations. The brief explains why these laws and regulations violate First Amendment principles of anonymity long recognized by the U.S. Supreme Court.
Today, an amicus brief was filed, on behalf of CLDEF, in the U.S. Court of Appeals for the District of Columbia Circuit, in support of a challenge to the District of Columbia’s requirement that a person must demonstrate a “good reason” in order to obtain a permit to carry a concealed weapon. The brief noted that before Heller, the federal courts perpetuated the charade that the right of “the People” was a collective rather than an individual right. Now, the brief argued, the lower courts are perpetuating a new charade — that rights which “shall not be infringed” can indeed be infringed so long as the government strongly desires to do so, and judges believe the regulations are reasonable. The brief argued that use of such “interest-balancing” tests permits judges to come to whatever result they prefer, as this case uniquely indicates.
CLDEF has fought for strong enforcement of immigration laws in order to protect our nation from de facto invasions by foreign nations.
Below are some of the Immigration Law matters in which CLDEF has been involved.
Other Constitutional Cases
CLDEF has worked on a number of other important constitutional and statutory issues, such as misuse of the treaty power and other illegal actions of the Obama Administration.
Below are some of the Other Constitutional Cases in which CLDEF has been involved.
Searches and Seizure
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
– Fourth Amendment to the U.S. Constitution
The Fourth Amendment was put into the Bill of Rights to protect one’s private property interests in his “person, houses, papers, and effects.” Any government intrusion upon such property is per se “unreasonable,” unless the government has a superior property interest in the person or things to be searched or seized.
Thus, even if the government has probable cause and a warrant, a search or seizure of property is unreasonable unless the government can show that the thing to be seized is: (i) the fruit of a crime; (ii) the instrumentality of a crime; or (iii) contraband. If the only interest of the government is to obtain “evidence,” that would be an impermissible (“unreasonable”) seizure. For many years, this was the law of the land, known as the “mere evidence rule.”
Additionally, even if the government may search for and seize such property, it must first establish to the satisfaction of a member of the judicial branch that there is probable cause, supported by a sworn affidavit, and particularly describing the place to be searched and the property to be seized. The warrant requirement ensured that the government was not engaging in an unjustified search, but required an affidavit of someone with personal knowledge of the presence of one of the three types of property that could be seized. Should the affidavit be false, the person who signed it could be sued for trespass, as could the government officials wrongfully carrying out the search.
All aspects of the Fourth Amendment have been eroded during the Twentieth Century, to the point that the government now asserts the right to search and seize: (i) on many occasions, without any warrant; (ii) on other occasions with a warrant from someone other than a judge; and (iii) on all occasions, seeking anything whatsoever it wants if it has a warrant. The mere evidence rule has been abandoned. The warrant requirement is riddled with exceptions. And the property basis of the Fourth Amendment has been undermined by an atextual standard known as “reasonable expectation of privacy.” The first legal writing in America about a right of privacy did not occur until the 1890’s, and thus it could not be said that the Founders were referring to privacy in crafting the Fourth Amendment.
CLDEF focuses on restoring the original understanding of the Fourth Amendment. The first breakthrough occurred when the position advanced in CLDEF’s amicus curiae brief in United States v. Jones, was largely adopted by the U.S. Supreme Court — bringing back the property basis of Fourth Amendment.
These important Fourth Amendment principles were set out in a 2013 Law Review article by CLDEF lawyers Herbert W. Titus and William J. Olson, entitled
“U.S. v. Jones: Reviving the Property Foundation of the Fourth Amendment,” published in the Case Western Reserve University School of Law Journal of Law, Technology & the Internet.
Below are some of the Searches and Seizures matters in which CLDEF has been involved.
Today, an amicus brief was filed on behalf of CLDEF in the U.S. Court of Appeals for the Fourth Circuit supporting the right of a Maryland resident to purchase and possess firearms despite a prior conviction. Hamilton had been convicted of a non-violent felony in Virginia and served his sentence. Later, Virginia restored his civil rights, and then a Virginia Court specifically restored his firearms rights.
Today an amicus brief was filed on behalf of CLDEF in the U.S. Supreme Court supporting the challenge filed by Texas and 25 other states to the Obama Administration’s DAPA amnesty program. (An earlier amisuc brief was filed in support of Texas in this case in the Fifth Circuit, where Texas prevailed.) The brief explains why the Executive Branch had no authority (through DAPA or otherwise) to grant unilaterally “lawful presence” to approximately 4 million illegal aliens. It also explains that such unilateral Executive Action violates the federal separation of powers. Lastly, it explains why the sovereign States have the right to seek federal judicial review of such unlawful and unconstitutional executive actions as they constitute a constitutional “controversy” that must be decided by federal courts in accordance with Article III, Section 2, and that the traditional rules of standing do not apply.
Today, a third amicus brief was filed on behalf of CLDEF opposing NSA’s program of “Upstream” Internet surveillance of Americans. This brief urges the Fourth Circuit to reverse the decision of the District Court in Maryland which found that neither Wikimedia Foundation — which runs Wikipedia — nor the other plaintiffs in the case, had standing to challenge that surveillance.
Today an amicus brief was filed on behalf of CLDEF in the U.S. Supreme Court urging the High Court to reverse decisions from the Supreme Court of North Dakota and Minnesota which authorized police to force drivers to submit to warrantless blood and breath tests. The brief urges the Court to apply to principles of its prior decisions in United States v. Jones, and Florida v. Jardines, which re-established the property basis of the Fourth Amendment. The brief opposes reliance on the modern notion that the Fourth Amendment only protected a nontextual “expectation of privacy” — a false notion on which the two state supreme courts relied.