News 2002

July 24 : June 21 : May 16 : March 4 : February 21 : January 17

July 24, 2002

  • The Virginia Institute for Public Policy has published a report, "A Primer on the Constitutional Right to Keep and Bear Arms," written by Nelson Lund. In it Mr. Lund concludes:

    "The precise scope of the Second Amendment's guarantee, however, and its proper application in a world that has changed enormously since 1791, cannot be determined solely by reference to the Constitution's text and history. Subsequent developments in the technology of weapons and in military technique have rendered the armed citizen wholly impractical as a substitute for standing armies and much less potent as a deterrent to despotism. At the same time, the increased destructive potential of small arms has raised new questions about the type of "arms" that may appropriately be left in civilian hands and about the regulations that may constitutionally be imposed on civilians' use of their weapons. These questions will assume real importance if the Supreme Court takes up the Second Amendment with the same serious attention that it has given to the First Amendment and other provisions of the Bill of Rights.

    Despite all the changes that have occurred, the Second Amendment can continue to serve its fundamental purpose. That purpose is to secure the natural right of self-defense, which is no less threatened when government deprives its citizens of the tools for resisting criminal predators than it would be if the government itself turned outlaw. This simple but momentous insight is the key that opens the door for a serious Second Amendment jurisprudence, and it thus gives the constitutional scheme of ordered liberty its best hope of surviving in the crucible of litigation."

    To read the full report, click HERE.

June 21, 2002

  • On February 6, 2002 the Civil Rights practice group presented "Combatting Terrorism and the Impact on Civil Liberties" at Pepperdine Law School. The panel included: Judge Abraham Sofaer, U.S District Court Judge, Southern District New York; Prof. Robert Purshaw, University of Missouri School of Law; Prof. Karl Manheim, Loyola School of Law and Steven Rohde, outgoing president of the Southern California ACLU. Click HERE to read the transcript.

May 16, 2002

  • On Thursday, May 9, 2002, Deputy Solicitor General Paul Clement spoke on the Supreme Court's current term to roughly 60 attendees at a luncheon sponsored by the Federalist Society's Milwaukee Attorneys Chapter. Although many of the Court's decisions have not been issued yet, Clement still noted several interesting aspects of the current term.

    Clement stated that the Solicitor General's office weighs in on the vast majority of cases that come before the Supreme Court, and only declines to do so when no federal interest is implicated. He cited the Cleveland school voucher case, Zelman v. Simmon-Harris, as the case from the current term that will likely have the greatest impact. Clement declined to predict the outcome, but did indicate that those hoping for a "pro-voucher" decision should not expect more than a 5-4 majority. Regarding the decision in Tahoe-Sierra v. Tahoe Regional Planning Agency, Clement commented that those seeking to have local government's regulation considered a "taking" had aimed too high; he contrasted the more incremental approach taken by those defending statutes imposing drug tests on certain groups of high school students, which appeared to have more success. Clement also touched on the recent developments regarding Second Amendment jurisprudence, stating that the interpretation of the amendment as providing for the rights of the individual was not a novel or radical concept. Clement also discussed several Fourth Amendment cases before the Supreme Court.

March 4, 2002

  • CIR Challenges Racial and Gender Preferences for New York City Custodians
    In a case with important implications for consent decrees involving racial and gender preferences, CIR filed a federal class action lawsuit this month challenging New York City's preferential employment policies for female and minority school custodians. The class in Brennan v. Ashcroft consists of custodians who are disadvantaged by the preferences, which involve both promotion and retroactive seniority. The preferences are the result of a consent decree which settled the Clinton Justice Department's lawsuit against the New York City Board of Education. Justice charged in that suit that the Board's practices and civil service exams had a discriminatory impact on recruitment, hiring, and promotion of female and minority custodians. The defendants in the suit just filed include the Justice Department and its officials, in addition to the City of New York. CIR will argue that neither New York City nor the United States identified, or even alleged, intentional discrimination of any kind. Instead, the DOJ suit pointed to factors such as poor minority performance on entry-level and promotional examinations and a lack of female job applicants as supposed evidence of discriminatory impact. Such factors alone provide no legal justification for discrimination against whites and males. Accordingly, the class action asks the court to prohibit the custodian preferences and declare them to be a violation of the Constitution's equal protection clause and federal civil rights laws. Two of the named plaintiffs are also requesting damages. New York City continues to implement the preferences despite the fact that the consent decree was rejected in August by a federal appeals court, after CIR sued on behalf of three white male custodians who wished to intervene in the DOJ lawsuit to challenge the settlement. The U.S. Court of Appeals for the Second Circuit remanded the case back to the trial court after vacating its denial of intervention as well as its consent decree.

February 21, 2002

  • The Justice Department recently announced the creation of a new position of Senior Counsel to coordinate anti-religious discrimination efforts in various sections of the Civil Rights Division. The Senior Counsel will serve in the Office of the Assistant Attorney General for Civil Rights and report
    directly to the Assistant Attorney General.

    The Civil Rights Division of the Justice Department is the primary institution within the federal government responsible for enforcing a number of federal statutes prohibiting discrimination on the basis of religious affiliation or belief and guaranteeing reasonable accommodation for religious practice, including Titles III, IV and VII of the Civil Rights Act of 1964, the Religious Land Use and Institutionalized Persons Act of 2000, the Equal Access Act, and the federal arson statute. The Division also defends religious discrimination laws against constitutional attack, and plays a leading role in administering a number of federal provisions that protect and preserve the religious autonomy of individuals and institutions against federal interference, such as the Religious Freedom Restoration Act, the Fair Housing Act, and various charitable choice provisions. Finally, the Division's amicus practice includes litigation activities to combat religious discrimination.

January 17, 2002

  • In a case with major implications for all job bias suits, the U.S. Supreme Court was urged to take a hard line against attempts by employees to recover for violations by employers that would be time-barred under Title VII of the Civil Rights Act of 1964. The justices heard arguments Jan. 9 in National Railroad Passenger Corp. (Amtrak) v. Morgan, No. 00-1714, a case involving the application of the so-called continuing violation doctrine to employment discrimination claims. Click HERE for more information.

2003 The Federalist Society