Ideological warriors whether from the Left or the Right are bad news for the bench. They tend to make law, not interpret law. And that's not what any of us should want from our judges. - Chuck Schumer
The first rule I was taught in law school... Okay, actually it was the second. The first was that the law library was a monument to the notion that consulting reference material was infinitely preferable to reliance on memory. It was a lesson so well learned that a generation of former police recruits will cringe whenever they hear someone say aloud: If only there was some book that had laws in it...
The second rule is an adjunct to that first - in a published opinion, the ruling judge is expressing a personal opinion (as opposed to a legal one) whenever they launch into a vitriolic rant that is devoid of citation to any authority in law, or fact. I encountered one such opinion out of Oregon's Court of Appeals just today.
It was axiomatic, at least according to my Con Law professor in 1986, that half of all constitutional law arises out of 1st Amendment lawsuits by, or about, individuals bearing fist fulls of religious tracts. One might amend that, nearly quarter of the way into the 21st Century, that the other half is now occupied by the 2nd Amendment right to keep, and bear, arms.
Into the fray comes a small county in Oregon, population fifty thousand. Citizens passed a law that made it illegal (and conveyed a private cause of action upon its violation) for the local cops to enforce any but local laws involving firearms and ammunition, local being those created in that county. In plain language, they created a firearms sanctuary. In addition, the law impressed the county sheriff with the duty to determine which laws are constitutional, and which are not.
The Oregon Court of Appeals struck this law down in a fairly conventional application of Oregon law, relying on a statute that prevents local governmental subdivisions from deciding as a matter of law that state legislation does not apply in their city or county. This is unquestionably within the authority of the court, and of the state of Oregon. Even gun rights advocates who argued as amicus have admitted this, much as they wished the case to have been decided differently.
Then comes one Egan, J. He writes a concurrence that is, in point of fact, shameful. He writes, in part:
As explained below, both counsel’s argument concerning UN mandates and the Ordinance’s solution have their origins in the ideology of white supremacist nationalism which runs contrary to the tenets of our constitutional republic. (Egan, J., concurring, page 244.)
The problem is, of course, that As explained below is in the manner of "'Shut up,' he explained." The pertinent paragraphs in which he "explains" are confined to what is his own personal opinion, devoid of any attempt to cite law or evidence before the court, that the organizing principles of the Constitutional Sheriffs and Peace Officers Association (CSPOA) which he calls out by name are directly drawn from the principles of the Aryan Nation, and are white supremacist and antisemitic in character.
One need not support CSPOA, even in part, to wonder who put a burr under this dude's saddle. Anyone who has read A More Perfect Union knows what the author - that's me - thinks of the notion that a sheriff can disregard state and federal law merely because they disagree with it. I'm also on the side of Egan, J., Concurring when he cautions that empowering local officials to arrest federal ATF agents enforcing federal law is a recipe for disaster. Read the whole cookbook. It's pretty good, and I guarantee you'll love Cici.
Neither do I think it's a terrible idea for a sheriff to read a law, take counsel from his or her legal team, and conclude that it is unconstitutional. It is not unheard of that the legislature passes a law clearly unconstitutional on its face. It is not uncommon, especially during times of great moral hysteria, that state legislatures get a little carried away. Egan, J., Concurring suggests that it is exclusively the role of the courts to determine the constitutionality of laws. Although he cites as support Marbury v. Madison (1803) it is a gross overreach to suggest that Chief Justice Marshall ruled that only courts are empowered to read the Constitution and comport their official duties within its constraints. Indeed, every time a police officer makes an arrest, they are interpreting the 4th Amendment right to be free from unreasonable search and seizure.
That isn't the worst of it. Apparently emotionally unsatisfied with merely "declining the invitation to join in this extension of the 2nd Amendment's breadth" as he might have otherwise written, Egan, J., Concurring decides to label respondents' arguments as rooted in white nationalism and antisemitism. As near as I can figure, reading his essay in the light most favorable to him, it is because:
The anti-democratic ideas and quasi-legal theories propounded by the CSPOA and embedded in Second Amendment Sanctuary Ordinances have their origins in the writings of William Potter Gale, who founded the posse comitatus movement in the 1960s. They also have their origins in the writings of the Aryan Nation, an antisemitic, white supremist group. (Egan, J., concurring, page 248).
I didn't write "citations omitted," because there are no citations to omit. What Egan, J., Concurring invites you to ignore is that he is expressing his personal opinion, not something based on evidence on the record. He also invites you to engage in a preposterous fallacy.
The Aryan Nation isn't a white supremacist group because of what it believes about the 2nd Amendment, whatever that might be. It is unapologetically racist in its core values. The disingenuous mention of Aryan Nation is supposed to link the argument in favor of the Oregon county's law and 2nd Amendment sanctuary principles, to white nationalism and antisemitism without actually offering anything resembling logic or reasoning.
The case was remanded to the lower court, the majority using a footnote to conclude that, while severability (a law being broken up into constituent parts, with some surviving scrutiny) was not "meaningfully addressed," it probably would fail, anyway. That doesn't mean a lower court wouldn't find a severability argument persuasive, and the case once again be before the Court of Appeals.
Egan, J., Concurring has demonstrated himself to be an ideological warrior, not an impartial jurist. As such, I presume we will see him recuse himself.
Yeah, sure. That'll be the day.
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