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Clark Neily
VP / Project on Criminal Justice. Bane of bureaucrats & lover of liberty. More Constitution, less govt.
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Clark Neily Apr 14
Replying to @sheldongilbert
This would be fascinating even if the fam was not headed to Portugal for vacation tonight. Which we are. Though not, apparently, for the vultures.
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Sheldon Gilbert Apr 13
" 'It's not you, it's me.' No, scratch that. 'It's totally you, not me.' Hmm. Too informal. 'When in the course of human events...' "
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Clark Neily Apr 13
Replying to @michaelZfox @WaqarVick
You guys probably begrudge police the 11,959 bayonets they got under DOD’s 1033 program too, don’t you? Squishes.
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Clark Neily Apr 13
I don’t believe there is such a thing as “good faith rational basis review” because the rational basis test is itself an exercise in bad faith. I mean, just look at the requirement that P “negative” every conceivable justification for the law. That is literally impossible to do.
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Clark Neily Apr 13
Replying to @michaelranaii
Yes, and most lower courts have been applying rational basis review while calling it intermediate scrutiny. I suspect that chicanery has vexed a number of the justices.
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Clark Neily Apr 13
Replying to @IHasTrees @bhrondeau
Yes, but w/o the indignation. 5 justices want a case involving an insignificant gun law in which they can send a message to lower courts to stop applying rational basis review while calling it heightened scrutiny. This case is an ideal vehicle for that. So they won’t dismiss it.
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Clark Neily Apr 13
True, but my hunch is that five justices really want to tell lower courts to stop applying rational basis review and calling it by another name in Second Amendment cases. This case presents an excellent opportunity to do that because the regulation at issue is so trivial.
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Clark Neily Apr 13
Replying to @bhrondeau
Same here, but I suspect Paul Clement will dress that up some.
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Clark Neily Apr 13
Agreed. Although in this case, “Words, words, words” would likely work equally well.
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Clark Neily Apr 13
You feel like you know exactly which 11-year-old kids need body-slamming do you?
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Clark Neily Apr 13
So now we know what it takes for a DOJ prosecutor to be meaningfully disciplined by DOJ’s Office of Professional Responsibility. You probably will *not* be surprised to learn who the aggrieved party was.
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Clark Neily Apr 13
Replying to @gerardkas @BCD_76
Certainly feel free to dig in and get back to us if you feel like you come up with a compelling justification for why a grown, heavily armed man needs to body-slam an 11-year-old child. Granted, the kid was no angel, but you can easily paralyze or even kill someone with that move
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Clark Neily Apr 13
If 5 justices want to hear this specific case b/cit gives them the chance to say something about standard of review in a substantively insignificant setting, then Clement can literally file a brief with “Plug in some argument or another here” on the front page.
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Clark Neily Apr 13
Replying to @JoshMBlackman
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Clark Neily Apr 12
Replying to @cjciaramella
You can almost hear the cops and the prosecutors involved in this travesty high-giving each other. I mean sure, they could be clearing out those shelves of untested rape kits, but that would be hard and unremunerative.
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Clark Neily Apr 12
Can you imagine what prosecutors would do to a retirement home that allowed this to happen? Of course you can. But not a jail—oh my, no. Professional courtesy, plain and simple.
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Clark Neily Apr 12
Replying to @bhrondeau @adamwinkler
SCOTUS can decide w/r to let NYC get away w this blatant gamesmanship or not, as they wish. Usually SCOTUS goes along, but this time I suspect they won’t. 5 Justices want to send a message to lower courts in a case that’s substantively insignificant. This one fits the bill to a T
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Clark Neily Apr 12
Replying to @adamwinkler
Imma quit before I get carpal tunnel. You get the point: It’s bad faith all the way down.
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Clark Neily Apr 12
Replying to @adamwinkler
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Clark Neily Apr 12
Replying to @adamwinkler
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