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Nassau County Prosecutor Gun Ban
Issue: Whether the Nassau County District Attorney’s Office has violated the 2nd amendment constitutional rights of county prosecutors by forbidding them, as a condition of employment, from possessing handguns, even in their homes.
Rule: The 2nd amendment of the US Constitution grants individuals the personal freedom to keep and bear arms.
Analysis: The Nassau County District Attorney’s Office has established that, as a condition of employment, county prosecutors must forfeit their constitutional right to keep and bear arms granted in the 2nd amendment, even in their homes. This action by the DA’s office prompts a necessary review of the 2nd amendment and an individual’s right to keep and bear arms. It also becomes necessary to review the balance between the constitutional rights of Nassau County prosecutors against Nassau County’s right to regulate the personal freedoms of certain individuals with the intent of improving the safety of the county.
It can clearly be observed that the intent of the weapons ban for prosecutors is being put forth with the intent to improve the safety of the citizens of Nassau County. The DA’s office has openly stated that the intent of the policy is to ensure the comfort and safety of the staff, victims, and witnesses. It is within the authority of state and county governments to enact statutes that advance the safety of their respective societies and constituents. This leads to the necessity of determining whether the ban of personal firearm ownership by county prosecutors advances the governmental interest of promoting a safer society. In the case of the personal weapons ban on prosecutors, it can be plainly recognized that within the confines of the courtroom, the ban advances many worthy causes. First, it seems quite obvious that firearm possession by prosecutors within the courtroom could be used to subvert justice by intimidating opposing council, potential witnesses, and jurors. Additionally, during judicial proceedings, courtrooms are places where tensions and emotions are often maintained at very high levels. For this reason, it is necessary to maintain a courtroom that is free of firearms during these situations. During extremely intense situations, most individuals experience impaired judgement due to elevated emotional levels. The havoc that would ensue in a courtroom setting that was laced with firearms during these situations could only be imagined. With this in mind, it can be said that the firearm ownership ban on county prosecutors will advance the government interest of promoting safety in certain instances. It is also necessary to evaluate whether the firearm ownership ban is too broad and therefore unduly burdensome in regards to the personal rights of Nassau County prosecutors.
One of the main issues for review in this case is whether governments have the right to regulate off-duty personal behavior and limit certain freedoms of government employees while they are off duty. Many employers do regulate the off-duty conduct of their employees. Many
times employers will make this explicitly clear before an individual is hired for a position. However, most monitoring of off-duty employee conduct is in regards to employee misconduct. Also, most employers and government agencies are concerned with monitoring only the off-duty conduct that would reflect negatively on the business or government agency. It is obvious that the Nassau County government has a legitimate interest in regulating firearm possession of county prosecutors while they are on the job, but the validity of regulating off-duty firearm possession is questionable. The first question that should be reviewed is whether off-duty firearm possession by prosecutors qualifies as misconduct? It could easily be argued that off-duty firearm possession does not constitute misconduct on the part of prosecutors. If a prosecutor has obtained the proper permits to carry a firearm, they have broken no laws by simply owning and possessing a firearm while in public. An additional question worth contemplating is whether off-duty firearm possession on the part of county prosecutors reflects poorly on the county government? As previously mentioned, if a county prosecutor were to use a firearm in a manner that would be seen as intimidating toward opposing council, potential witnesses, or seated jury members, obviously this conduct would reflect very negatively on the county government. However, there are already many laws in place that regulate the appropriate use of firearms. There are also many laws that outline the appropriate penalties for the misuse of firearms. For these reasons, the need for the Nassau County District Attorney’s Office to further restrict the 2nd amendment rights of the county prosecutors seems greatly diminished.
Additionally, the attempt by the District Attorney’s office to ban Nassau County prosecutors from legally possessing firearms within their homes is in need of review to determine whether this action by a government agency is too restrictive. An obvious consideration is the right of the county prosecutors to protect themselves as well as their families while they are within their homes. It could easily be argued that county prosecutors may be the target of lawbreakers and their families. With this fact in mind, it calls into question whether the ban actually advances safety as it claims to do. In terms of the prosecutors and their respective families, it would seem obvious that the gun ban on prosecutors greatly diminishes their safety. For this reason, the ban seems too restrictive.
Finally, it seems necessary to consider whether Nassau County prosecutors should retain the individual right to keep and bear arms granted in the 2nd amendment of the constitution while they are in their own homes. In other words, should a county prosecutor cease to be considered a government employee and began to be considered a private citizen while in the confines of their own home? If the prosecutor in question is neither engaging in illegal activity nor infringing on others rights, the logical answer would seem to be yes, they are a private citizen while within their home. If this logic holds true, the ban on personal firearm ownership by the District Attorney’s Office can be viewed as an arm of the government depriving a private
citizen of their 2nd amendment constitutional right without the due process of the law. This is a clear violation of the 14th amendment.
Conclusion: In light of the preceding analysis, the Nassau District Attorney’s attempt to ban personal firearm possession by county prosecutors is deemed unconstitutional as it is too restrictive in the fact that it strips the prosecutors of their 2nd amendment rights without first observing the due process of the law which is required by the 14th amendment.
Anheuser Busch InBev – SABMiller Merger
Issue: Whether a horizontal merger between AB InBev and SABMiller would constitute a violation of Section 7 of the Clayton Act by significantly reducing competition and therefore creating monopoly power within the beer industry.
Rule: Section 7 of the Clayton Act states that no person shall acquire a whole or substantial part of the stock or assets of another person engaged in commerce that will have the effect of severely limiting competition or creating a monopoly.
Analysis: In the past months, there have been substantial talks of Anheuser-Busch InBev, maker of Budweiser, potentially acquiring SAB Miller, the maker of Miller. Obviously, this would have the effect of creating a behemoth of a beer-producing firm. The language of Section 7 of the Clayton Act would point to a necessary review of the merger for its possibly anticompetitive effects and also for its potential to create a monopoly within the beer industry. The horizontal merger analysis for anticompetitive effects follows two guidelines. The first guideline centers on the mergers ability to create coordinating or collusion effects between the parties involved. The main question to be answered is whether the merger will allow the parties involved to cooperate in a way that will result in price fixing, reduced quality, or reduced output instead of engaging in free market competition. Also, mergers should be analyzed for their potential to create a firm so large that it could unilaterally raise prices above competitive levels, restrict its output, or control innovation. The guidelines are designed to determine whether a merger will result in disproportionate market power that would lead to reduced competition. In the past, market power was determined by market definition, the level of market concentration that would result from a merger, likely anticompetitive effects from the merger, the ease of which future competitors could enter the market, and an overview of any possible efficiency improvements that may have benefitted the firms as a result of the merger. Recently, less attention has been devoted to market definition and market concentration. Instead, the focus of merger analysis has focused on the potential anticompetitive effects of the merger. For this reason, we will devote a substantial amount of our analysis to the potential for anticompetitive behavior as a result of the possible merger of the two beer giants.
Though we will spend very little time on market definition, we will touch on it briefly. With any small amount of research, one would quickly be able to discover that the beer market is expanding all around the world. Statistics obtained from the website Euromonitor International show that beer markets are expanding in developed and undeveloped countries alike. Even countries such as Azerbaijan, Indonesia, Vietnam, and the Cameroon experienced growth in the beer market.[1] When this is combine with the expansion of the craft beer market as well as the remaining presence of Molson Coors, it can be hard to image a substantial region
were the post-merger beer giant would be the only industry product available in a significant region.
An additional consideration when analyzing a merger, is the post-merger market concentration of the newly merged firm. Recent data has indicated that AB InBev currently enjoys a market share of approximately 40 percent, while SAB Miller sustains approximately 18 percent market share. This would result in a firm with 58 percent market share, post-merger. In the past, market concentrations of 70 percent or higher have been considered to present the possibility of anticompetitive behavior due to monopoly power. However, some firms with market concentration just slightly above 50 percent have been scrutinized for possibly having the ability to reduce competitive market effects by their possession of monopoly power. So, we can see that the post-merger market concentration of 58 percent can be concerning.
Also to be considered, is the possibility of new entrants to the beer market. The beer industry, especially the mass production beer market, has typically been a very capital intensive industry with high fixed costs. In terms of the craft beer market, barriers to market entry such as capital requirements are substantially less than the mass produced beer market. However, the challenge of obtaining distribution channels can present a significant obstacle to startup craft breweries. In terms of the potential of future entrants to penetrate the beer market, the main question becomes, how relevant is the lack of future entrants to the beer market to whether the post-merger firm will enjoy substantial market power? It could be argued that, at this time, there is no true need for future entrants to the beer market in order to limit the market power of a post-merger beer goliath. Given that Molsen Coors and multiple craft-beer breweries provide viable alternatives, there may be no need for viable future entrants to maintain competitive behavior within the beer industry.
New efficiencies that would be gained from the merger are also to be considered during a horizontal merger analysis. In the case of the AB InBev SABMiller merger, the new firm will have gained significant economies of scale from the merger. This can be a huge benefit in a mass produced beer market whose product offerings can nearly be considered commodities that are difficult to differentiate and ultimately end up competing based on price. Significantly lower cost due to economies of scale could give the new firm a competitive advantage.
This leads us to the final question and, undoubtedly, the most important question. Do any of these factors lead to the new firm likely obtaining market power to the extent that it could produce anticompetitive effects in the industry? We have established that the lack of potential future entrants to the market and a high market concentration are areas of concern, post-merger. However, do these two factors lead to market power that could reduce competitive behavior? As was previously discussed, lack of new entrants is not a relevant factor in the analysis of this merger. Molson Coors and the growing craft-beer market present viable alternatives to the products of the potentially larger firm that would result from a merger of AB InBev and SABMiller. Also, the global reach of the beer market makes it seem unlikely that the
new firm would enjoy any markets were it could impose total dominance and anticompetitive pricing. In fact, if past trends hold true, a merger of the two largest beer firms may produce a growth in the craft-beer industry, thus leading to greater competition in the beer industry.
Conclusion: Although AB InBev and SABMiller would control approximately 58 percent of the beer market after the planned merger, and new entrants into the market are not highly likely, there still remains viable competition in the market in the form of craft breweries and Molson Coors. For this reason the new firm will not enjoy substantial market power that will lead to anticompetitive effects. Therefore, the merger does not violate Section 7 of the Clayton Act.
1. http://www.euromonitor.com/beer
Texas Highway Construction Project – Endangered Spider Discovery
Issue: Whether continuing construction of a Texas highway project, in light of the discovery of an endangered species’ habitat within the construction zone, would violate the Endangered Species Act.
Rule: The Endangered Species Act protects endangered and threatened species and their habitats by preventing the “take” of listed animals and the interstate or international trade in listed plants and animals, including their parts and products, except under federal permit.
Analysis: The Braken Bat Cave Meshweaver spider, commonly referred to as the Meshweaver, is an extremely rare spider that is endemic to Bexar County, Texas. The spider is approximately the size of a dime, translucent, and blind. The Meshweaver was officially place on the federal endangered species list in 2000. The spider was first discovered in 1980. To date, there have been only two confirmed sightings of the Meshweaver. It is the second sighting of the Meshweaver that brings us to the subject of our current discussion.
The Texas Department of Transportation had been moving forward with construction efforts to build a highway underpass at Texas highway 151 and Loop 1604 in Bexar County, Texas. A period of heavy rain had exposed a six-foot hole in the underpass construction zone. Thereafter, a construction crew member discovered a Meshweaver spider near the exposure. The spider was then dissected, after the proper federal permit had been obtained, and it was concluded that the spider in question was the Meshweaver spider. Following this determination, the highway construction project was halted, temporarily, to determine the necessary actions to be taken after the discovery of the Meshweaver. At this time, it is necessary to examine the factors that will determine whether construction plans for the highway underpass should proceed as planned, be altered, or be completely terminated.
Initially, we will examine how the construction plans were allowed to proceed without a proper survey of the construction zone to determine whether an endangered species was residing in the area. The first red flag appears when it is realized that the Meshweaver spider was initially discovered in 1980 only five miles away from the current construction site. Also, 19 cave structures were discovered during the construction process. Five of these cave structures contained spiders. Additionally, and possibly the most compelling observation, is the fact that due to multiple subterranean cavernous structures in the area, Bexar County, Texas is home to 28 different endangered species.[1] These examples seem to point to the fact that a proper survey of the construction zone was not performed prior to the start of the project. This is an unfortunate occurrence, considering that over $15 million worth of taxpayer money had already been committed to the construction project. However, this is not a proper justification to simply proceed as planned with disregard to the very likely possibility that an endangered species may be inhabiting the underground region that will be excavated to allow the
underpass to be built. If this were allowed to happen, this would set a dangerous precedent that could be cited as consent to proceed with future high-dollar projects without first properly surveying the development area. As a result, fragile ecosystems could be destroyed, and our planet’s natural environment would be unnecessarily degraded.
It is also essential to examine the five statutory factors that grant a species protection under the Endangered Species Act. A species must be classified as endangered if at least one of the five factors is satisfied. The first factor is whether there is a present or threatened destruction, modification, or curtailment of the species’ habitat or range. In many cases involving the classification of species as endangered or threatened, the species’ range can be hard to classify. However, in the current case, the Meshweaver’s range is not what is in question. The planned excavation runs directly through the underground cavern where the Meshweaver was recently located. For this reason, it seems logical to conclude that the Meshweaver’s current habitat is set to be destroyed by the current construction plans. The next three statutory factors seem to be of less relevance to the current situation; overutilization of the species, disease or predation, and the inadequacy of the existing regulatory mechanisms. The fifth statutory factor to be considered is whether any natural or manmade factors affect the Meshweaver’s continued existence. It seems very apparent that the current construction project, which is manmade, threatens the spider’s continued existence. The excavation site for the highway underpass is the only area in which the Meshweaver has been observed in the last three decades. This is not to say that the Meshweaver does not exist or could continue to exist in another nearby location. However, at this time, there have been no other sightings of the spider in other locations. This would make it logical to conclude that, at the very minimum, the construction project should be put on hold temporarily to survey the area to determine if any other areas can provide a habitat for the Meshweaver.
It is clear that two out of the five statutory factors are met in the case of the Meshweaver spider. As mentioned previously, the requirement for listing a species as threatened or endangered is proof of one or more factors. For this reason, the Meshweaver spider will continue to be classified as an endangered species. Additionally, the construction activities were properly postponed in order to make this determination. Proper measures should be taken to ensure that the natural habitat of the Meshweaver is not destroyed.
Conclusion: The discovery of the Meshweaver spider in the middle of a construction site presents a dilemma. Should the species’ natural habitat be maintained, or should construction plans be allowed to proceed as planned? The previous analysis proves that the construction plans cannot proceed as planned due to the precedent that may be set by that course of action. However, it is certainly not necessary to terminate the plans completely. In order to strike a balance between preserving a natural ecosystem and protecting the interest of the taxpayers of the state of Texas, the construction activities should be delayed until an alternative plan can be
reached. Once a plan can be devised that will protect the habitat of the Meshweaver spider, the construction project will be allowed to continue.
1. http://www.mysanantonio.com/news/local_news/article/Tiny-spider-is-a-big-roadblock-3849198.php
Sikh Student Denied Enlistment in School’s ROTC Program
Issue: Whether the blocking of Hofstra University student Iknoor Singh’s enlistment in his university’s ROTC program based on the program’s grooming standards constitutes a violation of the Civil Rights Act of 1964.
Rule: The Civil Rights Act of 1964 outlaws discrimination based race, color, religion, sex, or national origin. The Civil Rights Act has been applied to voting rights, schools, places of employment, and facilities that serve the general public.
Analysis: Iknoor Singh is a student at Hofstra University. He is also an adherent to Sikhism. The religious teachings of Sikhism make it an act of disobedience for a male Sikh to cut his hair or shave his beard. Sikhs are also required to wear turbans in public. Recently, Mr. Singh attempted to enlist in the Hofstra University ROTC program. He was subsequently denied an exemption to the program’s grooming standards that would have required him to remove his turban, cut his hair, and shave his beard. The army later modified its position and decided that Mr. Singh could apply for the exemption, but only after he had been admitted to the program. This placed Mr. Singh in a very precarious situation. He was left with the choice of violating the tenets of his faith in order to gain entry to the program where he could then apply for the grooming exemption. The facts just presented require a review of the ROTC grooming policy to determine whether it was administered in a way that constitutes a violation of the Civil Rights Act of 1964.
It can be plainly seen that the grooming requirements for the United States Army have been developed to further the government interest of safety for its soldiers. The army has long maintained that the standards are there to advance the army’s readiness by promoting unit cohesion, discipline, heath, and safety. It can also be seen that basic grooming standards achieve this objective. One could only imagine how difficult it could be for a soldier to quickly and properly fasten a combat helmet or a gas mask while accounting for the presence of long and disheveled hair and an ungroomed beard. The question that remains to be answered is whether the grooming standards are too restrictive, and therefore have caused the army to discriminate against Mr. Singh on the basis of religion.
The case of the grooming exemption denial raises the need to answer many questions about its restrictiveness. First, does a turban that covers long hair make it impossible to wear a combat helmet? The answer is no. Capt. Tejdeep Singh Rattan, a dentist in the US Army, was able to easy wear a Kevlar helmet over his turban. The turban was custom designed by Rattan himself. It was also camouflage and made with materials that Rattan purchased himself. A second question that must be answered is whether a gas mask can be sealed properly when worn over a beard? There is evidence stating that it can. Rattan’s uncle, who served in the Indian army, has claimed that he wore a gas mask over his beard while in combat. Rattan’s uncle claims that
Vaseline applied to the beard allows the gas mask to seal properly.[1] This leads to the conclusion that reasonable accommodations can be made to allow Sikhs to wear turbans and maintain beards while in training and in combat. It is also worth considering that exemptions to the grooming standards have been granted to Sikhs in the past on the basis of their religious beliefs. The fact that the exemptions are granted on a case-to-case basis would lead to the conclusion that many of the denials are reached arbitrarily since many grooming exemptions have been granted in the past. If Sikhs are completely capable of wearing helmets over their turbans and gas mask over their beards, and if grooming exemptions have been granted to Sikhs in the past based on religious grounds, it seems arbitrary and unduly burdensome to deny the grooming exemption to Mr. Singh.
In this case, one final matter needs to be taken into consideration. The Civil Rights Act has effectively outlawed discrimination in voting rights, schools, the workplace, and facilities that serve the general public, also known as public accommodations. Educational institutions have fallen under the umbrella of public accommodations. Given the fact that Mr. Singh was initially denied ROTC enrollment by an officer that was working with Hofstra University and that the ROTC program is exclusively offered through universities throughout the United States of America, it could be argued that Mr. Singh was denied enrollment to an educational institution based on his religious beliefs.
With the previous evidence in mind, it is obvious that reasonable accommodations can be made for a Sikh to maintain a beard, long hair, and to wear a turban while enlisted in the ROTC program. This makes it very difficult to imagine why Mr. Singh was denied a grooming exemption that would have prevented the need for him to violate his religious beliefs to apply for the ROTC program. Additionally, the exemption denial can be viewed as an exclusionary policy that effectively bans an entire religion from participating in the ROTC program. Also, given that the ROTC is a program that is offered by the US Army, exclusively through colleges and universities, the denial of the grooming exemption can be viewed as effectively barring all practitioners of the Sikh religion from being considered for admission to an educational institution. Educational institutions have fallen under the classification of a public accommodation, therefore the Civil Rights Act prohibits educational institutions from discriminating against individuals based on their religion.
Conclusion: Given the fact that the ROTC program is available exclusively through colleges and universities in the United States, it is logical to classify the program under public accommodations, given the long-held standard that educational institutions can be considered public accommodations under the Civil Rights Act of 1964. Also considering that it has been observed that helmets can be worn over turbans and gas masks can be properly sealed over beards, it can be concluded that the army grooming standards for long hair and beards is too restrictive when weighed against strongly held religious beliefs. The fact that the ROTC did not
grant Mr. Singh a grooming exemption in light of this evidence constitutes an educational institution discriminating against, not only Mr. Singh, but all individuals who practice Sikhism by effectively barring them from consideration for admission to the ROTC program based on their religious beliefs. This is a direct violation of the Civil Rights Act of 1964.
1. http://www.army.mil/article/36339/sikh-soldiers-allowed-to-serve-retain-their-articles-of-faith

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