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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: The Citizenship Clause Implicates the Second Amendment.
Aliens here unlawfully or on a nonimmigrant visa are prohibited from possession of firearms.
On April 1, the Supreme Court will hear argument in Trump v. Barbara, concerning the meaning of the Citizenship Clause in the Fourteenth Amendment. As I discussed here when the Court granted cert, there is a significant collateral issue at stake besides whether a birth certificate reflects citizenship. That issue relates to whether a person may lawfully receive or possess firearms.
The Gun Control Act (GCA) makes it unlawful for "an alien" who "is illegally or unlawfully in the United States" or who (with certain exceptions) "has been admitted to the United States under a nonimmigrant visa" to receive or possess a firearm. 18 U.S.C. § 922(g)(5). As elsewhere provided, "The term 'alien' means any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). The Fourteenth Amendment defines "citizens" as "persons born or naturalized in the United States, and subject to the jurisdiction thereof." Is a person born here of illegal aliens or of temporary visitors on a nonimmigrant visa a non-citizen who does not have Second Amendment rights?
I filed an amicus curiae brief in the Barbara case on behalf of the Article III Project in support of the petitioners and reversal. Although none of the briefs of the parties or amici (including mine) discuss the nexus between the Citizenship Clause and the Second Amendment, that issue looms in the background of who are citizens and thus who may lawfully possess firearms.
The federal appellate courts have consistently held that illegal aliens are subject to the federal gun ban because they are not protected by the Second Amendment. Post-Rahimi, the Seventh Circuit held in U.S. v. Carbajal-Flores (2025): "Even if the plain text of the Second Amendment presumptively protects Carbajal-Flores because he falls within 'the people,' a long tradition exists of disarming individuals, like illegal aliens, who have not sworn allegiance to the sovereign." As if to confirm his dangerousness, the defendant was apprehended firing shots at passing vehicles during the George Floyd riots.
Similarly, in U.S. v. Jimenez-Shilon (2022), the Eleventh Circuit skipped over the textual issue and found that under the history-tradition test, firearm ownership was limited to citizens. While decided just before Bruen, the court relied only on what would become Bruen's text-history test and did not wander into tiers of scrutiny.
While the cases are rarer, it has also been held that aliens here under a nonimmigrant visa are not protected by the Second Amendment. Noted U.S. v. Oghenebrume (M.D. La. 2025): "F-1 visas are held by those 'having a residence in a foreign country which he has no intention of abandoning,' who enter the United States 'temporarily and solely for the purpose of' education. Thus, on its face, the provision restricts aliens who have no intention of becoming a citizen and who have not declared allegiance to the United States."
Former Fox Anchor Andrea Tantaros's Court Filings Contained Inaccurate Citations; Court Suspects AI Hallucinations
Tantaros is representing herself in a lawsuit against Fox and, among others, ex-Senator Scott Brown, alleging sexual harassment and other claims.
From Friday's decision by Judge Sidney Stein (S.D.N.Y.) in Tantaros v. Fox News Network, LLC:
[B]oth Tantaros's opposition to Brown's motion to dismiss the complaint and her unauthorized sur-reply contain both inaccurate and non-existent citations to cases and statutes. After Brown's counsel notified Tantaros of citation issues in her opposition brief, Tantaros filed a "Notice of Correction of Citations" which purported to "immediately withdraw[] voluntarily" some but not all of the non-existent or inaccurate citations in her opposition to Brown's motion.
Troublingly, Tantaros nevertheless included inaccurate citations in her later-filed sur-reply. This pattern of behavior indicates that Tantaros has used artificial intelligence tools in preparing her filings but did not verify the accuracy of citations produced by those artificial intelligence tools before submitting them to the Court.
Today in Supreme Court History: March 29, 1937
3/29/1937: West Coast Hotel v. Parrish decided.
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Today in Supreme Court History: March 28, 1955
3/28/1955: Williamson v. Lee Optical decided.
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Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Permissible ingredients, mandatory detention, and burrowing mites.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
"Just two years ago, the Supreme Court reaffirmed that the Constitution promises you a timely and meaningful hearing before a neutral judge if police seize your property for civil forfeiture." But, says IJ Senior Director of Strategic Research Lisa Knepper, "modern civil forfeiture laws, as written and as practiced, frequently fail to deliver on that promise." And we've got the receipts to prove it. This week, IJ released Policing for Profit 4, the latest and greatest edition of our landmark research into the use and abuse of civil forfeiture across the country. The report contains all the latest data that you've come to expect, as well as a timely, meaningful, and unbelievably thorough (but accessible!) analysis of forfeiture statutes, procedures, and timelines across the states and the federal gov't.
New on the Short Circuit podcast: We bring on a team of experts to address that age-old, existential question: What's your favorite circuit?
New on the Unpublished Opinions podcast: We bring on a team of experts to address age-old, existential questions: What the Heck? And, why is Afroman so great? And, why is everyone talking about swinging dicks?
- Massachusetts provides special-education services to all students, but students enrolled in private schools by their parents—and only those students—are forbidden from receiving the services in their schools. Private-school families: But we have a fundamental right to choose private school, and it's unconstitutional to burden fundamental rights by conditioning public benefits on forgoing those rights. First Circuit: We think the Constitution only protects Free Exercise rights from this kind of burden, not other fundamental rights. Suit dismissed. (This is an IJ case.)
- Is a New York City law that revives otherwise time-barred civil claims based on gender-based violence preempted by a state law covering similar claims but with a different revival window? Second Circuit: This is a question better answered by the New York Court of Appeals. Question certified! Concurrence: The answer is clearly "yes," but I begrudgingly go along with the certification because a bunch of state courts are for some reason waiting for a federal court to answer this question of state law. Read More
Khan v. Yale University #TheyLied Case Dismissed Because of Plaintiff's "Egregious" Litigation Misconduct
Not the misconduct itself, but noted in the court's opinion as one of the items plaintiff had sought to withhold from discovery: "During a separate text conversation on May 11, 2018, Plaintiff texted Mr. Roe: 'If I had 5 dollars for every gender, I would have 5 dollars coz women are objects.'"
This is the case in which the Connecticut Supreme Court held that an accuser's allegations in college disciplinary proceedings are not absolutely privileged against defamation claims in a future lawsuit. But today, Judge Kari Dooley (D. Conn.) dismissed that libel lawsuit (Khan v. Yale Univ.); here's most of the conclusion to that long opinion, which follows a detailed recitation of various misconduct:
As to the document production, while the Court agrees that the production of over 70,000 pages of largely irrelevant materials has all the hallmarks of a classic "document dump," the Court does not, on the present record, infer that it was Plaintiff's intent to forestall impending depositions or the conclusion of discovery. It certainly had that effect, and such an effect was absolutely predictable, but the misconduct was in the production itself of largely unresponsive and irrelevant documents.
The indirect publication of Jane Doe's name through precisely the same method found by this Court to be egregious and intentional is shocking. It appears that Plaintiff will not be deterred. Notably, he did not seek reconsideration of this Court's decision or findings [requiring that he not disclose the name -EV], he simply chose to ignore them. And with respect to the instant motion, he merely reiterates the arguments the Court has already rejected.
The inaccurate and false sworn Interrogatory responses reveal that Plaintiff will withhold damaging information in discovery so as to increase the likelihood of his success on the merits. As discussed above, it is clear his lawyer knew nothing of the sexual misconduct claims made against Plaintiff by women other than Jane Doe and simply relied upon Plaintiff's self-report. When questioned by the defense, Plaintiff's counsel confirmed that he had checked with Plaintiff about any other complaints. Nothing. And as discussed above, the Court finds his claim to have interpreted the Interrogatory as applying only to claims that resulted in criminal charges as straining credulity beyond its breaking point.
Theranos Fraudster Elizabeth Holmes' Sentence Reduced by 1 Year
This was called for, the court held, by a new retroactive sentencing guideline that allows such a reduction when a defendant "did not personally cause substantial hardship."
An excerpt from yesterday's decision by Judge Edward Davila (N.D. Cal.) in U.S. v. Holmes:
On November 1, 2023, after the Court sentenced Holmes [to 11¼ years in prison], the Sentencing Commission amended the Guidelines … by add[ing] U.S.S.G. § 4C1.1, which provides a … retroactive two-level offense level reduction for defendants who meet certain criteria, including that "The defendant did not personally cause substantial financial hardship." …
Holmes contends that she meets each criterion. The government does not dispute this as to most criteria but contends that {Holmes's offense caused a massive amount of financial harm to several people}…. At sentencing, the Court found—and the Ninth Circuit affirmed—that … [Holmes] owed $452,047,268 in restitution to 12 investor-victims….
To determine whether a defendant caused "substantial financial hardship" under Section 4C1.1, the Guidelines instructs courts to "consider, among other things, the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to § 2B1.1." These factors are "whether the offense resulted in the victim—
Ex-FBI-Agents Alleging They Were Fired for Working on "Arctic Frost" Can Proceed Pseudonymously
From Chief Judge James Boasberg (D.D.C.) yesterday in Does 1 & 2 v. Patel:
Plaintiffs are two former Federal Bureau of Investigation Special Agents who allege that they were summarily dismissed from the FBI in October and November 2025 in retaliation for their assignment to "Arctic Frost," a federal investigation into a suspected conspiracy to overturn the results of the 2020 Presidential Election. Asserting that the terminations violated their First and Fifth Amendment rights, they seek declaratory and injunctive relief, including reinstatement and expungement of their personnel records. They now move to proceed pseudonymously, contending that public identification would expose them and their families to immediate risk of doxing, harassment, and physical harm and would also significantly impair their ability to perform sensitive law-enforcement work if reinstated.
The Court will grant the Motion, subject to any further consideration by the United States District Judge to whom this case is randomly assigned. See [Local Civil Rule] 40.7(f) (providing that Chief Judge shall "hear and determine … motion[s] to file a pseudonymous complaint")….
Sealed Charges Doesn't Mean Unmentionable-in-Court-Filings Charges
From yesterday's decision by Magistrate Judge Jacqueline M. DeLuca (D. Neb.) in Wilson v. Noshirvan:
Federal Rule of Civil Procedure 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) is "permissive" and grants the Court liberal discretion when ruling on a motion to strike.
Striking is an extreme measure and courts view motions to strike with disfavor. The purpose of a Rule 12(f) motion to strike is to "minimize delay, prejudice, and confusion." When abused, Rule 12(f) can multiply proceedings, causing unnecessary disputes and delays. Given this, Rule 12(f) motions will not be granted without a "showing of prejudicial harm." "A motion to strike a defense will be denied if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear."
Plaintiff moves to strike the entirety of paragraph 58 in Defendant's Amended Answer. Paragraph 58 provides:
Plaintiff's action is frivolous under Neb. Rev. Stat. §25-824. Under Nebraska law, a frivolous action is defined as "a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit." Trausch v. Hagemeier, 313 Neb. 538. Plaintiff allegations of "materially false statements" are either true, opinion, falsely characterized by Plaintiff or wholly irrelevant to the alleged causes of action. For example, Plaintiff claims Defendant falsely labeled him as a three-time sex offender despite only two sex offender convictions in Nebraska. However, Defendant affirmatively alleges that Plaintiff was also charged for a sexual offense in Iowa. Plaintiff alleges false assertions of child endangerment and fraudulent behavior on the part of Plaintiff. However, Defendant affirmatively alleges there are opinions derived from observations of Plaintiff's conduct. Plaintiff alleges defamatory use of the term pedophile. However, Defendant affirmatively alleges that the term was used colloquially as an opinion derived from observations of Plaintiff's conduct and criminal history.
Court Upholds Injunction Against Disclosing Information Learned from Discarded City Documents
From City of Scranton v. Coyne, decided Tuesday by the Pennsylvania Commonwealth Court, Judge Mary Hannah Leavitt, joined by Judges Michael H. Wojcik and Lori A. Dumas:
Coyne discovered boxes of personnel records labeled "Shred 2033," that had been placed outside the rear entrance of City Hall. The boxes contained the personnel files of former employees that included their names, dates of birth, social security numbers, addresses, phone numbers and other personal information. Coyne took pictures of the contents of the personnel files and made a video to document his discovery. After Coyne contacted the police, he and an officer carried the boxes into City Hall.
At the April 30, 2024, City Council meeting, Coyne informed councilmembers that there had been a data breach by the City. That same day, the City Solicitor sent Coyne a letter instructing him not to disclose any information obtained from the personnel files and to destroy all photographs of the file contents.
At a City Council meeting of October 8, 2024, Coyne disclosed the name of one former City employee from the personnel files. He further stated that he would continue to name the other former employees until the City notified all of them that their personnel records had been subject to "exposure."
On October 15, 2024, the City filed a complaint seeking injunctive relief. The complaint alleged that Coyne had examined and photographed property belonging to the City that had been mistakenly placed outside for recycling pickup. The City property consisted of boxes of personnel files of former City employees, containing their names, social security numbers, personal contact information, dates of birth, health information, and disciplinary actions. The boxes had been marked with a date for record destruction of 2033.
From Justice Frankfurter in the Steel Seizure Case (1952)
A nice passage, which strikes me as much worth keeping in mind. (How it applies to any particular controversies, of course, is necessarily a complicated and usually contested matter. In the Steel Seizure Case itself Justice Frankfurter voted against executive power, and to affirm the District Court's preliminary injunction; but the philosophy he laid out below often led him to take a more minimalist view of constitutional restraints in other cases.)
Before the cares of the White House were his own, President Harding is reported to have said that government after all is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairyland.
The opposite is the truth. A constitutional democracy like ours is perhaps the most difficult of man's social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims.
For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed.
To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded—too easy.
No § 230 Immunity for Meta's AI-Generated Ads
From Tuesday's decision by Chief Judge Richard Seeborg (N.D. Cal.) in Bouck v. Meta Platforms, Inc.:
This case is the latest installment in an expanding genre: suits against social media companies for participating in the creation and promotion of fraudulent advertisements. Plaintiffs here are victims of a pump-and-dump scheme involving shares of a Chinese penny stock, China Liberal Education Holdings Ltd. ("CLEU"). The scammers targeted Plaintiffs on Facebook and Instagram (both Meta products) through advertisements for investment groups promising handsome returns. When a plaintiff clicked on the ad, he was led to a group on WhatsApp (another Meta product) wherein the scammers would persuade the plaintiff to purchase CLEU shares. Those shares ended up being nearly worthless.
Plaintiffs sued for, among other things, aiding and abetting fraud and negligence, and the court rejected Meta's attempt to get the case dismissed on § 230 grounds:
Section 230(c)(1) of the Communications Decency Act provides that "[no] provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." … The statute defines the term "information content provider" to "mean[ ] any person or entity that is responsible, in whole or in part, for the creation or development of information provided through … any other interactive computer service." Therefore, if Meta was sufficiently involved in the "creation or development" of the fraudulent ads, then those ads were not just "provided by" the scammers—they were also provided by Meta….
Today in Supreme Court History: March 27, 1996
3/27/1996: Seminole Tribe of Florida v. Florida decided.
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Kennedy Center Director & Ambassador Richard Grenell Loses Libel Lawsuit
He sued over a claim that he "associated with Nazis" and "tried to have Vice President Pence attend a white supremacist event while he was on an overseas trip."
From Grenell v. Troye, decided yesterday by Judge Rossie Alston (E.D. Va.):
Plaintiff Richard Grenell … is a former Acting Director of National Intelligence and a former United States Ambassador. Plaintiff is a citizen of the State of California. Defendant Olivia Troye ("Defendant") is a former aide to former Vice President Michael Pence and owner of the Troye Group LLC, which … consults on political issues to the private sector.
Plaintiff served as spokesman to four United States Ambassadors at the United Nations from 2001 to 2008…. Plaintiff became the United States Ambassador to Germany, serving his country from May 8, 2018, until June 1, 2020…. Plaintiff served as Acting Director of National Intelligence from February 20, 2020, to May 26, 2020. While Acting Director of National Intelligence, Plaintiff continued to serve as the Ambassador to Germany and was also a member of a special presidential envoy for Serbia and Kosovo peace negotiations…. In August of 2020, … he became a senior advisor to the Republican National Committee…. In December 2024, following the election of Donald Trump to a second term, Plaintiff was named the Presidential Envoy for Special Missions. In February of 2025, Plaintiff was also appointed by President Trump as the Interim Director of the Kennedy Center. Finally, in May of 2025, Plaintiff joined the Board of Directors at Live Nation.
On April 7, 2022, Plaintiff tweeted his opinion of the Biden Administration restricting its search for potential nominees for the open seat on the Supreme Court of the United States to certain minorities. An exchange of tweets ensued between Plaintiff and U.S. Congressman Ted Lieu. On April 8, 2022, U.S. Congressman Swalwell tweeted to Congressman Lieu a comment that Plaintiff hung out with Nazis during his time serving as the Ambassador to Germany. Plaintiff asserts that this was a lie. Congressman Lieu replied to Congressman Swalwell, asking if he had proof of this allegation.
Defendant then joined the conversation by tweeting that she did in fact have proof that Plaintiff associated with Nazis. Defendant went on to allege that Plaintiff tried to have Vice President Pence attend a white supremacist event while he was on an overseas trip. Plaintiff asserts that, in Germany, being a Nazi is a serious crime and that it is even a crime to openly sympathize with Nazis or promote Nazi ideas.
