According to the Supreme Court of the United States, I am the lead singer of The Slants. I am not. I have never been. I am the bassist—the founder, the bassist, and the person who spent the better part of a decade fighting the federal government over the right to use our band's name. Anyone who has ever listened to our music, attended one of our shows, or spent a few moments searching our name would know this. But the Supreme Court's opinion in Matal v. Tam says otherwise, and because it does, so do the law review articles, the IP textbooks, and the classroom discussions that have built up around the case in the years since it was decided.
I raise this not to embarrass anyone. I raise it because it is a precise and verifiable illustration of something that practitioners and scholars who study Matal v. Tam should understand: The legal record of a landmark case is not the same thing as what actually happened. The opinion is not the case. The briefs are not the strategy. And the story that has calcified in the legal literature—about what this case was, how it developed, and why the decisions made along the way were made—contains gaps and errors that only a firsthand account can correct.
Here's what happens when I search for "mason soiza spammer with a gold lamborghini"; that headline is the title of a Times (London) article:
The article thus doesn't show up in the search results, though other items that point to it do show up. I get similar results when I search, without a site:thetimes.com limitation, for "web entrepreneur faces inquiry over online sale of painkillers" (another article about Soiza). And I get similar results when I search for site:thetimes.com "mason soiza":
The DMCA complaint specifically targeted, among other items, these Times pieces:
The claim in the DMCA complaint was that the Times articles infringed the copyright in an OnlyFans page, https://onlyfans.com/angiestonex. That claim appears not to be accurate, yet Google did indeed deindex articles in a major newspaper based on the claim. (The newspaper would presumably be able to file a DMCA counternotification and get the matter reconsidered, but they may have been unaware of the situation.)
Dr. Angus McClellan has just posted 151 pages of "Additional Research on Comprehensive Security and Sensitive Places" showing that at the Founding armed security was tied to each of Bruen's three sensitive places where arms could be restricted. Historical tradition from the American colonies and early states demonstrates that the predicate for banning weapons by the public at courts, legislative assemblies, and polling places was the government's provision of real protection in fact. That research supplements Dr. McClellan's compendium "The Second Amendment, Sensitive Places, and Comprehensive Government Security" which I summarized here.
In Wolford, the Supreme Court found Hawaii's law banning firearms on private property open to the public without affirmative consent of the owner – aka, the "Vampire Rule" – to violate the Second Amendment. The Court took notice of, but did not resolve, the issue that, "On a large portion of the land within the State's boundaries, possession of a firearm is now flatly prohibited." That issue has been pending in the several states that sought to nullify Bruen's holding that firearm carry permits may not be restricted to a privileged few or denied for purported lack of "need." One of those states is New Jersey, and early this year the Third Circuit en banc held oral argument about that ban in Koons v. Attorney General. See my post here.
The premise of these bans is that any place is "sensitive" if the legislature so declares. While it is often argued that being crowded suffices, that is belied by the fact that the bans include vast acreage of wooded parklands inhabited primarily by deer and squirrels. But Bruen explicitly rejected an arms prohibition based on being crowded, explicitly mentioning Manhattan as an example. Bruen did not go into the factual historical tradition justifying gun bans in the three locations it mentioned, as the issue was not before the Court. And that's where the research by Dr. McClellan fills the gap.
As prefaced in his "Additional Research," McClellan states: "The primary purpose of this additional research is to determine whether all 13 original colonies or early states had armed, government security personnel assigned to doorways at the sensitive places of courthouses/courtrooms, legislative buildings/chambers, and polling places." A secondary purpose, he continues, is to confirm that courthouses, legislatures, and polling places were indeed "sensitive," i.e., governments could or did ban weapons there. As for the method of research: "There are four sought-after elements in the historical material for determining whether a place had comprehensive security: a government agent was assigned to the place; his duties included maintaining security; he guarded a doorway; he carried a weapon." Finally, a "sensitive place" was "one where arms were prohibited." The research compiles sources showing where bans were enacted with evidence that such places were secured.
McClellan's research is truly overwhelming and is supported by hundreds of footnotes. Weapons were not necessarily always banned in the subject places, but they could be; the ultimate point is that these places were secured by government agents. I will mention only one entry illustrative of each of the identified sensitive places.
Courthouses. At the trial of Aaron Burr, General James Wilkinson was disarmed in the court by the U.S. marshal to prevent him from intimidating the jury, indicating at least that (1) weapons were or could be banned in court, (2) government officers were present in court to disarm people. Wilkinson was a senior U.S. Army officer who had conspired with Burr to raise an army to seize Spanish territory. He turned against Burr and served then as the prosecutor's chief witness. At the grand jury proceeding, the jury foreman was John Randolph of Roanoke, who upon seeing Wilkinson with a sword, alerted the marshal (1807).
Legislative assemblies. The Philadelphia Convention was off-limits to civilians entirely. Armed sentinels guarded the doorway to the hall, both inside and out. Note also that "it was standard procedure for legislative bodies to meet in secret" (1787).
Polling places. Delaware: Sheriffs shall be judges of elections, and he and other officers shall be required to preserve good order and keep the peace. Inspectors shall, when taking the [voice] votes or tickets, call out loud the name of the elector, and shall then place the tickets into a ballot box (1772).
The pattern was consistent: where the government required citizens to disarm, it supplied the protection itself. At other times, the government required citizens to arm themselves, such as in colonial times when going to church.
"Sensitive places" was never meant to be a blank check. At the Third Circuit's en banc argument in Koons, Judge Paul Matey asked New Jersey counsel whether courts should "really be overreading Heller's colorful use of the phrase 'sensitive places' as actually creating a doctrine," likening it to "large capacity magazines or assault weapons" — "a regulatory term that could be applied to anything that a regulator wants to regulate and then used as a claim for historical justification."
The one principle that does come from history is government-provided security. As Judge Matey put it: "at least one example of what it means could be places where government provided comprehensive security, right. And so we would know that that courthouse, a military base, these are places where … going armed was severely restricted. I mean, isn't that a helpful way of thinking about this?" The State's reply was that "the history is just not there." The record says otherwise.
Without a security limiting principle, there is neither security nor a principle. The Fourth Circuit in Kipke v. Mooreupheld Maryland's gun bans on transit, parks, hospitals, museums, stadiums, and casinos on "crowded" and "vulnerable" theories — the very rationales Bruen rejected for Manhattan. Judge Agee, dissenting, called the sensitive-places exception "narrow" and warned that the majority had turned it into a license.
Comprehensive security makes sense. If the government takes no steps to prevent armed aggressors from entering a place, calling it a "sensitive" location is meaningless and reckless joke. Exercise of the Second Amendment right then remains the constitutionally-mandated default.
From today's Eleventh Circuit opinion in Netchoice v. Attorney General, by Judge Kevin Newsom, joined by Judges Robert Luck and Gerald Bard Tjoflat:
The State of Georgia recently enacted SB 351 to restrict minors' ability to create accounts on social-media platforms. The law requires platforms within its ambit to verify the ages of all their users, to prohibit minors under the age of 16 from creating accounts without their parents' consent, and to limit the personal data they use to display ads to users under 16.
The court held that Netchoice hadn't introduced enough evidence to show the law was facially unconstitutional:
Even in First Amendment cases, where the facial-challenge bar is lower than it otherwise might be, the plaintiff [in a facial challenge] must show that "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Netchoice v. Moody …
To discharge its facial-challenge burden, NetChoice must provide the reviewing court with the data—either hard facts or, at the very least, sufficient briefing—necessary to conduct the Moody-required comparative analysis. It hasn't done so here. Indeed, NetChoice hasn't provided even a full list of its own members to which SB 351 applies. Instead, it has provided only an exemplary few: SB 351, NetChoice says, "regulates some websites operated by NetChoice members, including: (1) Dreamwidth; (2) Meta (Facebook and Instagram); (3) Nextdoor; (4) Pinterest; (5) Reddit; (6) Snap Inc. (Snapchat); (7) X; and (8) YouTube," as well as "new members … such as Tumblr." And though NetChoice contends that, in addition to its own members, SB 351 regulates "other covered 'social media' websites," it doesn't name any that (in whole or in part) host unprotected speech. In that respect, we think, NetChoice makes the same mistake that it made before in Moody: treating the law as having "certain heartland applications" and "mostly confin[ing its] battle to that terrain."
From U.S. v. California, decided yesterday by Ninth Circuit Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:
Section 10 [of the California "No Vigilantes Act"] requires any non-uniformed "federal law enforcement officer" operating in California, with narrow exceptions, to "visibly display identification" while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State.
We previously granted the United States's motion for an injunction pending appeal. As before, we conclude that … § 10 of the No Vigilantes Act attempts [in violation of the Supremacy Clause] to directly regulate the United States in its performance of governmental functions, and Congress has not authorized such regulation. Indeed, we conclude that the United States is certain to succeed….
"[U]nder the intergovernmental immunity component of the Supremacy Clause to the United States Constitution, states may not directly regulate the Federal Government's operations or property." "It is of the very essence of supremacy," the Supreme Court has emphasized, "to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." To that end, "states have no power" to "in any manner control[ ] the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government." And "where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free' of regulation" by the States.
A federal judge referred Philadelphia District Attorney Larry Krasner and one of his deputies to the Department of Justice for potential prosecution for alleged misconduct. In response, Krasner's office filed a motion seeking to force the Judge--Paul Diamond--from a case involving his office.
Yesterday, Judge Diamond rejected the Philly DA's motion with a terse and forcefully worded order.
Here, from the order, is some background:
In the last two years, the Third Circuit, this Court, and the Philadelphia Common Pleas Court have condemned as dishonest repeated post-trial concessions of relief made by the Philadelphia District Attorney's Office. . . . The Pennsylvania Supreme Court was so concerned that it took the remarkable step of ordering all Philadelphia Common Pleas Judges to seek the Pennsylvania Office of Attorney General's intervention whenever the DAO made a post-trial concession, so that the Attorney General could confirm the concession's honesty. . . .
The DAO's present post-trial concession is also remarkable: Here, four DAO supervisors credibly testified that the District Attorney himself and his lieutenant, Assistant District Attorney Matthew Stiegler, urged them to make false representations to this Court to "protect the office." According to "the Four," the District Attorney threatened them with "consequences" if they did not. Because these and related accusations, if true, could amount to criminal misconduct, I disqualified the District Attorney and Stiegler from participating further in this case and referred the matter to the Department of Justice for investigation. In the DAO's newly-filed Motions and the District Attorney's unsworn "Declaration"—all of which generate more heat than light—the DAO seeks my recusal from all matters in which the Office appears and asks me to reconsider my rulings in this case. I decline to do either.
And on the merits of the recusal request, here is what Judge Diamond had to say:
The plaintiff, Jane Doe, instituted the present action seeking a Bill of Discovery from defendant Sacred Heart University (Sacred Heart), The national Chapter of Phi Sigma Sigma Fraternity, Inc., and The IOTA NU Chapter of the Phi Sigma Sigma Fraternity. The plaintiff's complaint alleges that in the Fall of 2025 she was involved in an incident with an underclassman during pledge week in which she was video recorded encouraging a Phi Sigma Sigma Fraternity pledge to drink alcohol (the hazing incident). The incident is detailed at paragraphs 11-15 of her complaint. The video was subsequently circulated around campus.
The plaintiff alleges that she became the subject of harassment and cyberbullying as a result of the publication of the hazing incident and that the defendants failed to conduct any meaningful investigation into her complaints. The plaintiff also alleges that she became the subject of improper disciplinary hearings and was left with no choice but to withdraw from Sacred Heart. The plaintiff seeks records related to the defendants' investigation into the hazing incident and the retaliation (which consisted of anonymous cyber bullying) which led to her "constructive expulsion" from the school.
The plaintiff further alleges that as a result of this retaliation, she began to suffer from severe anxiety and depression. The plaintiff seeks to proceed with her action for a Bill of Discovery by using a Pseudonym.
I gave a lecture at Stanford Law School last week on a Fourth Amendment topic that has drawn recent attention: How Should Flock Cameras Be Regulated Under the Fourth Amendment? The video has now been posted, and you can watch the 35-minute lecture, plus 10 minutes of Q&A, starting at the 7:30 mark in the video below.
I will probably write a short essay about these topics over the coming weeks, focusing on the latter half of the lecture, so any feedback among those who have watched the lecture is very welcome. Thanks.
Recent political developments have rekindled longstanding debates over "fusionism," the combination of libertarianism and conservative traditionalism that dominated the American right from roughly the late 1970s through the early years of this century. That dominance has been severely undermined and likely overthrown by the rise of nationalism and "postliberalism." But some would like to revive it. Reason editor Stephanie Slade's important new book Fusionism: Liberty, Virtue, and the Future of the American Rightoutlines one notable case for such a revival.
I agree with Slade, Jonathan Adler, and others that fusionism is far preferable to nationalism and postliberalism. But I am skeptical about its political viability. In addition, fusionism has significant conceptual flaws. Finally, at least in the short to medium term future, an alliance with "abundance liberals" is probably a more promising political strategy for libertarians than a revival of fusionism.
Despite my relative skepticism about a revival, I readily acknowledge fusionism's significant past achievements, and ongoing superiority over various other tendencies on the conservative right. Between the 1970s and the early 2000s, fusionist conservatives and libertarians (sometimes with the help of moderate/"neoliberal" Democrats) made huge contributions to such achievements as deregulation of many sectors of the economy, reducing tax rates, reinvigorating constitutional protection for property rights and limits on federal government power, and the West's triumph in the Cold War. While early fusionists sometimes undervalued the Civil Rights movement and were soft on racism, over time most of them came to promote color-blindness and and abjuring racial and ethnic discrimination in government policy. They even, for a long time, succeeded in making racial and ethnic color-blindness the dominant approach to such issues in the conservative movement. William F. Buckley and other fusionists also worked to purge the political right of its longstanding tendencies towards anti-Semitism. In combination, these are no small achievements.
The Rise of Right-Wing Nationalism and Postliberalism
Instead of color-blindness and nondiscrimination, we now have a conservative movement increasingly permeated with racial and ethnic bigotry and anti-Semitism of the kind fusionists sought to purge. Prominent right-wing "influencers" go so far as to claim we need to bar Indian immigrants because they work too hard and undermine the objectives of "homogeneity" and "maintain[ing] a white majority in the country." Many congressional Republicans also promote religious discrimination in immigration and other policies. In foreign policy, Trump has undermined relations with liberal democratic allies like Canada, Australia, and the nations of the European Union, and kowtowed towards illiberal nationalist authoritarians like Vladimir Putin.
Trump's idiosyncratic personal predilections contribute to some of these developments. But most arise from inherent tendencies of nationalism, which gravitates towards a zero-sum view of the world that leads to expanded government control of the economy, repression of racial and ethnic minorities, undermining civil liberties, and authoritarianism.
The "postliberalism" advocated by many leading right-wing intellectuals and activists is just as bad. Postliberals like Adrian Vermeule and Patrick Deneen are very clear about their desire to massively expand government control over the economy and civil society, and destroy both economic and personal liberties. Unlike nationalism, postliberalism has little mass public support. But it does have considerable influence among the intellectuals and activists who may staff future Republican administrations and congressional offices.
Illiberal big-government nationalism holds a strong sway over the Republican base. The 2024 election dramatically illustrates that. In the 2024 GOP presidential primary, Trump was challenged by Nikki Haley (a prominent advocate of traditional fusionism) and Ron DeSantis (popular governor of a major red state who tried to, in effect, split the difference between MAGA nationalism and pre-2016 conservatism). And, yet, despite the events of January 6, 2021 and numerous scandals, Trump not only beat these opponents, but did so very easily. While that was partly due to his particular type of charisma, it also highlights the influence of illiberal nationalism over the GOP. Even now, with Trump increasingly unpopular, most congressional Republicans shy away from challenging his worst policies, for fear of losing to MAGA types in GOP primaries. Many of those who are willing to challenge him on major issues have either been ousted in GOP primaries (like Rep. Thomas Massie), or chose not to run for reelection because of the likelihood of suffering that fate (e.g. - Rep. Don Bacon).
Facing a difficult political environment in the 2026 midterm elections, some congressional Republicans have become more willing to criticize a few of Trump's policies, such as the badly mismanaged Iran War. But very few have repudiated his big-government nationalism across the board or called for a return to fusionism.
Perhaps this will all change once Trump leaves the scene. But we shouldn't count on it. At this point, the major likely contenders for the 2028 GOP presidential nomination - Vice-President J.D. Vance and Secretary of State Marco Rubio - seem like they are vying for the mantle of inheritors of Trump's worst tendencies, not opponents of them.
Inherent Limitations of Fusionism
Even if fusionists do manage to regain control of the Republican Party and the conservative movement, the ideology's inherent limitations might undermine its value. The extent to which fusionism is compatible with strong protections for economic and personal liberty is actually ambiguous. Frank Meyer, a key founder of fusionism in the 1950s and 60s, famously argued that liberty and virtue are mutually reinforcing because liberty is what enables people to be truly virtuous. A person who only does the right thing because he is forced to by the state isn't truly virtuous at all. Think, for example, of a man who only refrains from violence and theft for fear of going to prison. A paragon of virtue he is not.
This position has considerable merit. But most social conservatives, including many otherwise sympathetic to fusionism, don't fully buy it, or even come close. They argue that, at least in many instances, we want to achieve virtuous behavior, regardless of the motivation for it. Or, at least, that doing the right thing for a bad reason is far preferable to not doing it at all. Thus, if you believe that using pornography, prostitution, gambling, taking various drugs, and so on are inherently immoral, then you may well advocate using government power to suppress these activities, even if people who only refrain out of fear of punishment are not as virtuous as those who abjure them voluntarily.
Many conservative fusionists do, in fact, believe that a wide range of consensual activities like the above are inherently evil. Alternatively, many believe that we have to suppress at least some of them out of paternalism. For example, they argue we must suppress drugs, prostitution, and gambling, because people who do these things don't understand what's good for them.
For these reasons, most conservative fusionists have in fact been willing to endorse many policies that severely curtail liberty. Even Ronald Reagan - the president whose administration most exemplified fusionism - promoted a major expansion of the War on Drugs, a federal policy that massively curtails liberty by killing or imprisoning hundreds of thousands people merely because they have used, possessed, or distributed substances the government considers too risky. Reagan's drug policies were not as bad as Trump's policy of outright murdering supposed drug dealers in the Caribbean and Pacific. But they were very bad, even so - and a striking example of the limitations of fusionism.
Elsewhere, I have argued that, at this moment in political history, the best available potential allies for libertarians are "abundance liberals." They are by no means perfect. But they agree with us - to a large extent - on numerous major issues, including trade, immigration, nuclear power, "YIMBY" housing deregulation, and more. And, like us, they tend to oppose both left and right-wing ethnic identity politics (on which latter point see recent articles by Matt Yglesias and Kelsey Piper). On the whole, they are less paternalistic and less prone to advocate suppression of consensual activities than most fusionist conservatives. They also have considerably greater influence over the Democratic Party and the political left, generally, than fusionists currently have in the Republican Party and the conservative movement.
The left, of course, has its own dangerous illiberal menace in the form of "democratic socialists," whose statism has much in common with that of MAGA nationalists. But this faction is nowhere near dominating the Democratic Party and the political left to the degree that nationalists have come to dominate the right.
None of this proves that libertarians cannot continue work with fusionist conservatives at all. There are many issues on which there is still room for cooperation. I myself have worked with such conservatives in the Society for the Rule of Law, and in the effort to combat Trump's tariffs (where they played crucial roles in the litigation that led to the invalidation of Trump's IEEPA tariff power grab by the Supreme Court and in currently ongoing efforts to challenge his attempts to use other laws to reimpose sweeping tariffs). Some conservative fusionists are more pro-liberty than others. And, for most, there is considerable variation across issues.
And, perhaps, things will be different in a decade or two. The Trumpist moment in right-wing politics may dissipate over time, though it seems unlikely to do so quickly.
Productive cooperation between libertarians and (some) conservatives is still very much possible. But we should recognize that fusionists are unlikely to regain control over the conservative movement anytime soon, and that fusionism has notable inherent limitations. Thus, we should look for other allies, and carefully limit the percentage of our eggs that we put in the fusionist basket. At this point, it cannot safely hold very many of them.
A short excerpt from today's longish Tenth Circuit opinion in VoteAmerica v. Schwab, by Judge Timothy Tymkovich, joined by Judges Michael Murphy and Joel Carson:
To reduce voter confusion and increase confidence in elections, the Kansas legislature prohibited private parties from partially prefilling applications for mail ballots before those applications are sent to registered voters. VoteAmerica and Voter Participation Center sued, alleging that the restriction infringed on their freedom of speech guaranteed by the First Amendment….
Relying on the political reaction against mail-in voting and Kansas's failure to prove an adequate fit between its stated interests and the Prohibition, the [district] court concluded that Kansas enacted the Prohibition to suppress speech supporting mail-in voting. Applying strict scrutiny (and intermediate scrutiny in the alternative), the court concluded that the law failed because it was not sufficiently tailored….
[W]e REVERSE the district court's judgment. The district court found an improper purpose without evidence from the Prohibition's justifications, text, or legislative history; it instead inferred an improper purpose from the national political debate on mail-in voting. That finding was in error. Because the Prohibition was enacted without an improper purpose, we apply intermediate scrutiny and find the Prohibition constitutional….
Some short excerpts from the long opinion in Computer & Comm. Indus. Ass'nv. Uthmeier, decided today by Judge Kevin Newsom, joined by Judges Robert Luck and Gerald Bard Tjoflat:
One of the most pressing is how and in what ways social-media use affects minors. According to the State of Florida, social-media companies seed their platforms with "addictive features"—push notifications, auto-play, infinite scrolling, etc.—in order to make them, well, addictive. These features, the state says, are "psychological hooks" that "overstimulate the reward center in the brain" and "foster compulsive overuse." Florida insists that children are particularly susceptible to these "addictive features" because their brains are still developing. In particular, the state contends, the features contribute to "[c]ompulsive or uncontrollable" social-media use among children and threaten a "youth mental health crisis." Children face "'sleep problems, attention problems, and feelings of exclusion,' all of which put [them] at risk of 'depression, anxiety, and neuroticism.'"
In an effort to protect children from social-media addiction and its ensuing effects, Florida passed HB3, which imposes age-restriction requirements on platforms that use "addictive features." In particular, HB3 requires platforms within its ambit to prohibit anyone under the age of 14 from creating an account, and to prohibit anyone else under 16 from doing so without parental consent….
[W]e hold that HB3 likely passes First Amendment muster because it is a content-neutral speech regulation that satisfies intermediate scrutiny….
The court held that HB3 was a speech restriction and thus implicated the First Amendment:
On September 25, 2026, this Court issued a "bottom-line" Order granting in part and denying in part the motion of defendants FirstBank Puerto Rico and First Bancorp (collectively "FirstBank") to dismiss the complaint brought by plaintiff Julia Molchonova. This Opinion sets forth the reasons for that Order….
An excerpt of Molchonova's allegations (which are just allegations at this stage):
Molchonova, who was one of Epstein's victims, alleges that FirstBank participated in, and benefited from, Epstein's vast criminal enterprise in violation of federal and local law…. As alleged, FirstBank maintained dozens of accounts for Epstein, his entities, and his agents, facilitated millions of dollars in transfers to and from these accounts, and served as a banking reference for Epstein when he sought to charter his own banking entity. These services, among others, were "integral in helping [Epstein] fuel his international sex trafficking operation." …
The court allowed Molchonova's claim under the Trafficking Victims Protection Act ("on behalf of a putative class of Epstein victims") to go forward:
As this Court recently explained, the TVPA imposes civil liability on any "person or entity that knowingly benefits, or attempts or conspires to benefit, financially or by receiving anything of value from participation in a venture which that defendant knew or should have known has engaged in an act in violation of the TVPA." Participant liability "involves three elements: first, that the defendant participated in a commercial sex trafficking venture; second, that the defendant knew or should have known that the venture either involved the perpetrator's use of force, the threat of force, fraud, or coercion to cause the victims to participate in sex or that the venture involved sex with victims who were under the age of 18; and third, that the defendant benefited from its participation in the venture." …
The right to keep and bear arms has limits, and this is one: Those who pose a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality. Not every convict poses such a risk—but James Bost does. He pleaded guilty to terroristic threats and other crimes. Years later, police caught him with a pistol not once, but twice. So he was charged with having a gun despite his convictions, in violation of 18 U.S.C. § 922(g)(1), which makes it illegal for felons to have guns….
But Bost's violent conviction is prima facie enough to disarm him. We hold that some predicate crimes (like Bost's conviction for terroristic threats) demonstrate a prima facie risk of physical violence from misusing guns and that those convicted of such crimes may presumptively be disarmed based on those convictions alone….
In 2002, Bost carjacked someone, threatening to kill the driver unless she gave him money. To get that money, he drove to her mother's home, where she escaped from the car, screaming for help. Bost was then arrested and pleaded guilty to terroristic threats and criminal conspiracy (as well as false imprisonment and simple assault). Those first two Pennsylvania crimes are first-degree misdemeanors punishable by up to five years in prison. One element of the terroristic-threats crime required "a threat to commit any crime of violence with intent to terrorize another." Bost was sentenced to four years' probation.
Later, while on bail for another arrest, Bost failed to appear in court. U.S. Marshals tracked him down. They found him in his girlfriend's home, next to a couch with a stolen .38 caliber pistol on it. Bost was indicted federally for possessing a stolen gun and possessing a gun despite his convictions (based on the terroristic-threats and conspiracy convictions). He moved to dismiss the indictment, arguing that § 922(g)(1) [the federal bans on felons possessing guns -EV] is unconstitutional as applied to him and that it is facially unconstitutional….
The court held that the case against Bost could go forward:
I'm interviewed about this roughly at about 3:15 to 6:30 of this episode of PBS's Civics Made Easy series. Unfortunately, they couldn't include all my discussion of the historical support for my view, so I thought I'd reprise below an earlier post of mine on the subject.
* * *
The U.S. Is Both a Republic and a Democracy
Don't just take it from me; take it from the Framers and other early American statesmen: "Democracy" has long included representative democracy as well as direct democracy, and "Republic" was used to refer to regimes that were not representative.
[1.] I often hear people argue (often quite militantly) that the United States is a republic, not a democracy. But that's a false dichotomy. A common definition of "republic" is, to quote the American Heritage Dictionary, "A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them"—we are that. A common definition of "democracy" is, "Government by the people, exercised either directly or through elected representatives"—we are that, too.
The United States is not a direct democracy, in the sense of a country in which laws (and other government decisions) are made predominantly by majority vote. Some lawmaking is done this way, on the state and local levels, but it's only a tiny fraction of all lawmaking. But we are a representative democracy, which is a form of democracy.
[2.] And the same two meanings of "democracy" (sometimes direct democracy, sometimes popular self-government more generally) existed at the founding of the republic as well. Some framing-era commentators made arguments that distinguished "democracy" and "republic"; see, for instance, the Federalist (No. 10), as well as other numbers of the Federalist papers. But even in that era, "representative democracy" was understood as a form of democracy, alongside "pure democracy": John Adams used the term "representative democracy" in 1794; so did Noah Webster in 1785; so did St. George Tucker in his 1803 edition of Blackstone; so did Thomas Jefferson in 1815. Tucker's Blackstone likewise uses "democracy" to describe a representative democracy, even when the qualifier "representative" is omitted.
