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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
National and Local Traditions for the Second Amendment
The Second Amendment does not have a geography clause.
On Tuesday, the Supreme Court heard argument in Wolford v. Lopez. Most Second Amendment cases focus on who can carry arms or what kind of arms they can carry. But Wolford focuses on where people can carry. Heller and its progeny held that carry can be prohibited in certain "sensitive places." But Wolford goes beyond that rubric. Hawaii law provides that for businesses that are generally open to the public, affirmative permission must be granted to carry a firearm. This permission can be granted through a posted sign or oral consent.
One fascinating aspect of the argument focused on tradition. Is it the tradition of the nation? Or is it the tradition in Hawaii? The history of Hawaii, which was admitted to the Union in 1959, makes it somewhat unique. Until Bruen, there was no custom of carrying weapons in Hawaii.
During several colloquies, Justice Sotomayor insisted that the Court should focus on the local tradition in Hawaii. She favorably cited Justice Holmes's opinion in McKee v. Gratz (1922). If your best authority is a Holmes opinion from 1922, you are probably on a shaky footing.
Sotomayor pushed the point about Hawaiian tradition:
JUSTICE SOTOMAYOR: Nothing about Hawaii's customs, tradition, or culture creates an expectation that the general public carries guns wherever they go, correct?
Alan Beck, counsel for the plaintiffs, responded that the local customs do not matter.
MR. BECK: Hawaii is part of the United States, and as part of the United States, our national tradition is that people are allowed to carry on private property that is open to the public.
Then there was some cross-talk, without any clear resolution.
MR. BECK: As --Hawaii is part of the United States, Your Honor, and as the -
JUSTICE SOTOMAYOR: But, if it's a local custom that controls -
MR. BECK: It is not a local custom that controls.
JUSTICE SOTOMAYOR: I --I -
MR. BECK: It is the custom -
JUSTICE SOTOMAYOR: Where else in the law have we permitted local custom to create a constitutionally protected right?
MR. BECK: Bruen was very clear here that we're dealing with our national tradition, Your Honor. It is not local custom that controls in this area of law.
I think Beck is right. Perhaps this question can be understood in terms of the equal footing doctrine. When territories enter the republic as states, they enter on equal footing to the original thirteen colonies. But with that great power comes a great responsibility. Those new states are now subject to the same national traditions that bind all of the prior states. This approach may be inconsistent with modern conceptions of multiculturalism, but out of many states comes one republic.
Sarah Harris, the Principal Deputy SG, offered a similar response to Justice Sotomayor.
JUSTICE SOTOMAYOR: Just as here, where most property owners for 200 years didn't carry weapons in this state without an owner's consent. That's the presumption of the Hawaiian people.
MS. HARRIS: So two points on that, one with respect to the presumption of the Hawaiian people. As Petitioner notes, there is no Second Amendment for every single state in the union that's different. It is a national tradition, and states cannot retain their pre-statehood traditions as sort of a --a veto for the Second Amendment national tradition.
Perhaps we could push the localism question a bit further. Why should the tradition be confined to the state? Why shouldn't an urban area like Manhattan have a different custom than rural areas in upstate New York?
In one of my first law review articles, The Constitutionality of Social Cost, I asked whether the Second Amendment has a "geography clause"--a term I coined in a 2009 blog post. Here is an excerpt from my 2011 article from the Harvard Journal of Law & Public Policy.
Does the Constitution have a geography clause? This section explores whether the Second Amendment is a national right or a local right that can be limited based on circumstances, such as high crime. Proponents of the geography clause argument fall into two camps. First, Justice Stevens in McDonald contended that the Second Amendment as applied against the States should provide weaker protections than the Second Amendment as applied against the federal government.225 Justice Alito adequately rebutted this erroneous application of Justice Brandeis's laboratories of experimentation thesis and Justice Harlan II's never accepted incorporation jurisprudence.226 The other theory, advanced by Justice Breyer, contends that local municipalities should be able to consider whether an area has a high crime rate when construing the meaning of the Second Amendment.227 Although Justice Alito rejected Justice Stevens's two‐track approach to incorporation, he leaves open the door for localities to devise solutions to social problems that "suit local needs and values" according to certain limitations.228 This section considers the First and Fourth Amendments, which countenance locational rights that can vary based on location, and distinguishes those frameworks from the approach Justice Breyer seeks.
I thought Bruen emphatically rejected this argument that the meaning of the Second Amendment can very in different parts of the country. But apparently this issue is still up for debate.
Finally, I was amused by a comment from Chief Justice Roberts. He noted that Hawaii also has a very different tradition with respect to property rights.
CHIEF JUSTICE ROBERTS: Right. But let me just switch gears a little bit. You talked about the tradition in --in Hawaii. Hawaii, given its obvious origins and its --its admission to --to the United States fairly recently, has a totally different, in some areas, tradition and practice. The law of property in particular in Hawaii, I mean, for the longest time, maybe it's still the case, is that you don't own property, you get it on long-term lease as if you were, you know, a bank in a skyscraper in New York. That was the common method. And I wonder, I thought, you know, as mentioned earlier, it is part of the United States. And do we isolate, do we have different traditions in different states when it comes to applying Bruen?
Perhaps the Chief was thinking of Hawaii Housing Authority v. Midkiff (1984), which was decided three years after he clerked. If the Court is ever interested in overruling some more precedents, Midkiff, along with Berman v. Parker and Kelo v. City of New London, should make the list.
Second Amendment Roundup: Wolford and the government security principle for sensitive places
If a place is truly “sensitive,” the state must provide armed security.
Before the Supreme Court heard oral argument yesterday in Wolford v. Lopez, I covered a range of Second Amendment issues central and tangential to the dispute over Hawaii's no-carry default rule. In opposition to the Court's Bruen decision, Hawaii enacted a "Vampire Rule" requiring prior consent for a licensed armed person to enter private property open to the public. Think stopping at a gas station or convenience store.
One issue that was alluded to several times in the argument is the scope of the so-called "sensitive places" limitation on the Second Amendment's protections. Wolford is not really a "sensitive places" case—it is actually about the handful of places Hawaii did not separately declare "sensitive," since the no-carry-default rule applies only to places that the state has not made no-carry-no-matter-what. Nevertheless, it is quite probable that in dealing with the issue the Court will touch on, and possibly explain, its previous statements on the issue.
The Court's "sensitive places" dicta have been the source of some significant confusion for courts and litigants alike. In District of Columbia v. Heller, as it struck down D.C.'s handgun ban, the Court cautioned that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on … the carrying of firearms in sensitive places such as schools and government buildings." Later, in NYSRPA v. Bruen, the Court explained its statement in part as a way of demonstrating its historical method, writing that "although the historical record yields relatively few 18th- and 19th-century 'sensitive places' where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions." But Bruen cautioned, "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department."
This list of locations (which Bruen got from the article by David B. Kopel and Joseph Greenlee, The "Sensitive Places" Doctrine, Charleston L. Rev. 2018) -- legislatures, polling places, and courts -- has led to significant disagreement among judges and litigants, even litigants on the same side of the issue. What restrictions do those three places have in common?
In his article Dangerous, but Not Unusual, Georgetown JL&PP 2024, Mark W. Smith surveyed the variety of historical "principles" that were being advanced to unite these historical laws and to analogize to modern statutes. He catalogued and criticized arguments that defined "sensitive places" as (1) places where "core government functions" are carried out, (2) places that meet a "collateral damage test" because misuse of a firearm would seem to be particularly problematic there, (3) places where "vulnerable people" congregate (more an issue for the schools that Heller mentioned than the legislative assemblies mentioned in Bruen), and (4) places where people exercise other constitutional rights. Professor Smith rejected each of these principles with good reasons -- who is not "vulnerable" to the misuse of a firearm? and why should we make those targets softer? Instead, he suggests a fifth principle that fits the evidence better: the presence of comprehensive government security in those locations.
In addition to having certain objective benefits from a policy perspective—security at least minimizes the threat of an armed attack wherever the government disarms the law-abiding; it also allows the government to "put its money where its mouth is" when it comes to disarmament—this principle has the distinct advantage of fitting the historical facts. In the Ninth Circuit in Wolford (where the case really was a "sensitive places" challenge), historian Angus Kirk McClellan and a host of advocacy organizations filed an amicus brief in support of the government-security principle which laid out lengthy historical evidence that legislatures, courthouses and even polling places were provided with government security at the Founding.
McClellan will shortly be publishing on SSRN a compendium of additional research on this issue that provides further support for the government-security principle. McClellan has compiled evidence for all three locations demonstrating that everywhere "arms" were restricted in this way at the Founding, the restrictions were accompanied by security, usually armed security, from the government.
In a vivid demonstration of the principle, McClellan notes that while elected officials in the "Upper House" of Maryland's legislature in the 17th century could be armed with swords in their chambers, arms were even then prohibited in the "Lower House." That resulted, in an instance in 1682, in the Doorkeeper (i.e., guard) to the Lower House turning away members of the Upper House who were carrying both swords and a message from the governor, because entry with a sword "was contrary to the Antient rules & Custume of this house."
There are countless other compelling and illustrative anecdotes in McClellan's research, as well as a wealth of historical laws, all of which further solidifies the government-security principle. If the Court is going to wade into this issue in Wolford, they would do well to review this research.
Neal Katyal's Glock
The most iconic gun of the 1980s was the Glock. It was popularized in many rap lyrics because of its useful rhyme. Cypress Hill performed a song titled "Hand on my Glock." Bruce Willis, as John McClane, warned about the "Glock 7" in Die Hard 2:
"Luggage? That punk pulled a Glock 7 on me. You know what that is? It's a porcelain gun made in Germany. It doesn't show up on your airport X-ray machines here and it costs more than what you make in a month!"
Of course, there is no Glock 7. Glocks are not made of porcelain, but are made in Austria, and they will show up on airport x-ray machines. But it was still an iconic line.
I would recommend the fascinating book, Glock: The Rise of America's Gun, to learn more about this weapon.
Even three decades later, the Glock still maintains a hold on popular opinion. I find that whenever people who don't actually own a gun want to sound knowledgable, they talk about Glocks.
That background brings me to oral argument today in Wolford v. Lopez. This is an unusual Second Amendment case. In Hawaii, businesses have to affirmatively opt in to allow conceal carry. In other words, a person with a license can only enter a business that is open to the public if the business posts a sign. I'll write about the legal issue later. Here, I want to opine on the oral argument.
Neal Katyal argued the case on behalf of Hawaii. In years past, Katyal has been the de facto Hawaii Solicitor General. He argued Trump v. Hawaii, the travel ban case.
At two distinct points in the argument, Katyal referred to Glocks.
The first reference came during his prepared opening:
In some places, it's reasonable to assume guns are welcome. In others, it's pretty clear an invitation to shop is not an invitation to bring your Glock.
The second reference came during a page-long response to his former boss, Justice Kagan.
They're not going to realize that someone might have a concealed Glock on them and the like.
These references were completely gratuitous. There are many weapons one can conceal carry. In the first line, Katyal was making a poor attempt at rhyming. Glock rhymes with some words, but not with "shop." In the second line, "Glock" adds nothing.
Earlier this term, I watched Katyal argue the tariff case. I wrote that it "seemed like he was giving rehearsed answers." He also had several prepared attempts at humor that did not land. It turns out that Katyal had invited comedian John Mulaney to the Court that day. According to the Hollywood Reporter, Mulaney and Kayal are working on a TV show together about the Supreme Court:
And there, near the back, was John Mulaney. The comedian and actor, dressed in a sharp suit with a dark blue tie, was listening along as the justices pressed the lawyers on the legality of Trump's tariffs, according to multiple people in the room.
So…why was Mulaney there? The answer, it seems, lies with one of the attorneys litigating the case: Neal Katyal, who was representing businesses challenging the tariffs. Katyal and Mulaney are friends, with the comedian going on the attorney's podcast and Mulaney hosting Katyal on his Netflix talk show Everybody's Live earlier this year.
In fact, Katyal and Mulaney are working on a TV project together. Speaking at the Aspen Ideas Festival earlier this year, Katyal revealed some details on the collaboration.
"I'm actually writing a television show about the Supreme Court, it's kind of a West Wing for the Supreme Court," Katyal said. "I'm writing with John Mulaney and and it'll be out in a couple of years. But part of the idea is to try and use the arts to spur a conversation about what justice is."
Humor seldom works at the Court. Remember, in 2009 NBC was developing a show based on the life of Tom Goldstein, titled Tommy Supreme?
Press reports say the show will be called Tommy Supreme, but Goldstein says that's likely just a working title, according to Washingtonian's Capital Comment Blog.
"It makes no sense, so I'm sure it will change," Goldstein told the blog. "It can't possibly be real."
Variety also had the news, saying the show will be an "inverse House," depicting a likable guy in an unlikable profession. Writers are working on the pilot.
Whatever the writers came up with for that show could not be unreal than Goldstein's reality.
As Biggie said, "Just 'cause I joke and smoke a lot, Don't mean I don't tote the glock."
The Charter of the Board of Peace
The Times of Israel published the text of the Charter of the Board of Peace. As I suspected, this is a clear effort to supplant the United Nations.
CHARTER OF THE BOARD OF PEACE
PREAMBLE
Declaring that durable peace requires pragmatic judgment, common-sense solutions, and the courage to depart from approaches and institutions that have too often failed;
Recognizing that lasting peace takes root when people are empowered to take ownership and responsibility over their future;
Affirming that only sustained, results-oriented partnership, grounded in shared burdens and commitments, can secure peace in places where it has for too long proven elusive;
Lamenting that too many approaches to peace-building foster perpetual dependency, and institutionalize crisis rather than leading people beyond it;
Emphasizing the need for a more nimble and effective international peace-building body; and
Resolving to assemble a coalition of willing States committed to practical cooperation and effective action,
Judgment guided and justice honored, the Parties hereby adopt the Charter for the Board of Peace.
Article 1: Mission
CHAPTER I-PURPOSES AND FUNCTIONS
The Board of Peace is an international organization that seeks to promote stability, restore dependable and lawful governance, and secure enduring peace in areas affected or threatened by conflict. The Board of Peace shall undertake such peace-building functions in accordance with international law and as may be approved in accordance with this Charter, including the development and dissemination of best practices capable of being applied by all nations and communities seeking peace.
CHAPTER II
MEMBERSHIP
Article 2.1: Member States
Membership in the Board of Peace is limited to States invited to participate by the Chairman, and commences upon notification that the State has consented to be bound by this Charter, in accordance with Chapter XI.
Article 2.2: Member State Responsibilities
(a) Each Member State shall be represented on the Board of Peace by its Head of State or Government.
(b) Each Member State shall support and assist with Board of Peace operations consistent with their respective domestic legal authorities. Nothing in this Charter shall be construed to give the Board of Peace jurisdiction within the territory of Member States, or require Member States to participate in a particular peace-building mission, without their consent.
(c) Each Member State shall serve a term of no more than three years from this Charter's entry into force, subject to renewal by the Chairman. The three-year membership term shall not apply to Member States that contribute more than USD $1,000,000,000 in cash funds to the Board of Peace within the first year of the Charter's entry into force.
Article 2.3: Termination of Membership
Membership shall terminate upon the earlier of: (i) expiration of a three-year term, subject to Article 2.2(c) and renewal by the Chairman; (ii) withdrawal, consistent with Article 2.4; (iii) a removal decision by the Chairman, subject to a veto by a two-thirds majority of Member States: or (iv) dissolution of the Board of Peace pursuant to Chapter X. A Member State whose membership terminates shall also cease to be a Party to the Charter, but such State may be invited again to become a Member State, in accordance with Article 2.1.
Article 2.4: Withdrawal
Any Member State may withdraw from the Board of Peace with immediate effect by providing written notice to the Chairman.
CHAPTER III-GOVERNANCE
Article 3.1: The Board of Peace
(a) The Board of Peace consists of its Member States.
(b) The Board of Peace shall vote on all proposals on its agenda, including with respect to the annual budgets, the establishment of subsidiary entities, the appointment of senior executive officers, and major policy determinations, such as the approval of international agreements and the pursuit of new peace-building initiatives.
(c) The Board of Peace shall convene voting meetings at least annually and at such additional times and locations as the Chairman deems appropriate. The agenda at such meetings shall be set by the Executive Board, subject to notice and comment by Member States and approval by the Chairman.
(d) Each Member State shall have one vote on the Board of Peace.
(e) Decisions shall be made by a majority of the Member States present and voting, subject to the approval of the Chairman, who may also cast a vote in his capacity as Chairman in the event of a tie.
(f) The Board of Peace shall also hold regular non-voting meetings with its Executive Board at which Member States may submit recommendations and guidance with respect to the Executive Board's activities, and at which the Executive Board shall report to the Board of Peace on the Executive Board's operations and decisions. Such meetings shall be convened on at least a quarterly basis, with the time and place of said meetings determined by the Chief Executive of the Executive Board.
(g) Member States may elect to be represented by an alternate high-ranking official at all meetings, subject to approval by the Chairman.
(h) The Chairman may issue invitations to relevant regional economic integration organizations to participate in the proceedings of the Board of Peace under such terms and conditions as he deems appropriate.
Article 3.2: Chairman
(a) Donald J. Trump shall serve as inaugural Chairman of the Board of Peace, and he shall separately serve as inaugural representative of the United States of America, subject only to the provisions of Chapter III.
(b) The Chairman shall have exclusive authority to create, modify, or dissolve subsidiary entities as necessary or appropriate to fulfill the Board of Peace's mission.
Article 3.3: Succession and Replacement
The Chairman shall at all times designate a successor for the role of Chairman. Replacement of the Chairman may occur only following voluntary resignation or as a result of incapacity, as determined by a unanimous vote of the Executive Board, at which time the Chairman's designated successor shall immediately assume the position of the Chairman and all associated duties and authorities of the Chairman.
Article 3.4: Subcommittees
The Chairman may establish subcommittees as necessary or appropriate and shall set the mandate, structure, and governance rules for each such subcommittee.
CHAPTER IV-EXECUTIVE BOARD
Article 4.1: Executive Board Composition and Representation
(a) The Executive Board shall be selected by the Chairman and consist of leaders of global stature.
(b) Members of the Executive Board shall serve two-year terms, subject to removal by the Chairman and renewable at his discretion.
(c) The Executive Board shall be led by a Chief Executive nominated by the Chairman and confirmed by a majority vote of the Executive Board.
(d) The Chief Executive shall convene the Executive Board every two weeks for the first three months following its establishment and on a monthly basis thereafter, with additional meetings convened as the Chief Executive deems appropriate.
(e) Decisions of the Executive Board shall be made by a majority of its members present and voting, including the Chief Executive. Such decisions shall go into effect immediately, subject to veto by the Chairman at any time thereafter.
(f) The Executive Board shall determine its own rules of procedure.
Article 4.2: Executive Board Mandate
The Executive Board shall:
(a) Exercise powers necessary and appropriate to implement the Board of Peace's mission, consistent with this Charter;
(b) Report to the Board of Peace on its activities and decisions on a quarterly basis, consistent with Article 3.1(f), and at additional times as the Chairman may determine.
Article 5.1: Expenses
CHAPTER V-FINANCIAL PROVISIONS
Funding for the expenses of the Board of Peace shall be through voluntary funding from Member States, other States, organizations, or other sources.
Article 5.2: Accounts
The Board of Peace may authorize the establishment of accounts as necessary to carry out its mission. The Executive Board shall authorize the institution of controls and oversight mechanisms with respect to budgets, financial accounts, and disbursements, as necessary or appropriate to ensure their integrity.
CHAPTER VI LEGAL STATUS
Article 6
(a) The Board of Peace and its subsidiary entities possess international legal personality. They shall have such legal capacity as may be necessary to the pursuit of their mission (including, but not limited to, the capacity to enter into contracts, acquire and dispose of immovable and movable property, institute legal proceedings, open bank accounts, receive and disburse private and public funds, and employ staff).
(b) The Board of Peace shall ensure the provision of such privileges and immunities as are necessary for the exercise of the functions of the Board of Peace and its subsidiary entities and personnel, to be established in agreements with the States in which the Board of Peace and its subsidiary entities operate or through such other measures as may be taken by those States consistent with their domestic legal requirements. The Board may delegate authority to negotiate and conclude such agreements or arrangements to designated officials within the Board of Peace and/or its subsidiary entities.
Article 7
CHAPTER VII-INTERPRETATION AND DISPUTE RESOLUTION
Internal disputes between and among Board of Peace Members, entities, and personnel with respect to matters related to the Board of Peace should be resolved through amicable collaboration, consistent with the organizational authorities established by the Charter, and for such purposes, the Chairman is the final authority regarding the meaning, interpretation, and application of this Charter.
CHAPTER VIII-CHARTER AMENDMENTS
Article 8
Amendments to the Charter may be proposed by the Executive Board or at least one-third of the Member States of the Board of Peace acting together. Proposed amendments shall be circulated to all Member States at least thirty (30) days before being voted on. Such amendments shall be adopted upon approval by a two-thirds majority of the Board of Peace and confirmation by the Chairman. Amendments to Chapters II, III, IV, V, VIII, and X require unanimous approval of the Board of Peace and confirmation by the Chairman. Upon satisfaction of the relevant requirements, amendments shall enter into force on such date as specified in the amendment resolution or immediately if no date is specified.
Article 9
CHAPTER IX-RESOLUTIONS OR OTHER DIRECTIVES
The Chairman, acting on behalf of the Board of Peace, is authorized to adopt resolutions or other directives, consistent with this Charter, to implement the Board of Peace's mission.
CHAPTER X-DURATION, DISSOLUTION AND TRANSITION
Article 10.1: Duration
The Board of Peace continues until dissolved in accordance with this Chapter, at which time this Charter will also terminate.
Article 10.2: Conditions for Dissolution
The Board of Peace shall dissolve at such time as the Chairman considers necessary or appropriate, or at the end of every odd-numbered calendar year, unless renewed by the Chairman no later than November 21 of such odd-numbered calendar year. The Executive Board shall provide for the rules and procedures with respect to the settling of all assets, liabilities, and obligations upon dissolution.
CHAPTER XI-ENTRY INTO FORCE
Article 11.1: Entry into Force and Provisional Application
(a) This Charter shall enter into force upon expression of consent to be bound by three States. (b) States required to ratify, accept, or approve this Charter through domestic procedures agree to provisionally apply the terms of this Charter, unless such States have informed the Chairman at the time of their signature that they are unable to do so. Such States that do not provisionally apply this Charter may participate as Non-Voting Members in Board of Peace proceedings pending ratification, acceptance, or approval of the Charter consistent with their domestic legal requirements, subject to approval by the Chairman.
Article 11.2: Depositary
The original text of this Charter, and any amendment thereto shall be deposited with the United States of America, which is hereby designated as the Depositary of this Charter. The Depositary shall promptly provide a certified copy of the original text of this Charter, and any amendment or additional protocols thereto, to all signatories to this Charter.
CHAPTER XII RESERVATIONS
Article 12
No reservations may be made to this Charter.
CHAPTER XIII-GENERAL PROVISIONS
Article 13.1: Official Language
The official language of the Board of Peace shall be English
Article 13.2: Headquarters
The Board of Peace and its subsidiary entities may, in accordance with the Charter, establish a headquarters and field offices. The Board of Peace will negotiate a headquarters agreement and agreements governing field offices with the host State or States, as necessary.
Article 13.3: Seal
The Board of Peace will have an official seal, which shall be approved by the Chairman.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this Charter.
KBJ Would Not Martinize IFP Petitioners In Criminal Cases
Justice Jackson would instead let "Court staff . . . sort out" meritless petitions.
On every Supreme Court order list, there is a familiar notation:
As the petitioners have repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioners unless the docketing fees required by Rule 38(a) are paid and the petitions are submitted in compliance with Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam)
I'll admit I've never actually read Martin. (I have read United States v. Detroit Timber & Lumber Co., if you get the reference.) Today, in Howell v. Circuit Court of Indiana, Justice Jackson issued a dissent opposing the application of Martin to IFP (in forma pauperis) petitioners who are in prison.
The history here is fascinating. In 1989, the Supreme Court for the first time issued a permanent denial of IFP status to Jessie McDonald, who filed 73 petitions for extraordinary writs over the course of two decades. As Justice Jackson notes, McDonald was attacking a conviction, but was no longer incarcerated. Two years later, the Court issued a similar bar to Michael Sindram who sought 43 extraordinary writs over the course of three years. And in 1992, the Court decided Martin. Here, the petitioner filed 54 IFP petitions in a variety of civil disputes. Jackson explained a shorthand that I had never heard:
Martin's circumstances lent this Court a useful shorthand: When we bar indigent litigants from filing any future in forma pauperis petitions, we now say that we are "Martinizing" them.
Martinizing. Kind of like Mirandizing or Simonizing.
But the Court didn't stop there. The Justices began to Martinize IFP petitions from prisoners. As a result, once barred, they could not challenge new conditions of confinement, or raise claims based on new precedent. Jackson relates that more than half of the petitioners over the past two decades who were Martinized were prisoners. Jackson found it unconscionable to apply this doctrine to prisoners, who might later have valid claims based on changed law. Indeed, numerous IFP petitioners have raised valid claims before the Supreme Court. What if they were barred by Martin? Jackson writes:
In short, because time moves on after a person is imprisoned and things happen, we simply do not and cannot know whether indigent prisoners who have filed multiple "frivolous" petitions in the past might have a meritorious claimin the future. When liberty, bodily integrity, or fundamental fairness is at stake, preventing such litigants from ever again accessing our review imperils our ability to provide equal justice for all.
No doubt the rationale behind Martin was to reduce the amount of Court time spent on frivolous petitions. How would Jackson resolve that issue? She would delegate the task to Court staff:
Meanwhile, the administrative burden involved in reviewing repeated (even frivolous) petitions filed by prisoners is minimal. It is the rare incarcerated person who has the wherewithal to flood the Court with filings, at least inthe way that Martin, Sindram, and McDonald had done. Practicalities ordinarily do not allow for this, since prisoners often lack regular access to paper, pens, envelopes, and stamps. Pro se prisoners also usually handwrite their filings—a time-intensive process. And, regardless, it is not difficult for Court staff to sort out in forma pauperis filings that raise new, potentially meritorious claims from repetitive, meritless petitions.
This last sentence is significant, as she pulls back the curtain. Jackson is acknowledging that the Justices will never even see these petitions. They will be sortedout. And the reference to staff, rather than clerks, suggests that the law clerks may not see it either. It could be that the clerk's office would perform this screen. I've found the employees in the clerk's office to be extremely professional, but their job is not to decide which constitutional claims might warrant Supreme Court review.
When I was clerking, staff attorneys would take the first stab at certain pro se cases. We found that work to be very inconsistent, and some cases that staff attorneys thought were meritless, the judge found had merit, and vice versa. I suppose Jackson's approach could work if the Justices and their clerks scrutinized every IFP petition. But I think the thrust of her comment is that sort of secondary review would not happen.
Ultimately, I agree with Jackson's complaint about Martin, but I am skeptical of her remedy.
In any event, every order list will now get a bit longer with a new Jackson notation. Consider this entry:
Justice Jackson, dissenting: I respectfully dissent from the order barring these incarcerated petitioners from filing future in forma pauperis petitions in noncriminal matters. See Howell v. Circuit Court of Indiana, 607 U. S. ___ (2026) (Jackson, J., dissenting).
Even where I disagree from Justice Jackson, I usually learn something new.
President Trump Repudiates Discovery Doctrine, Favors Acquisition By Conquest
Once again, Trump manages to make obscure law great again.
One of the most remarkable aspects of the Trump presidencies is how he makes so much obscure law return to the fore. It has been well documented how much of the Constitution Trump has implicated. Indeed, one could write an entire book about Trump and the Constitution. (I plan to write a trilogy on the topic.) But Trump also affects other aspects of the law.
The latest instance comes in comments Trump made about Greenland. Trump said:
"The fact that they [Denmark] had a boat land there 500 years ago doesn't mean that they own the land."
Of course, Trump is referring to the doctrine of acquisition by discovery. Chief Justice Marshall discussed this doctrine at length in Johnson v. McIntosh. Most 1Ls read this case in property. In this canonical decision, Marshall explained that European explorers "acquired" land in the Americas pursuant to the discovery doctrine. The discovery doctrine is the root of most property ownership of the United States. For whatever it is worth, the Vatican repudiated the discovery doctrine.
I'll admit I know little about the history to Greenland. I found an article (fittingly) titled "The Rediscovery of Greenland during the Reign of Christian IV." During the thirteenth and fourteenth centuries, there were Nordic settlements in Greenland. However, those settlements faded away by the early fifteenth century. Starting in 1605, the Danish king sent expeditions to Greenland. (This is likely the 500-year-old boat that Trump is talking about.) Danish claims to Greenland trace to this re-discovery.
Even as Trump rejects Denmark's claim to the land by virtue of the discovery doctrine, at same he asserted that the United States could acquire Greenland by conquest.
So far, Trump has not had much effect on my Property Law class, but that has now changed.
"The Buckley Principles," by Lee E. Goodman
"The core First Amendment principles of Buckley v. Valeo endure after fifty years."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by Lee E. Goodman, a partner at the Dhillon Law Group and a former Chairman of the Federal Election Commission:
I have been citing Buckley v. Valeo (1976) since I started practicing First Amendment law in 1990. Buckley has stood as the cornerstone of First Amendment jurisprudence in the field of campaign finance since 1976, so fundamental that every lawyer was expected to learn it and invoke it like a secular Bible.
No Supreme Court decision has been more significant in shaping the logic that constrains the government's efforts to restrict election campaign-related speech. Numerous Court decisions over the next five decades have built upon the principles established in Buckley, and it continues to guide First Amendment law to this day.
From the beginning, the decision was a thorn in the side of those who sought to restrict campaign speech in the name of "good government" and equitable objectives. Indeed, over the ensuing fifty years, there have been spirited efforts to reinterpret it, reverse it, and even to evade it by altering the First Amendment itself. Such advocates came close once, and only once, in McConnell v. FEC (2003), but have otherwise failed to displace Buckley's logic.
Free speech advocates have relied upon the speech protections established in Buckley and, in doing so, have successfully extended its logic to a broader realm of speech and speakers. The core principles set forth by the per curiam Court in Buckey have endured as the foundation for free speech rights and inspired a number of court decisions expanding free speech in election campaigns.
- Money is not speech, but a necessary tool of expression.
Free Speech, Religious Offense, and a Transatlantic Divide
Balancing free expression and the dignity of religious believers in Europe.
One of the most difficult areas in church–state law involves the conflict between freedom of speech and freedom of religion. In the United States, at least at the level of basic principle, that conflict has been largely resolved for decades. Ever since Cantwell v. Connecticut, we have accepted that people don't have a right to be free from criticism—or even offense—directed at their religious beliefs. Speakers may criticize religion, ridicule religious doctrines, and even confront believers directly, so long as they respect ordinary time, place, and manner restrictions and do not incite imminent violence.
In other words, in American constitutional law, freedom of speech generally trumps claims that religious sensibilities have been wounded. The First Amendment does not contain a right not to be insulted.
The situation in Europe is more complicated.
The European Court of Human Rights holds that states have a legitimate interest in protecting believers from gratuitous disrespect directed at their religious beliefs. As far back as the Otto-Preminger-Institut case, the ECtHR has indicated that freedom of expression does not include a right to insult religious beliefs in ways that undermine social peace or the rights of others. This concern applies to both majority and minority religions. The underlying idea is not that religion is immune from criticism, but that the state may regulate expression that crosses the line from criticism into deliberate and unnecessary insult.
Europe today is experiencing deep disagreements about religion's role in public life. What counts as legitimate critique to one audience may register as degrading or contemptuous to another. As a result, courts in Europe, including the ECtHR, are increasingly asked to draw difficult lines between public debate and pointless provocation.
I recently discussed this issue, among others, with Judge Ioannis Ktistakis of the ECtHR on a new episode of the Legal Spirits podcast. Towards the end of the episode, Judge Ktistakis identified this tension—balancing the right of believers to have respect shown to them and their beliefs against the competing right of free expression—as one of the major challenges facing the ECtHR today.
Readers interested in comparative church–state law may find the conversation illuminating, not only for what it reveals about the ECtHR's approach, but for what it tells us about the assumptions Americans often take for granted when thinking about free speech and religious freedom.
Justice Thomas, Joined by Justice Gorsuch, Argue for Broader Scope of Constitutional Ban on Ex Post Facto Laws
Brief excerpts from today's concurrence in Ellingburg v. U.S., though the whole opinion is worth a read:
I join the Court's opinion in full because it correctly applies our precedent. I write separately to clarify the foundation of that precedent. This Court's 1798 decision in Calder v. Bull established that the Ex Post Facto Clauses forbid only those retroactive laws that impose "punishment" for a "crime." Over the 228 years since Calder, the Court has struggled to articulate what it means for a law to impose punishment for a crime, and thus to be subject to the Ex Post Facto Clauses.
The Court's more recent precedents have implemented Calder through two multifactor tests that turn largely on whether the legislature labels the law as criminal or civil. But in 1798, "punishment" for a "crime" would have been understood to refer to any coercive penalty for a public wrong. Many laws that are nominally civil today would therefore have been subject to the Ex Post Facto Clauses under Calder. I would restore Calder's approach to the Ex Post Facto Clauses….
Calder's understanding secures Ex Post Facto Clause protection in a wide range of contexts involving nominally civil laws. Those contexts include civil proceedings seeking fines for public offenses. See, e.g., Army Corps of Engineers v. Hawkes Co. (2016) (describing "civil penalties of up to $37,500 for each day [the challenger] violated the Act"). They include enforcement proceedings brought by administrative agencies. See Axon Enterprise, Inc. v. FTC, 598 U. S. 175, 196 (2023) (Thomas, J., concurring) (describing the 20th-century rise of such proceedings). And they include municipal sanctions like speeding tickets. "If one were to commit a minor traffic offense at a time the offense was to be punished by a $25 fine, and the government were to then amend the statute and impose a fine of $1,000,000 dollars, it would be nonsensical to treat that fine as non-punitive simply because the offense was processed civilly." Brief for Professor Beth Colgan as Amicus Curiae. Because all of these offenses impose punishments for public wrongs, Calder would treat them all as subject to the Ex Post Facto Clauses.
Three Very Short SCOTUS Unanimous Opinions In One Day, But No Tariffs
The Tariffs case is still cooking, but the Court is clearing the brush.
Generally, at the end of June, there is a running angst for a pending significant case. It is unusual to have that sort of anticipation so early in the term, but here we are. In January, the Court has had three hand-down sessions. So far, eight signed opinions have been handed down. None of these cases have been particularly significant. And still not tariffs. The Court seems to have other priorities. You could imagine the Court saying that no other opinions will be issued until tariffs is released, but that has not been the plan.
What is the cause of the delay? Who knows. But let me offer some speculation. The longer this case goes, the more likely that Trump wins, at least in part. There is a stay in place, and new tariffs continue to be imposed. As the Court takes more time, the remedial issue becomes more complicated by the day. At the outset, the plaintiffs sought a preliminary injunction in light of irreparable harm. And as the Court takes more time to write and review, that irreparable harm becomes greater. This ruling does not need to be a ruling for the ages, so iterative rounds of revisions have a diminishing return. After the case was argued, I put the odds at 51/49 that Trump loses. I've now flipped to 51/49 that Trump wins, at least in part.
The three cases decided today were all very short and were unanimous.
Berk v. Choy was a 9-0 reversal. The majority opinion by Justice Barrett was 11 pages.
Ellingburg v. United States was a 9-0 reversal. The majority opinion by Justice Kavanaugh was 5 pages.
Coney Island Auto Parts Unlimited, Inc. v. Burton was a 9-0 affirmance. The majority opinion by Justice Alito was six pages long. Indeed, I watched the argument in Coney Island, which may have been the shortest oral argument in the modern era.
I can't recall a day with three majority opinions that were all unanimous and all so short. Also, I would note that Williams & Connolly was counsel in Coney Island and Ellingburg. Today was a good day for the Lisa Blatt and Amy Saharia.
"Lest We All Drown in a Sea of Slop"
From Kelleher v. Town of Brookfield, decided earlier this month by Judge Brian Murphy (D. Mass.):
Plaintiff's Complaint is more than 100 pages long, often repeating itself or presenting information piecemeal and out of order, to some sort of titanic effect. While the Court appreciates that there is a long history between these parties and that Plaintiff is a pro se litigant and so entitled to a fair amount of leeway, "[e]ven pro se litigants are bound by the Federal Rules of Civil Procedure," including Rule 8's requirement that pleadings be "short" and "plain," with allegations that are "simple, concise, and direct."
Of course, the Court is well aware that attorneys, too, have long and often violated this rule (sometimes at great profit). See, e.g., Trump v. New York Times Co. (M.D. Fla. 2025) (excoriating experienced counsel for submitting a complaint that was "decidedly improper and impermissible"). However, particularly as artificial intelligence makes the production of language cheaper and faster—undoubtedly a boon to those that have historically been unable to afford garrulous counsel—it will become increasingly incumbent upon courts to insist that parties respect our limited bandwidths, lest we all drown in a sea of slop.
The Court would not make an example out of this case. However, moving forward, the Court would ask that Plaintiff (or any other prospective filer) do his best to write plainly and precisely, trusting that the Court reads closely and is unmoved by too much rhetoric.
$300K Settlement Against Michigan State Over Elected Officials Allegedly Orchestrating Public Criticism of (and Racism Allegations Against) Professor
Besides the monetary settlement, MSU Trustee Dennis Denno signed a document stating,
Trustee Rema Vassar signed another stating,
While I maintain my rights to advocate for students and engage in robust debate on matters of institutional governance, I understand that the manner in which advocacy occurs matters, and I reaffirm my commitment to conducting board-related activities in ways that respect all members of the university community.
I remain committed to supporting students who seek to exercise their voices on campus while also acknowledging the complexities that arise when student advocacy intersects with faculty governance and board dynamics.
I did not intend to cause Dr. Lipton personal or professional harm and appreciate and respect Dr. Lipton's advocacy on behalf of MSU's faculty.
Moving forward, I hope all parties can focus on the important work of serving Michigan State University and its diverse community.
Here's my post on the legal issue from June:
[* * *]
Did Elected Officials Violate First Amendment by Orchestrating Public Criticism of (and Racism Allegations Against) Their Critic?
[Subtitle:] "[P]ublic condemnations, op-eds, and official complaints … through proxies are independent constitutional violations" if the officials "engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity."
Religious Employment and Title VII: Part 2—Reading the Exemption Textually
A textualist interpretation of Section 702 shows that the exemption applies when a religious employer confines employment to people who fit the employer's religious observances, practices, and beliefs.
In this second post summarizing our new article, we explain how textualism offers a compelling interpretive lens for reading the religious employer exemption of Title VII. Besides revealing the liberty-equality tensions discussed in Part 1, a close reading of Section 702's text vividly reveals the exemption's meaning and scope.
Here is Section 702's relevant language:
This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
Notice the opening phrase, "This subchapter shall not apply." Subchapter denotes Title VII and shall expresses a mandate.
Section 702 covers a "religious corporation, association, educational institution, or society." Title VII does not define these terms, but each had an established usage when Congress adopted the statute. Our article concludes that the exemption applies to a wide range of religious organizations—from churches and synagogues to religious schools to soup kitchens and other faith-based organizations.
Next, Section 702 applies when a religious organization's employees "perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." The term activities is unqualified by design. Originally, Title VII limited the exemption to employees who carry out "religious activities," but that qualification was later struck by a 1972 amendment. Section 702 covers all employees of a religious organization, regardless of whether they are engaged in religious activities.
We come to the decisive phrase. Section 702 applies "with respect to the employment of individuals of a particular religion." Each word matters.
Buckley v. Valeo: A Retrospective Series
The introduction to an Institute for Free Speech symposium, which I'll be cross-posting over the next couple of weeks.
By David Keating, the President of the Institute for Free Speech:
Fifty years ago this month, the U.S. Supreme Court issued its landmark ruling in Buckley v. Valeo. Fortunately for the free speech clause of the First Amendment, the Court invalidated crucial parts of the extensive 1974 amendments to the 1971 Federal Election Campaign Act (FECA).
To mark the January 30 anniversary of Buckley, the Institute for Free Speech and the Volokh Conspiracy today begin publishing a series of essays on the opinion, which will run through the anniversary date. We at the Institute recognize that this anniversary provides an opportunity to examine how Buckley safeguards the First Amendment rights that protect our ability to criticize, challenge, and ultimately improve our government.
And the pre-Buckley world looked quite different. Before FECA, U.S. campaign finance was largely unregulated. The 1974 amendments imposed restrictions on contributions and expenditures. Buckley largely upheld contribution limits but ruled that spending limits were unconstitutional.
Had the Court upheld the law in its entirety, Congress undoubtedly would have enacted even stricter laws to squelch critics. Numerous provisions of the pre-Buckley FECA posed a true threat to free speech, so it's not an exaggeration to say the decision saved that fundamental right.
Today in Supreme Court History: January 20, 1953
1/20/1953: President Eisenhower takes the inaugural oath on January 20. He would make five appointments to the Supreme Court: Chief Justice Earl Warren, and Justices John Marshall Harlan II, William J. Brennan, Charles Evans Whittaker, and Potter Stewart.
Open Thread
What’s on your mind?
"Miami Beach Police Chief Defends Detectives' Visit to Activist over Facebook Post About Mayor"
So WPLG Local 10 (Miami) [Ryan Mackey] reported Friday. Apparently,
[A] Facebook post by [Steven] Meiner, who is Jewish, … he described Miami Beach as "a safe haven for everyone," contrasting it with New York City, which he said was "intentionally removing protections" for and "promoting boycotts" of Israeli and Jewish businesses.
This led to a response from Miami Beach activist and past political candidate Raquel Pacheco:
The guy who consistently calls for the death of all Palestinians, tried to shut down a theater for showing a movie that hurt his feelings, and REFUSES to stand up for the LGBTQ community in any way (even leaves the room when they vote on related matters) wants you to know that you're all welcome here [followed by three clown emojis].
Police detectives came to her home; a video apparently shows one saying,
What we are just trying to prevent is somebody else getting agitated or agreeing with the statement, we are not saying if it's true or not.
The Miami Beach Police Chief responded with this statement:
Given the real, ongoing national and international concerns surrounding antisemitic attacks and recent rhetoric that has led to violence against political figures, I directed two of my detectives to initiate a brief, voluntary conversation regarding certain inflammatory, potentially inciteful false remarks made by a resident to ensure there was no immediate threat to the elected official or the broader community that might emerge as a result of the post. The interaction was handled professionally and without incident.
I had serious concerns that her remarks could trigger physical action by others.
At no time did the Mayor or any other official direct me to take action.
The Miami Beach Police Department is committed to safeguarding residents and visitors while also respecting constitutional rights.
