Today, is Juneteenth, the federal holiday commemorating the abolition of slavery - the greatest triumph of freedom in American history. In this post, I compile some links to my writings relevant to the holiday and its significance. All are posts published here on the Volokh Conspiracy blog, unless otherwise noted. Much of this is reprinted from last year's Juneteenth post. But I have added some new material.
"Reflections on Juneteenth," June 19, 2024. This post extends and elaborates on the points made in the 2021 post, and condemns the lame culture war over the holiday.
"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. This post - and Douglass's speech - are not about Juneteenth, as such. But they are obviously relevant. Douglass rightly argued that the principles of the Revolution required the abolition of slavery - while also condemning the hypocrisy of the many white Americans who claimed otherwise.
"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding arguments - advanced by critics on both right and left - that the Revolution did more harm than good. The claim that the Revolution somehow set back abolition is a central argument of many of those critics. I explain why that argument is wrong.
"Slavery and Birthright Citizenship," Lawfare, Mar. 16, 2026. Article on the relationship between the abolition of slavery and the Birthright Citizenship Clause of the Fourteenth Amendment, and its implications for the birthright citizenship case currently before the Supreme Court.
"Why George Mason is Extremely Underrated," Reason, June 16, 2026 (symposium on "1776 All-Stars"). Article on a leading Founding Father, including his somewhat internally contradictory attitudes towards slavery and record on that issue.
From Craghtten v. U.S., decided Wednesday by the Ninth Circuit (Judges Kenneth Lee, Gabriel Sanchez, and Holly Thomas):
Isaac Craghtten—a Canadian-born American Indian and a lawful permanent resident of the United States—tried to acquire a firearm at a gun store in Idaho. But he was unable to do so because he lacks an alien registration or admission number required of non-citizens to complete the federal Firearm Transaction Record Form 4473….
Form 4473's alien-number requirement for non-citizens comports with the Second Amendment. The Second Amendment guarantees that "the right of the people to keep and bear Arms, shall not be infringed." "Like most rights," however, "the right secured by the Second Amendment is not unlimited." U.S. v. Rahimi (2024) (quoting D.C. v. Heller (2008)). We have explained that "the plain text of the Second Amendment only prohibits meaningful constraints on the right to acquire firearms." Thus, "in assessing whether particular laws imposing conditions and qualifications on the commercial sale of arms implicate" the Second Amendment right, we analyze "whether a challenged regulation meaningfully impairs an individual's ability to access firearms."
The collection of alien-related information required under Form 4473 does not meaningfully constrain the right guaranteed by the Second Amendment. In U.S. v. Manney (9th Cir. 2024), we held that the Second Amendment did not bar a conviction under 18 U.S.C. § 922(a)(6) for making false statements on Form 4473. We rejected the broad proposition that any law "inhibit[ing]" a person's "ability to acquire arms by regulating the purchase of firearms" violates the Second Amendment. Such a rule would mean that "even asking an individual to fill out the ATF 4473 form" would "come under [the] Second Amendment's plain text." Rather, we concluded that the false-statements prohibition permissibly "regulates statements made by the individual purchasing a firearm to ensure that a purchaser is not lying to a firearms dealer about who is purchasing the firearm."
I am happy to pass along this guest post from my frequent collaborator, Elliott Wainwright.
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At oral argument in Trump v. Barbara, Justice Amy Coney Barrett askedseveraltimes how the Citizenship Clause works when members of Indian tribes are born beyond the limits of tribal domains. The peculiar Oregon Territory citizenship statute Congress passed in 1872 and the effect it had—or ought to have had—on the citizenship status of tribal Indians born in that territory appears to bear on Justice Amy Coney Barrett's inquiry. However, despite the fact that JohnVlahoplus and Michael L. Rosin have written about the 1872 law in recent years, it seems to have gone unmentioned in litigation over President Trump's January 2025 executive order regarding citizenship at birth. Nor was it put under the microscope in United States v. Wong Kim Ark or Elk v. Wilkins, the Supreme Court's flagship Citizenship Clause cases.
Since July 1868, the 14th Amendment's Citizenship Clause has proclaimed that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
In May 1872, Congress passed the first citizenship statute that adopted the Clause's "subject to the jurisdiction" locution, providing:
"That all persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States at this time, are citizens of the United States in the same manner as if born elsewhere in the United States."
Section 1995 of the Revised Statutes, which continued the 1872 law, replaced "at this time" with "on the 18th May, 1872."
The catalyst for the 1872 Oregon Territory citizenship statute was U.S. District Judge Matthew Deady's November 1871 determination in McKay v. Campbell that William McKay was not a U.S. citizen. Within four months, one of Oregon's senators had proposed a bill to bestow U.S. citizenship on anyone born in the Oregon Territory between 1818 and June 1846 to British fathers and Indian mothers. But these temporal and parental limitations fell by the wayside. Under the 1872 law, the only requirements that needed satisfying were birth in the territory and being "subject to the jurisdiction of the United States at this time." The latter stipulation, though clearly modeled on the Citizenship Clause, conditions the grant of citizenship on jurisdictional subjection at the time of enactment rather than at the moment of birth.
Litigants challenging the executive order have disagreed about whether Elk v. Wilkins furnishes a rule for off-reservation births. Quizzed by Justice Barrett on whether the rule for tribal Indians was "tied to territory or [] tied to the status of someone as a member of a tribe," respondents' counsel Cecillia Wang stated that "Elk versus Wilkins doesn't really answer that question." Last year, the Solicitor General of the State of Washington told the U.S. Court of Appeals for the Ninth Circuit that Elk v. Wilkins compelled the view that a tribal Indian born in Seattle acquired U.S. citizenship pursuant to statute rather than the Citizenship Clause.
Law professors Akhil Amar and Vikram Amar championed a tidily territorial reading of the Citizenship Clause in their SCOTUSBlog Brothers in Law columns:
Surely there were countless situations in which tribally allegiant parents gave birth outside the soil of tribal enclaves. On our under-the-flag, soil-and-flag theory, these babies were all proper 14th Amendment citizens. They were, we believe, so treated by all branches of the American government at all relevant times.
In their view, the 14th Amendment grants citizenship at birth nearly universally beyond the limits of Indian domains, but withholds it entirely within them. If the Clause operates in this fashion, it would be logical for the 1872 Oregon Territory citizenship law to do so as well.
Government records attest that not all of Oregon's Indians were on reservations in May 1872. Six Oregon-born Indians were in the state penitentiary. Two of the six, per an account of their 1871 trial, were affiliated with the Simcoe reservation in Washington and had been convicted of attempting to execute a medicine woman on the orders of their chief. (A more legible copy is available from newspapers.com: Letter from Yamhill, Morning Oregonian (Portland, Ore.), Vol. 11, No. 65, Apr. 21, 1871, at 1.) In August 1872, the Klamath Indian Agency reported:
A portion of the Modoc band of Indians, under Captain Jack, who were parties to the treaty, and belong on this reservation, and were formerly here, went back to their old homes on Lost River, some fifty miles south from this place, about two years ago and refuse to come back, although repeated councils have been held with them for the purpose of inducing them peaceable to return.
In a section of his 1872 report entitled "Indians not on Reservations," the Superintendent of Indian Affairs in Oregon estimated that some five hundred of the Indians attached to Smohalla "belong at" either the Umatilla or Warm Springs reservation.
Judge Deady himself encountered cases of Oregon Indians living beyond the limits of reservations in 1872 in United States v. Osborn, over which he presided in April 1880. The defendant, Frank Osborn, was prosecuted for "having disposed of spirituous liquor to an Indian, under the charge of an Indian agent, contrary to section 2139 of the Revised Statutes." Judge Deady's opinion relates that the case concerned a sale to Joe Miller, an Indian who had been residing away from the Warm Springs reservation for more than eight years. The opinion also alludes to Indian Jim and his fifteen years' residence away from "one of the coast reservations." Judge Deady goes on to remark that "[t]he Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since." This sentence would be quoted approvingly three years later in Justice Horace Gray's majority opinion in Elk v. Wilkins.
Judge Deady's dicta in Osborn seems to rest on the assumption that, in the case of tribal Indians, "subject to the jurisdiction" is "tied to the status of someone as a member of a tribe" rather than "tied to territory." (Judge Deady's intuition that the prosecution could not be sustained if the sale were to an Indian who had acquired U.S. citizenship initially found support. (In re Heff, 197 U. S. 488, 508-509 (1905)). However, the Supreme Court overruled Heff a decade later. (United States v. Nice, 241 U. S. 591, 601) (1916). The Supreme Court indicated three years ago that Nice remains good law. (Haaland v. Brackeen, 599 U. S. 255, 278 (2023)).) Had Judge Deady entertained the suspicion that the Citizenship Clause and the 1872 statute laid down a strictly territorial rule, one might have expected his opinion to home in on Joe Miller's whereabouts when the 1872 citizenship law took effect and to eschew its sweeping pronouncement that all Oregon Indians remained non-citizens as of 1880. While Osborn never cites the 1872 Oregon Territory citizenship statute, Judge Deady and his fellow Code Commissioner did include the provision in their 1874 compilation of Oregon's laws.
Did Judge Deady need to pin down where Joe Miller was on May 18, 1872 in order to determine his citizenship status? Perhaps the Supreme Court's long-awaited last word on the Citizenship Clause will be accompanied by the court's first word on the earliest citizenship statute to incorporate the Clause's "subject to the jurisdiction" stipulation.
The Ninth Circuit held argument last week in a very interesting case on the Computer Fraud and Abuse Act, the computer hacking statute, Amazon.com Services v. Perplexity AI, No. 26-1444. The basic issue: If an Amazon user wants to use an AI agent to help make purchasing decisions on the user's behalf at Amazon, but Amazon doesn't want users to do that, has the AI company committed a federal hacking crime if Amazon tells the AI company to stay away but the AI company continues to make its services available to the Amazon customers?
Perplexity AI's main brief is here, and Amazon's main brief is here. Oral argument is below.
Having written a lot on the CFAA, I wanted to offer some brief thoughts.
First, as I argued back in 2016, in Norms of Computer Trespass, I think the correct way to interpret the statute in shared password cases is with an agency test. If authorized User A gives his credentials to user B, so B can access A's account, B is authorized under A's authorization when—and only when—B is acting as A's agent. From 1178-79:
This approach mirrors the analogous rule in the physical world. When access is limited by a physical lock and key, whether entry is a physical trespass law depends on whether it falls within the zone of permission granted by the owner. For example, in Douglas v. Humble Oil & Refining Co., a business owner gave an employee the key to his home so the employee could feed his pets when he was away. The employee later used the key to enter the home for a different reason. According to the court, this entry for reasons outside the scope of permission was a trespass. This approach allows computer account holders to share usernames and passwords with an agent. If the agent accesses the account on the account holder's behalf, the agent is acting in the place of the account holder and is authorized. The agent then has the same authorization rights as the account holder. For example, I recently set up a Gmail account for my students to email class assignments. I gave my assistant the account password and asked her go into the email inbox and collect them for me. When she did so, she was acting as my agent. Legally speaking, she was me. She was fully authorized to access the account in her capacity as my agent. Her conduct was authorized and legal, much like employee access to an employer's account for work purposes.
On the other hand, a third party who uses a password in pursuit of her own ends stands in the same place as a third party who has guessed or stolen the password. Consider the facts of Rich. When Rich accessed the LendingTree website using a password, he was not acting as an agent of a legitimate customer. Rich paid for access to the password, but he did not pay LendingTree. Instead, he paid an employee of a legitimate customer. Rich accessed the account to help himself get richer, not to help the employee. From the perspective of LendingTree, Rich's access was no different from access using a guessed or stolen password. Rich was not a legitimate customer or an agent of a legitimate customer. Whether he obtained the password by stealing it from the employee or by paying for it makes no difference to LendingTree. For that reason, Rich's access was unauthorized.
This morning in the Court I heard Justice Kagan hand down Hunter v. United States. As she announced it, I thought the Court reached a consensus ruling on a criminal procedure issue. But at the end, she said that Justices Gorsuch, Kavanaugh, and Barrett wrote separately. My immediate thought was "they have too much time on their hands and need to grant more petitions." But as I read through the decision, I realized how this case reflects the cost of near-unanimity.
Of the eight member majority, only Justice Kagan and Chief Justice Roberts did not write separately. There were two camps of three--and not the usual ones. Justice Gorsuch wrote a concurrence joined by Justices Sotomayor and Jackson, which was a frontal assault on plea bargaining in general, and appeal waivers in particular. Justice Kavanaugh wrote a concurrence joined by Justices Alito and Barrett, charging that Gorsuch set a "low bar" for plea waivers that "may not be entirely consistent with the Court's opinion."
Justice Kagan, for her part, made no reference to any of the three concurrences. She was holding onto the majority for dear life. Kudos to her for threading that needle. I'm sure the Chief Justice was thankful she had the author pen in this case. I wonder whether the Chief would have been better off writing a more pro-government opinion with Justices Alito, Kavanaugh, and Barrett, with Kagan in tow, allowing Sotomayor and Jackson to drop off. But perhaps Justice Kagan would not have gone along with that outcome, so this quasi-broad coalition was the best that can be done.
I will have much more to say about this case, especially the split between Justice Barrett and Thomas.
I have written quite a bit about Judge Ross's extrajudicial activities. I've also written how the Eleventh Circuit Judicial Council, and Chief Judge Pryor in particular, have handled this issue. Last Friday, I raised some questions about how Judge Pryor addressed Judge Ross's apology letter:
How does Chief Judge Pryor have this authority? Did the other (unnamed) members of the Council agree to this plan? Moreover, it seems that Pryor decided not to investigate Ross further based on her making her private reprimand into a public reprimand. How does he have that authority? Judge Ross would have never consented to any reprimand if it was public. Judge Pryor nullified the cornerstone of the Judicial Council's agreement with Judge Ross.
I am thankful that Professor Arthur Hellman addresses some of these questions in the following guest post.
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The judicial misconduct proceedings involving Federal District Judge Eleanor Ross of Atlanta continue to generate controversy, much of it fueled by a blockbuster expose published by the New York Times on June 11. In this guest post I'll flag seven (mostly) procedural irregularities and suggest what might be done to clean up the mess that the proceedings have become. These points may seem technical, and to some extent they are, but many of them concern a basic question: who decides? The post assumes general familiarity with prior developments, summarized in the Times story.
A. Bypassing the Judicial Council
1. The Feb. 11, 2026, order of the Eleventh Circuit Judicial Council (incorporating the findings and recommendations of the Council's Special Committee, which investigated the matter) stated: "Any apology [issued in connection with the sanction] should be sufficiently specific so as to make clear to the recipient the sexual misconduct for which the judge is apologizing." That order was made public on May 22, when the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (JC&D Committee) issued its order affirming it.
On June 8, four of Judge Ross's former law clerks (whose unease about the sexual activity taking place in the judge's chambers led to the initial complaint) wrote to the Judicial Council stating that they did not believe that the three-sentence apology letters they had received complied with the provision just quoted. The law clerks' letter went to Chief Judge William Pryor, who wrote to Judge Ross on June 10 asking her to respond to the "allegations." He specifically asked her to "state whether [she] failed to send adequate letters of apology to [her] former law clerks." He implied that if her response was not satisfactory, she might be subject to more severe discipline than the private reprimand she had received. He gave her a deadline of June 12.
On June 11, Judge Ross sent new letters to the law clerks and informed Judge Pryor of her action. Judge Pryor responded with a second letter, also on June 11, saying, in effect, that he would take no further action against Judge Ross. With Judge Ross's consent, he disclosed the new apology letters to The New York Times, which published a second story on June 12.
Judge Pryor's brief letter did not say whether Judge Ross had sent any response other than the new letters. Based on the public record, it is fair to conclude that Judge Ross acknowledged, at least implicitly, that her initial apology letters were not adequate.
The "procedural" problem here is that the apology requirement was part of the sanctions imposed by the Judicial Council – the only entity authorized to impose sanctions under the Judicial Conduct and Disability Act of 1980 (JCDA). By alerting Judge Ross to the possible inadequacy of the first set of apology letters, Judge Pryor implicitly invited her to write a new set that would be treated as compliant. That is certainly how Judge Ross read the letter. But it seems to me that only the Council could properly determine (a) whether Judge Ross should be given a second chance to comply with the apology provision of the Feb. 11 order and (b) if so, whether the new letters did comply.
2. The Feb. 11 Judicial Council order determined that a private reprimand was a sufficient sanction, and therefore it did not identify Judge Ross. Chief Judge Pryor's letters of June 10 and June 11 are the first official acknowledgment that Judge Ross is the "Subject Judge" referred to in the order. Judge Pryor's two letters have been posted on the Eleventh Circuit website. But the Feb. 11 order remains as it was originally issued, and the Council (as far as we know) has not been given a chance to reconsider its sanction and how it is to be reported. Again, Judge Pryor chose to bypass the Council.
3. Chief Judge Pryor's June 11 letter stated that he had decided not to identify a second complaint against Judge Ross. But under the Rules for Judicial-Conduct and Judicial-Disability Proceedings (JC&D Rules) he could, instead, have identified a new complaint and then dismissed it or concluded the proceeding. The Commentary to the JC&D Rules provides (pp. 14-15): "In high-visibility situations, it may be desirable for a chief judge to identify a complaint … (and then, if the circumstances … warrant, dismiss or conclude the identified complaint without appointment of a special committee) in order to assure the public that the allegations have not been ignored."
That might seem like a distinction without a difference. But it is far from that. Under another provision in the rules (Rule 11(g)(3)), if Judge Pryor had identified a complaint and thereafter issued a final order disposing of it, that order would have been subject to automatic review by the Judicial Council. By sending a letter rather than issuing an order, Judge Pryor bypassed the automatic-review mechanism.
B. Other Concerns
The analysis thus far has explained why Chief Judge Pryor's June 11 letter made it impossible for the Judicial Council of the Circuit to carry out its statutory role and determine whether Judge Ross had complied with its original order. But that is not the only concern raised by the exchange of letters on June 10 and 11.
On June 18, in United States v. Hemani, the Supreme Court unanimously held that the prohibition under 18 U.S.C. § 922(g)(3) of firearm possession by a person who is "an unlawful user of" a controlled substance violates the Second Amendment as applied to one who used marijuana "about every other day." Justice Gorsuch delivered the opinion, joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kavanaugh, Barrett, and Jackson. Justice Alito concurred in the judgment, joined by Justice Kagan.
Under Bruen, the provision burdens conduct presumptively protected by the Second Amendment because it bans a class of people from possessing (i.e., "keeping" or "bearing") any firearm. The burden thus shifts to the government to justify the ban based on longstanding, well-representative historical analogues, but the habitual drunkard laws on which the DOJ relied here "targeted different kinds of people, for different purposes, and operated in different ways" than does 922(g)(3).
The Court found it necessary to distinguish, in footnote 6, certain other provisions of § 922(g), including felon ban in (g)(1) and the categories in (g)(4) concerning any person "adjudicated as a mental defective" or "committed to a mental institution." Unlike subsection (g)(3), they "involve some manner of pre-deprivation process before an individual's Second Amendment rights are lost," and (repeating Heller) "nothing in our opinion should be taken to cast doubt" on them. (Other than the alien provision, the other § 922(g) provisions also entail pre-deprivation process.) The Court's reference to "pre-deprivation" actually speaks to, among other things, so-called red flag laws.
Hemani describes how at the Founding and thereafter, a habitual drunkard was someone who was regularly intoxicated so as to deprive him of his ordinary reasoning faculties. "Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble." The Court's examples verge on the humorous: John Adams took "a tankard of hard cider" with his "daily breakfast," James Madison "consumed a pint of whiskey daily" (although another author argued that Madison "championed wine … as a healthier and more respectable choice"), "George Washington often drank three glasses of madeira in the evening," and Thomas Jefferson enjoyed "3 or 4 glasses [of wine] at dinner."Just before the Framers signed the Constitution, a farewell party was thrown for General Washington consisting of 55 guests at Philadelphia's City Tavern where they were served 54 bottles of madeira, 60 bottles of wine, 8 bottles of "Old stock," 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch!
With detail like that, the government's attempt to equate mere pot use with being a habitual drunkard appeared almost laughable. Not to mention that laws focused on habitual drunkards because they were virtually incapacitated and incapable of managing their affairs. Yet no evidence existed that Mr. Hemani's pot use every other day made him unable to manage his affairs or caused him to be physically-violent or be a risk to himself or his family. Under the government's theory, it does not matter if he "use[s] a mild gummy as a sleep aid a few times a week," or if as applied to others a husband "regularly takes his wife's prescription Ambien to sleep" or a college student "routinely uses a friend's Adderall to cram for exams."
Moreover, the government misunderstood the purposes of the historical analogues it cited, which "had little to do with protecting the public from categorically violent and unusually dangerous persons." The vagrancy laws were directed against those who failed to fit in with the culture of working. The civil-commitment laws sought to protect habitual drunkards from themselves and their families from financial ruin. Imposing a surety of good behavior protected society from scandals "against good morals."
The "why" or purpose of the above laws were thus not motivated to protect society from physical violence, and so the "why" of the Bruen methodology did not line up. And neither did the "how" of the government's purported analogues, for those analogue laws "usually provided some form of process before an individual lost any of his liberties, even temporarily." But § 922(g)(3) "automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use—all without any pre-deprivation process." Look for lack of process to be a bone of contention in future prohibited person challenges.
Hemani next turns to the government's argument that the unlawful user provision disarms persons who as a category are violent and unusually dangerous. (Recall the 1936 movie Reefer Madness?) First, the ban is keyed to the Controlled Substances Act, to which drugs can be included without any association with violence, although "some unlawful users of controlled substances can pose a risk of violence." Second, when this case started, marijuana was listed on Schedule I, which includes drugs with "a high potential for abuse" with "no currently accepted medical use." But after oral argument, some marijuana products were declassified to Schedule III, which includes drugs with low potential for abuse and for which there is a "currently accepted medical use." All the while most states have legalized marijuana in different ways. All of that leaves the government "awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous."
The Court notes that use of marijuana or other controlled substances may render a person dangerous, but the government insists that no such showing is necessary for a valid conviction. The following passage adopts the principle that the government's ipse dixit will not suffice where constitutional rights are at stake:
[The government] asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing. All based on little more than its current say-so, one at odds with its own regulatory actions. And affording the government that kind of "broad power to designate any group as dangerous and thereby disqualify its members from having a gun" would risk allowing it to "quickly swallow" the Second Amendment. (Quoting then-Judge Barrett's dissent in Kanter v. Barr (7th Cir. 2019).)
Hemani concludes that the decision is narrow. It does not address the "addicted to any controlled substance" prong of (g)(3) or (g)(1)'s provision where the felony is drug-related. "We do not even address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant's use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason."
At bottom, Hemani strictly applies Bruen's principle of reasoning by historical analogy without any departure from that principle. As the Court did in Rahimi, it relies on the "why" principle that a valid deprivation of the arms right must apply to persons who pose a danger of violence and the "how" principle of pre-deprivation process.
Justice Thomas concurred in the opinion, adding (as he rightly does on firearm and other issues) that Congress has exceeded its powers under the Commerce Clause. Section 922(g)(3) criminalizes possession of a firearm by a drug user "in or affecting commerce," which courts read to mean having crossed state lines at some point in history. As Lopez held, that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."
Justice Jackson, joined by Justice Sotomayor, concurred, but wanted to remind us that "Bruen is unworkable," and that "means-end scrutiny—the approach courts applied before we adopted Bruen's 'history and tradition' metric—offers a more rational way of assessing the constitutionality of firearm regulations." In practice, that means that all firearm regulations are always constitutional.
Finally, Justice Alito, joined by Justice Kagan, concurred in the judgment. He agreed with the Court that the government's historical analogues are not "relevantly similar" to § 922(g)(3) "as applied to respondent," reminding us that this is an "as-applied" challenge, not a facial one. He repeated that nothing in the opinion casts doubt on provisions like §§ 922(g)(1) and (4), which concern felons and the mentally ill. But reality tells us that "marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana." He seems to suggest that prosecuting pot-using gun owners today is like beating a dead horse.
This case presents a conflict between individual rights and executive sovereignty. On one side are liberties guaranteed by the First and Fifth Amendments—specifically, the right of a public employee to be free from political viewpoint discrimination and the foundational promise of due process. On the other side sits an equally formidable principle of structural governance: the Executive Branch's exclusive Article II authority to control access to national security secrets. The friction between these two forces becomes acute when, as here, a plaintiff alleges that the Executive Branch used its security clearance process not to protect classified information, but as a pretextual weapon to execute an ideological purge.
The Supreme Court has left little room to maneuver when determining which of these constitutional interests wins out. See Dep't of Navy v. Egan (1988). Egan treats national security as a virtually impenetrable executive enclave. The Court held that no judicial body has authority to audit the substance of an underlying security clearance determination when reviewing an adverse employment action. And at least in the Eleventh Circuit, this limitation applies not only to the revocation of a security clearance, but also to decisions made at the suspension or investigatory stage. Hill v. White (11th Cir. 2003). "To review the initial stages of a security clearance determination is to review the basis of the determination itself regardless of how the issue is characterized."
The combined weight of Egan and Hill dictates the outcome here. Plaintiff Kelli-Ann Reilly sues the FBI and several officials "for politically motivated" retaliation and unlawful termination of her employment. She brings a few different claims, but they all center on the same "core issue": "the FBI revoked her security clearance to punish disfavored political viewpoints and enforce ideological conformity." Under Hill and its progeny, if the alleged malfeasance is tied to the security clearance pipeline, as here, the inquiry is at an end.
Make no mistake, the factual allegations in this complaint are troubling. Reilly's charge that the FBI transformed its background check process into an instrument for political screening is profoundly troubling. But institutional discomfort cannot hand a federal court jurisdiction it does not possess. Because evaluating Reilly's claims requires inquiry into the security clearance process itself, her case "is not within the jurisdiction of the courts." …
Here are the relevant facts from Reilly's complaint, which must be accepted as true at this stage. Reilly worked at the FBI as a financial analyst for twenty-six years. She held a Top-Secret security clearance and successfully passed several periodic security-clearance reviews. She steered clear of any disciplinary actions or internal misconduct. Her record, in short, was spotless.
Then the 2020 presidential election happened. Reilly told her supervisor that she felt the election "involved irregularities and might be overturned through lawful judicial processes." The institutional reaction was quick. Within a month, her security clearance was suspended. As the FBI tells it, she had relayed "baseless conspiracy theories associated with" possibly violent or criminal organizations. Concluding that these viewpoints rendered her "potentially vulnerab[le] to manipulation and coercion," the FBI stripped her security clearance and placed her on unpaid administrative leave pending a full investigation.
Today, in United States v. Hemani, the Supreme Court ruled that the Second Amendment prevents the federal government from banning gun ownership by marijuana users. Unusually for a Second Amendment case, the ruling is unanimous. It's a significant application and extension of the Court's 2022 ruling in the 2022 Bruen case, which sought to put more meat on the bones of Second Amendment rights by establishing a "history and tradition" test for reviewing gun regulations. It's a great moment for those of us who both support strong Second Amendment rights and hate the War on Drugs (elsewhere, I have argued that most of the federal War on Drugs is itself unconstitutional). The ruling also features a joint concurring opinion by Justice Alito joined by Justice Kagan - a rarely seen combination.
Justice Neil Gorsuch wrote the opinion for the Court, joined by seven justices in all. Here's an excerpt:
To determine when the government infringes the Second Amendment, we begin by asking whether the Amendment's terms cover the conduct in question. Bruen, 597 U. S., at 24. If so, the Constitution "presumptively" protects it. Ibid. To overcome that presumption, the government then bears the burden of showing its regulatory efforts are "consistent with the Nation's historical tradition of firearm regulation." Ibid….
§922(g)(3)'s unlawful user provision burdens conduct presumptively protected by the Second Amendment. After all, that statute bans a class of people including Mr. Hemani from possessing essentially any firearm for any purpose. As a result, the government acknowledges, it has a burden to carry….
To meet its burden of showing a law like that is consistent with the Nation's tradition of firearm regulation, the government relies on an analogy to what it calls "habitual drunkard" laws. These laws, the government submits, enjoy deep roots in the country's history and are "relevantly similar" to the regulation it wishes to enforce against Mr. Hemani….
We disagree. We appreciate that drugs and guns can sometimes make for a dangerous mix. We appreciate, too, that the government's effort to analogize a modern statute addressing drug use to historical laws must be approached with a sensitivity to the fact that many drugs well known today were unknown in early America. As we have put it, the Second Amendment "can, and must, apply to circumstances beyond those the Founders specifically anticipated." Bruen, 597 U. S., at 28. But, even taking all that into account, the government cannot carry the burden it has set for itself. We decide cases "based on the historical record" and arguments "compiled by the parties" before us. Id., at 26, n. 6. And the habitual drunkard laws on which the government relies here differ dramatically from §922(g)(3)'s unlawful user provision on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways. Whether any one of these problems taken in isolation would prove fatal to the government's cause, we need not decide. Taken cumulatively, we hold, they certainly do. And, apart from pointing to habitual drunkard laws, the government has not even attempted to prove that any other specific historical principle might justify its prosecution in this case….
Gorsuch goes on to point out that habitual drunkards are fundamentally different from people who merely drink alcohol - or use marijuana - on a regular basis:
Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble. John Adams took "a tankard of hard cider" with his "daily breakfast….". Some say James Madison "consumed a pint of whiskey daily." D. Okrent, Last Call: The Rise and Fall of Prohibition 8 (2010)…. George Washington often drank three glasses of madeira in the evening—"not enough to be considered a heavy drinker in his day." Id., at 5. Thomas Jefferson enjoyed "3 or 4 glasses [of wine] at dinner…."
There was, in short, a "culture of copious drinking" in early America. D. Korostyshevsky, Incapable of Managing His Estate: Habitual Drunkards and the Expansion of Guardianship in the Nineteenth-Century United States, 43 Law & Hist. Rev. 795, 800 (2025)….
Given all this, it seems the government's historical laws targeted habitual drunkards not merely because they regularly used intoxicants, or even sometimes used them to excess. Instead, those laws focused on habitual drunkards because their drinking rendered them practically incapacitated and incapable of managing their affairs….
The law [at issue in this case], the government insists, does not require it to show that a particular individual is regularly incapacitated, much less incapable of conducting his affairs or a threat to himself or others. Put simply, on the government's telling, §922(g)(3) sweeps in large numbers of people without regard to whether their substance use has the kind of incapacitating effect on them that historical habitual drunkard laws normally required. This case illustrates the disconnect. The government considers Mr. Hemani an unlawful user of a controlled substance because he admits to using marijuana about every other day. But how much marijuana does Mr. Hemani use, in what potency, and to what effect? Is he routinely unable to manage his affairs, a risk to himself or his family?….. We do not know and, the government says, it doesn't matter…
Importantly, the Court's reasoning isn't limited to disarming marijuana users alone. Justice Gorsuch emphasizes that one problem with the government's position is that it would allow denying gun rights to anyone who uses a drug in a way restricted by federal law, regardless of whether the user becomes dangerously incapacitated or not:
Nor does the government's theory stop at Mr. Hemani. It extends equally to a husband who regularly takes his wife's prescription Ambien to sleep and a college student who routinely uses a friend's Adderall to cram for exams. Id., at 56–58. The drug involved makes no difference. Nor, again, does it matter how much an individual uses or the effects it has on him. That someone regularly uses any substance found on any of the CSA's five schedules for anything other than its "prescribed purpose" is enough…. Without more, the government asks us to analogize all such persons to habitual drunkards. To state the analogy is to expose its deficiency….
[W]e do not question that sometimes an individual's unlawful use of marijuana (or any other controlled substance) may render him a danger to others. But, again, the government disclaims the need to show anything like that in this case. Instead, it asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing. All based on little more than its current say-so, one at odds with its own regulatory actions. And affording the government that kind of "broad power to designate any group as dangerous and thereby disqualify its members from having a gun" would risk allowing it to "quickly swallow" the Second Amendment. Kanter v. Barr, 919 F. 3d 437, 465 (CA7 2019)(Barrett, J., dissenting).
This suggests that mandated disarmament of other types of users of illegal or restricted drugs is also unconstitutional, except in cases where the users are incapacitated or dangerous in ways similar to "habitual drunkards."
Gorsuch does stress that the ruling is in many respects…a narrow one." It does not definitively resolve the issue of how to address alls laws disarming users of various illegal or restricted drugs. Nor does it deal with situations where the law bans possession of a gun while the user is actually intoxicated or high. But the Court's reasoning nonetheless clearly sweeps beyond the specific circumstance of marijuana use.
In his concurring opinion, Justice Alito, joined by Kagan, applies slightly different reasoning:
Although I agree with the Court on [various key] points, I would affirm on a different ground from those on which the majority relies. As the opinion of the Court explains, the habitual-drunkard laws that the Government cites did not allowofficials to disarm all those who "regularly used intoxicants," or even just those who "sometimes used them to excess…." These laws instead threatened disarmament only for those whose use of an intoxicant "rendered them practically incapacitated and incapable of managing their affairs…."
The mismatch between the Government's historical analogues and the theory on which the Government defends the constitutionality of §922(g)(3) as applied to respondent is clear. All that we know about respondent's marijuana use is that he used the drug about every other day. We do not know how much he used, the strength of the marijuana he used, how many times he used it on the days in question, the time of day when he used it, where he used it, or the degree to which this use affected his ability to exercise judgment and perform daily tasks responsibly….
Marijuana consumption is increasingly common in this country. Many States have legalized its use and sale, and although possession of the drug remains a federal crime, very few persons are convicted of that offense each year. The Government has largely tolerated the production and sale of marijuana when done in accord with state law, and it has allowed a multi-billion-dollar marijuana business to develop….
In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana. These similarities underscore the deficiency of the Government's analogues. To succeed, the Government would need to identify a regulatory principle that justified disarmament of persons who are relevantly similar to the occasional marijuana user. But whereas the Government's analogues allowed disarmament only of those whose extreme use of an intoxicant (alcohol) incapacitated them habitually, §922(g)(3) as applied to respondent allows disarmament of those who do no more than "regularly us[e]" a similar intoxicant (marijuana) unlawfully….
I agree with both the majority and with Alito's uncharacteristically civil-libertarian concurrence.
In a concurring opinion joined by Justice Sotomayor, Justice Ketanji Brown Jackson agrees that the Court rightly applied the Bruen "history and tradition" framework, but argues that that framework is itself badly flawed, relying on dubious and difficult-to-apply historical analogies. She argues, instead, for applying "means-ends scrutiny." I think she's largely right about that. But the solution is not to weaken judicial protection for Second Amendment rights to but use a different approach to enforcing them. On that point, I agree with much of Randy Barnett and Nelson Lund's critique of Bruen, published soon after the ruling:
[H]istorical analogies will frequently provide insufficient guidance, particularly for novel gun control laws that address modern problems. Looking at whether individuals could have knives and guns on eighteenth-century ships, for instance, does not provide a persuasive reason either to uphold or invalidate a modern regulation prohibiting weapons on commercial aircraft. That law is designed to prevent aircraft hijackings, a danger quite unlike the threat of mutinies in previous centuries.
What's the alternative? Rather than relying on specious historical traditions, courts could evaluate gun laws against the purpose of protecting the right to keep and bear arms: facilitating the exercise of the fundamental right of personal and collective self-defense. In particular, judges could require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent. In this way, judges can distinguish regulations that reasonably regulate this fundamental right from those that unreasonably obstruct it.
Better to start with the text and purpose of the Amendment and apply that to the facts of particular gun regulations, than the reverse! And the Barnett-Lund approach strikes me as compatible with Jackson's advocacy of "means-ends scrutiny," though I'm not sure either they or she would agree. Courts should consider whether the purpose and operation of the law in question is incompatible with the rights protected by the Second Amendment, and - if the purpose is permissible - whether the means used nonetheless unduly "obstruct" the right to bear arms.
Finally, Justice Clarence Thomas has a concurring opinion arguing that the law in question not only runs afoul of the Second Amendment, but also goes beyond Congress's authority under its power to regulate interstate commerce. The Commerce Clause does not authorize Congress to criminalize intrastate possession of guns "solely on the ground that they crossed state lines at some point in the past." I agree! Congress may only restrict the interstate sale and transportation of goods, not their mere intrastate use and possession. And this point, as Thomas has recognized in past opinions, applies to the War on Drugs, as well.
In sum, not only is this an excellent decision, but it's a rare case where we have four different opinions by various justices, all of which are largely right. I wish there were more rulings like this one!
This evening, I will be speaking to students with The Fund for American Studies. As is my usual custom with June trips to DC, I went to the Court for opinion hand downs. And, as per my usual custom, I rolled up to First Street around 9:20 a.m. Usually, the bar section is completely empty in June, but today was different. The officer at the front gate said there were more than 200 people seeking bar admissions today, and that I might not even get a seat. That was something I hadn't experienced before.
I was asked to wait in the cafeteria to see how many empty seats there would be in the bar section. Also waiting was John Coghlan of Torridon Law, who was there to see his sister get sworn in. (Fun fact: John was the first lawyer to argue in person at the Court after the COVID shutdown on October 4, 2021.) Thankfully, we were let upstairs shortly before 10:00. Only three bar members would be allowed in.
I was seated just as Justice Gorsuch began announcing the majority opinion in Hemani. That meant no opinions from Justices Jackson, Barrett, or Kavanaugh. As Gorsuch read the summary of the facts, it became clear he wasn't buying the government's "habitual" drunkard argument. He dropped a few laugh lines about how much John Adams and James Madison drank. The Fifth Circuit would be affirmed here. But not in the next case.
Justice Kagan had the opinion of the Court for Hunter v. United States. This case concerned when a defendant was not bound by an appeal waiver. Kagan said that the government proposed an unforgiving standard, the Fifth Circuit adopted a middle standard, and other circuits adopted a forgiving standard. It was obvious who was going to win here. The Fifth Circuit was reversed.
Justice Sotomayor was next with T.M. v. University of Maryland. I had written about this case before. Elizabeth Prelogar was a last minutesubstitute for Kannon Shanmugam. Respondent was represented by Lisa Blatt. Justice Sotomayor made clear that the Court was not going to overrule the Rooker-Feldman doctrine, as Prelogar had asked for. She also rejected Prelogar's backup argument. But to my surprise, the opinion split 5-4 in an unusual fashion. The majority had Sotomayor, Thomas, Alito, Kavanaugh, and Jackson. Barrett dissented, joined by Roberts, Kagan, and Gorsuch. I will note that Justice Thomas cited the Heritage Guide to the Constitution (Third Edition).
In 1780, the Confederation Congress created a court under that authority whose jurisdiction allowed it to "hear new evidence without deference to state courts'" legal conclusions. W. Pryor, The Appellate Jurisdiction Clause, in The Heritage Guide to the Constitution 499 (3d ed. 2025) (Pryor)
I hope this is the first of many Supreme Court citations for this important book. Whatever baggage the Heritage brand may have should not override the amazing scholarship in the book from Judge Pryor and others.
I did notice the Justices seemed tense. They weren't talking to each other. I didn't see them laughing or joking around. Justice Alito was closely reading something. I thought he had an opinion to deliver, but it was apparently something else. Chief Justice Roberts was staring up at the ceiling for an extended period of time while Justice Sotomayor was reading. Justice Barrett was just looking forward intently. The only moment of levity came when Justice Gorsuch joked about our alcoholic founders. These vibes do not augur for a pleasant end-of-term.
After Sotomayor finished reading her opinion, the Chief Justice asked the clerk to begin the admissions process. Most of the members of the press box left at that point, somewhat disappointed at the lack of blockbusters. For a Thursday in June, this was a slow day. And given the federal holiday tomorrow, there are no more opinions for this week.
I stepped out of the Court to grab a copy of the bench opinions. It had been some time since I waited for a paper copy, and didn't realize the binding had changed. Two staples are visible on the spine. Mark Walsh, whose father was in the printing business, told me it is called a "Perfect Binding."
Mark also told me that there would be no opinions on Monday, and the next batch is scheduled for Tuesday. There is also a scheduled hand down for Thursday. So next week will likely add a Wednesday or Friday session. The consensus from several reporters I spoke with is that the term will end on June 30 or July 1.
A few other miscellaneous notes as I traveled around town.
Yesterday, out of curiosity, I walked past the White House to see the renovated reflecting pool. It is difficult to convey how large the UFC Claw was. It towers over the White House. It can be seen from both Pennsylvania and Constitution Avenue.
The reflecting pool was green. It was filled with algae and other growth. I did not see American Flag Blue.
Today the Supreme Court decided T.M. v. University of Maryland Medical System Corp., a case concerning the application of the Rooker-Feldman doctrine, under which federal district court review of state court decisions is generally barred.
The justices split 5-4 on the application of the doctrine here. Justice Sotomayor wrote for the Court. She summarized the issue in T.M. this way:
Under what has become known as the Rooker-Feldman doctrine, federal district courts lack jurisdiction over "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 284 (2005). This case asks whether this rule bars suit when the state court judgment at issue is subject to further review in state appellate proceedings. A straightforward application of the logic and reasoning underlying Rooker-Feldman leads to one conclusion: It does. Because this suit falls within the narrow doctrine's limits, the Court of Appeals for the Fourth Circuit properly affirmed its dismissal.
The line-up this decision produced is what is particularly interesting. Justice Sotomayor was joined by Justices Thomas, Alito, Kavanaugh, and Jackson. (Justice Thomas also wrote a separate concurrence, defending Rooker "as an original matter.")
Justice Barrett dissented, joined by the Chief Justice and Justices Kagan and Gorsuch. Her opinion begins:
Twenty years ago, this Court held that the Rooker-Feldman doctrine is "confined" to the procedural circumstances of the two cases from which the doctrine draws its name. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 284, 291 (2005); see Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U. S. 462 (1983). In "both cases," we emphasized, the federal action was brought "after the state proceedings ended." Exxon, 544 U. S., at 291. Seven Courts of Appeals took us at our word, refusing to apply Rooker-Feldman when the underlying state action remained pending. They were right to hold the line. Because the Court has chosen to relax it, I respectfully dissent.
Her dissent concludes:
The upshot of today's decision is that the Court has muddied waters that were hardly clear to begin with. That is unfortunate, because there was a better path available: treating Rooker-Feldman as "the §1257 Rule." VanderKodde, 951 F. 3d, at 409 (Sutton, J., concurring). Doing so would have been both clearer and more faithful to Exxon.
Still, the news is not all bad. Although the Court expands Rooker-Feldman beyond Exxon's line, it repeatedly emphasizes that the doctrine is "narrow." See ante, at 1, 7, 8, 18. Courts should not lose sight of that message. In the end, Rooker-Feldman has been given an inch—it should not be allowed to take a mile.
T.M. was not the only decision today to produce an interesting lineup. The Court was unanimous in the judgment in United States v. Hemani--a potentially important Second Amendment case--but split on the rationale. Justice Gorsuch wrote for the Court. Justice Alito wrote separately, only concurring in the judgment and was joined by Justice Kagan. (Yes, you read that correctly.) Justices Thomas and Jackson also authored concurring opinions.
This is an action for libel per se, and false statements causing special damages. Defendant Zachary Stewart, a theater critic writing for Defendant TheaterMania, authored and published a review of a theatrical production written and presented by Plaintiff. The production was a serious, historically grounded drama confronting the Holocaust, the founding of the State of Israel, the 1948 Arab-Israeli War, the tragedy of a miscarriage, and the racially motivated execution of a Black man for loving a white woman. Yet it was deliberately, falsely, and maliciously described that production as a "buddy comedy." …
Plaintiff believes and therefore alleges that Defendant Stewart's false and injurious characterization was not an act of good-faith criticism, but rather an act of ideological sabotage, motivated by Stewart's known and documented hostility toward the State of Israel and the Jewish people, and his sympathies with the Palestinian and Gaza cause….
The Play is, in all respects, a serious drama. It does not contain comedic plot lines, comedic characters, physical comedy, comic timing, comic volley, or any other element associated with the buddy comedy genre or any comedy genre.
Last week I recorded a FedSoc forum with Professor Jesse Merriam at Patrick Henry College. The topic was "No Enemies to the Right? Antisemitism and the Big Tent." Usually, when I do one of these events, I am talking about something newsworthy. But this forum was a bit more personal, as I was the newsworthy event. I discuss my resignation from Heritage, and provide some updates of what has happened since.
So argues Prof. Jack Goldsmith (Harvard) in his Executive Functions post. An excerpt:
The United States in the MOU pledges "immediately" to "issue waivers for export of Iranian crude oil, petroleum products and derivatives, and all associated services, including banking transactions, insurances, transportation, etc." (Emphasis added here and throughout.) These waivers presumably include waivers of U.S. statutory sanctions against Iran.
I don't think the president has the authority under domestic law to issue these waivers. The Iran Nuclear Agreement Review Act (INARA) of 2015 applies here and temporarily bars a president from waiving sanctions against Iran. The executive branch has counterarguments, to be sure. And it's doubtful that any institution will make the president comply with INARA in any event….
The reflecting pool was green. It was filled with algae and other growth. I did not see American Flag Blue.
