Does The Second Amendment Have A Geography Clause?

Justices Thomas, Sotomayor, and Kagan recognize that a constitutional right should not mean different things in different places.

During oral arguments in NYS Rifle & Pistol, there were extended discussions of New York's diverse geography. There are the rural areas of upstate New York, the urban jungle of New York City (never say "downstate"), and "intermediate areas" like Rensselaer County. These varied communities raise the question of whether the scope of Second Amendment rights can vary from place-to-place.

For example, Justice Thomas asked NY SG Underwood how population density affects the scope of the right to bear arms:

JUSTICE THOMAS: General Underwood, you seem to rely a bit on the density of the population. You say, I think, that states like New York have high-density areas. And implicit in that is that the more rural an area is, the more unnecessary a strict rule is. So, when you are –when you suggest that, how rural does the area have to be before your restrictions shouldn't apply?

Later, Justice Kagan returned to Justice Thomas's question. (We are all better off that the revised format has enabled Justice Thomas to share his wisdom). Kagan explained that it would be intuitive for rights to vary in Wyoming and New York City. But that argument does not "match with our notion of constitutional rights generally." Rights should not vary by place.

JUSTICE KAGAN: I mean, if you think about Justice Thomas's questions about less populated areas, the rural areas of New York versus the cities, I mean, it seems completely intuitive that there should be different gun regimes in New York than in Wyoming or that there should be different gun regimes in New York City than in rural counties upstate. But it's a –it's –it's a hard thing to –to match with our notion of constitutional rights generally. I mean, Mr. Clement makes a big point of this in his brief about how we would never really dream of doing that for the First Amendment or other constitutional rights, allow that level of local flexibility that you're basically saying we should allow in this context. So I guess I just want to hear you say why you think that is. You know, what justification is there for allowing greater flexibility here?

General Underwood's reply focused on the importance of local officials having discretion. After all, local officials know the circumstances of their communities. Justice Sotomayor then interrupted Underwood mid-sentence. Sotomayor contended that Underwood had dodged Kagan's question:

JUSTICE SOTOMAYOR: I don't think that was Justice Kagan's question.

MS. UNDERWOOD: Oh, I'm sorry.

JUSTICE SOTOMAYOR: It was on a broader level, I believe. She can correct me if I'm wrong. The issue is no other constitutional right do we condition on permitting different jurisdictions to pass different regulations or –but do we have any other constitutional right whose exercise in history has been as varied as gun possession and use?

(I'm sure someone is keeping track of when female Justices interrupt veteran female advocates, forcing them to say "I'm sorry.")

Justices Thomas, Sotomayor, and Kagan recognize that a constitutional right should not mean different things in different states. I don't think this agreement will affect the bottom line in NYS Rifle & Pistol. But this overlap should affect how the opinions are written.

I am very sympathetic to this premise. I made a similar argument 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 could not have fathomed that a decade after I wrote this article, the questions I posed about the Second Amendment would still be unresolved.

Comments

[Darth Chocolate]

Josh, just as you shouldn’t refer to downstate, many places don’t like upstate. When you speak like that, you’re no better than that infamous New Yorker picture.

[DaivdBehar]

A state must recognize a marriage certificate from another, under the Full Faith and Credit Clause. Why must it not honor a conceal carry permit of another state?

[Gandydancer]

Because bad precedent makes for a bad argument.

[DavidWH]

A concealed carry permit is not one of “public acts, records, and judicial proceedings of every other state”, so the Full Faith and Credit Clause does not apply. It also does not apply to driver’s licenses; the States have their own agreements to honor licenses from other States.

[Bubba Jones]

There is literally a SUNY Downstate university. https://www.suny.edu/campuses/downstate/

[NM-Steve]

But Constitutional rights *already* vary by geography, in practice, for the Fourth Amendment, though doctrinally the question of varying rights by geography is a very lively one.

When local police make a stop with suspect justification, they almost always insist that the stop took place in a “high crime area” and should be judged by a more lenient standard. Most trial court judges agree, and do this in practice. The local appellate courts have been steering *very* clear of the issue/question. Different jurisdictions in different states have reached diametrically opposite stances on the question of “Do Fourth Amendment rights vary by location?”. Some judges insist that the constitutional standard does not vary by location, and point out that the practice leads to disparities in stops in neighborhoods based on wealth (which usually tracks typical crimes). Other judges insist that it is only “reasonable” to have different constitutional standards for different environs, and they channel their inner Scalia’s to say that the Fourth amendment deals with ‘reasonableness.’

To confound the Fourth and Second amendments, ask “Is it permissible to use a different Fourth amendment standard for stopping an armed person in a ‘high crime’ area?”

And, as you might have guessed, there is no generally acceptable definition of what exactly a “high crime” area is. Some judges just say that is something a cop intuitively knows, and thus provides extra legal justification for a stop. Others point out that without even a ballpark definition, the result is that cops can justify stops based on mere whimsy — which, quite bluntly, many judges are O.K. with in practice (as long as the practice isn’t in *their* neighborhoods).

I doubt that court will engage very much with fundamental underlying tension. Rather, they will probably just choose one side or the other based on how they instinctively want to rule.

[Dilan Esper]

This is a really good point.

See also community standards in obscenity jurisprudence.

[Krayt]

I dunno. If one jurisdiction can pass a gun law constitutionally, then any should, at least as far as the federal Constitution goes.

All this seems to labor under that idea.

[Dilan Esper]

Bear in mind, gun rights advocates love to analogize to other constitutional provisions. But we are telling you that some other provisions really do apply differently in different parts of the country.

[Sebastian Cremmington]

The n word applies differently to different people and in different situations. So if a white person calls a Black person the n word it’s a “fighting word”…but if a Black person calls another Black person the n word it could be a equivalent to “brother”. If a white suicidal ped0 uses the n word and later on gets shot by a white teenager in a “suicide by cop” situation then white pedo becomes a hero to the Left.

[Armchair Lawyer]

There’s a differences between a constitutional right and a law that a community can pass above that right.

Think about the right to vote. Communities can pass different times, places, etc. But there are certain lines that can’t be passed.

[Dilan Esper]

That is a phony distinction. In one part of the country you have a First Amendment right to sell pornography that you can’t sell in another part of the country. That’s exactly the same thing.

You guys don’t like it because carrying guns in big liberal cities is part of your political project. But Prof. Blackman is just wrong that constitutional rights can’t apply differently on different places.

[Krayt]

In practice, well that is exactly the issue.

Are there cases where someone is pulled over not in a high crime area and some judge said, “that wasn’t a high crime area, dismissed!”

[David Nieporent]

Yes. I mean, not quite that literally, but yes. Police detain/pull over someone, search him, (claim to) find contraband, and the person moves to suppress the evidence. A judge has to decide whether there was probable cause. The govt will argue that the place where the person was searched was a high crime area, and that this contributed to the existence of probable cause. A judge will agree, or not. If he does not, he will suppress the evidence, which will lead to dismissal.

[WuzYoungOnceToo]

That is a phony distinction.

Not nearly as phony (or dishonest and tired) as nearly every argument you’ve ever made on this issue. For instance:

You guys don’t like it because carrying guns in big liberal cities is part of your political project.

Let’s add “childish” to that list.

[Dilan Esper]

It’s absolutely true.

Look, I actually agree with you guys that the Constitution requires some sort of carry right, and we aren’t at liberty to ignore it when it is right there in the Second Amendment.

But the Big Lie of the gun rights movement is that you guys are a bunch of originalists tied to constitutional text. No way. The gun rights movement has constantly tried to graft an 18th Century right onto a 20th/21st Century political debate about guns, and they have made whatever false claims necessary to justify what they actually want, which is the hyper-libertarian conception of gun rights that big NRA donors and people who buy a lot of guns tend to support.

That is absolutely, 100 percent true and not childish. And this crap from Prof. Blackman is part of it. OF COURSE the place you are in can dictate the scope of a constitutional right. It’s true with the First Amendment. It’s true with the Fourth Amendment. And it’s true here.

But the political project of the gun rights movement is “we have the right to take our guns into New York City and to Black Lives Matter protests and to other similar places and scare liberals”. So its advocates have to lie, and do.

[WuzYoungOnceToo]

But the political project of the gun rights movement is “we have the right to take our guns into New York City and to Black Lives Matter protests and to other similar places and scare liberals”.

You’ve already given us plenty of reason to not take you seriously on this issue, adding to that with bullshit like the above is not necessary.

[ThePublius]

Agree 100%.

[Absaroka]

“But Prof. Blackman is just wrong that constitutional rights can’t apply differently on different places.”

To be clear, this is an ‘ought’, not an ‘is’ comment.

We seem pretty inconsistent with that geographical variation. If communities define indecency differently, no prob, but if Connecticut wants to bring back the dunking stool or Texas wants to hang horse thieves, then we get pretty consistent about ‘cruel and unusual’.

Personally, I also was a big fan of not allowing that regional variation in rights that was called ‘Jim Crow’.

On the balance, the regional variations that are allowed seem to be the exception rather than the rule.

[Dilan Esper]

I don’t think that’s right. The reason we don’t allow it with cruel and unusual punishment is because at least the cruelty part of it is really not dependent on region. But the reasonableness of a search can depend on where you are.

Jim Crow existed because we refused to enforce the Fourteenth Amendment and did not pass effective Civil Rights laws. It has nothing to do with this issue.

[Absaroka]

” The reason we don’t allow it with cruel and unusual punishment is because at least the cruelty part of it is really not dependent on region.”

Can you elaborate on why ‘indecent’ should vary regionally but ‘cruel’ should not? If Connecticut wants to put car thieves in the stocks, why should North Dakota get to interfere?

“Jim Crow existed because we refused to enforce the Fourteenth Amendment and did not pass effective Civil Rights laws.”

I dunno. I used to hear ‘Y’all damnyankees just don’t understand the South, and just shouldn’t come down here and tell us how to run our local communities’ a lot. Sounds to me like an argument for regional variations.

[WuzYoungOnceToo]

The reason we don’t allow it with cruel and unusual punishment is because at least the cruelty part of it is really not dependent on region. But the reasonableness of a search can depend on where you are.

You’re under the impression that the idea of indecency is subjective and may vary from population-to-population, but that cruelty is an objective constant?

[NOVA Lawyer]

Cruel: “disposed to inflict pain or suffering : devoid of humane feelings”

Indecency: “the quality or state of being indecent”

Indecent: “grossly improper or offensive”

Obviously, improper and offensive both require comparison with subjective standards whereas disposed to inflict pain and devoid of humane feelings are, at least facially, objective inquiries.

So, yeah, by the ordinary standards of the English language, whether something is “cruel” is essentially an objective inquiry whereas whether something is “indecent” is, by definition, a subjective question which will vary by time and location.

(That the standard for what is “cruel” has changed over time is, nonetheless, based on the idea that the standard is objective and, much like the standard for “equal treatment under the law”, has changed over time but, nonetheless, is an ostensibly objective standard. In other words, the prior usage of the legal terms “cruel” and “equal treatment” were simply wrong.) (Alternatively, nobody really denied that cropping a defendant’s ear was cruel, but there was a time when it wasn’t unusual…the other half of the standard which is, quite clearly, subjective.)

[Rossami]

The problem, NOVA, is that the definition you quoted of “cruel” applies perfectly well to the entirety of the current US penal system. Since the current system is clearly constitutional, that can’t be the actual definition of prohibited “cruel and unusual” punishments. When looked at in totality, it is rather subjective – just as subjective as indecency.

You claim that it’s ostensibly objective but I can’t see a credible way to support that claim. I think we are better served by admitting that it’s a subjective judgement and defining controls on that basis.

[WuzYoungOnceToo]

So, yeah, by the ordinary standards of the English language, whether something is “cruel” is essentially an objective inquiry

You’re claiming that “devoid of humane feelings” is an objective yardstick? There is commonly great disagreement about how “humane” many things are.

[Sarcastr0]

I just want to give you props for making it clear up front that you were in ought-land not is-land.

[Armchair Lawyer]

“In one part of the country you have a First Amendment right to sell pornography that you can’t sell in another part of the country”

What? Where in the country is this true? Please give a discrete example of a city or township, state, county, ect where it is ILLEGAL to sell pornography, such as Playboy.

[Patrick Henry, the 2nd]

First they are rare, and second they shouldn’t be.

[Lee Moore]

Nah.

The 4th Amendment expressly protects against unreasonable searches and seizures, and requires probable cause for warrants. These expressions comfortably encompass an assessment of the context of each search, seizure, warrant. And the context includes all factors which are reasonably believed to reflect the probability of suspect X being engaged in something properly searchable, seizable or warrantable.

The 2nd Amendment has got zip in it to do with reasonableness or probability.

[Lee Moore]

glancing again at NM-Steve’s remark – they channel their inner Scalia’s to say that the Fourth amendment deals with ‘reasonableness.’

Why would you need to channel your inner Scalia to spot the word “unreasonable” in 4A ? Is it not sufficient merely to eschew channeling your inner Nelson-at-Copenhagen ?

I mean it’s right there in black and white.

[NM-Steve]

This was not intended as an insult, but rather a nod to the fact that Scalia was very fond of emphasizing the importance of that word, and using it as a rationale for treating the 4th amendment differently than others. Say, for example, the confrontation clause. But there is an argument that *all* interpretations are subject to ‘reasonableness’, whether or not that word is in the relevant clause. For example, I am sometimes told by judges that Scalia’s interpretation of the confrontation clause is “unreasonable” because it makes the State do too much work (by bringing in witnesses). And I bring up Scalia’s argument about the absence of the word “reasonable” meaning that confrontation rights are not subject to reasonableness, and they disagree and I lose.

As an example of the generalized “reasonableness” application, look at war powers. The Courts often say it is “unreasonable” to follow either the text or intent of the founders, because of the chanted circumstances of the modern era. “The Constitution is not a suicide pact.” Yet, there is method for amending the constitution if it doesn’t work.

So does the constitution change over time? Or is it only changed by explicit amendment? Judges vary their rationale’s depending on the circumstances seeming to require certain outcomes, just like politicians do. It’s politics, just a different type of them.

[WuzYoungOnceToo]

For example, I am sometimes told by judges that Scalia’s interpretation of the confrontation clause is “unreasonable”

Conflating reasonableness of an interpretation of legal text with reasonableness being an element of what the text applies to isn’t much of an argument.

[Dilan Esper]

What about the First Amendment obscenity test- community standards?

[MatthewSlyfield]

It belongs in the dust bin.

[Lee Moore]

Not being a lawyer, I can offer no guidance as to the mental processes going on in judicial heads, past or present. They are a riddle wrapped in a mystery inside an enigma.

My role is much simpler – I just draw people’s attention to the actual words. And I notice the word “unreasonable” in 4A, and no such word in 2A, which was the comparator suggested by NM-Steve.

My competence extends no further.

[Rigelsen]

Earlier you seemed to confuse obscenity tests with indecency ones. You do recognize that obscenity tests are extremely narrow under current SC jurisprudence, right?

[Gandydancer]

Constitutional protections for me but not for thee, eh?

What limiting principles are you suggesting?

[WuzYoungOnceToo]

they channel their inner Scalia’s to say that the Fourth amendment deals with ‘reasonableness.’

I’ll take with a huge grain of salt any opinion on constitutional amendments from someone who apparently has never even read them.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Yes, it’s quite the stretch to imagine that the amendment has anything at all to do with reasonableness, isn’t it?

[Dilan Esper]

We know it has something to do with reasonableness. The question is whether the scope of the right can vary depending on where you are. And we have two examples- not just the Fourth Amendment- where it does.

[WuzYoungOnceToo]

We know it has something to do with reasonableness.

“We”? Do you have a mouse in your pocket? Try actually reading what I quoted and was responding to.

[Lee Moore]

The question is whether the scope of the right can vary depending on where you are.

As regards 4A I don’t think it’s the scope of the right that differs depending on where you are, it is the reasonableness of the search which may differ depending on where you are.

Taking the concept of the distinction between the scope of the right, and its as-applied content, beyond “reasonableness” – imagine a restaurant which offers an “all you can eat” buffet.

If you pay the price demanded your right is indeed “all you can eat.”
But if the buffet starts at 11am and ends at 3pm, and you arrive at 2pm, it may be that “all you can eat” is different from “all the guy who showed up at 11am can eat.” Because he may have eaten all the good stuff before you showed up. And he may have had a digestive pause and may be ready to go again.

Both of you have equally scoped rights – all you can eat. But the as-applied content is different because you showed up late for the start.

[Sebastian Cremmington]

George HW Bush was a pro-2A president from Texas that signed school zone legislation…and then 2 years later his son ran for governor of Texas on an unabashedly pro-2A platform. So the notion Bush believed he was violating the 2A by signing the the legislation is absurd! The Supreme Court even took a case on the school zone legislation and didn’t overturn it as a violation of the 2A!?! Then in 2000 Bush ran for president and Kavanaugh and Roberts worked for Bush and there was no groundswell to repeal federal gun zone legislation!?!

So a city like NYC can effectively outlaw bearing arms outside the home by having school zones and laws making it illegal to discharge guns within a certain distance of schools that effectively cover the entire city.

[Nisiiko]

No, neither Bush was pro-2A. Saying something doesn’t make it true.

[Sebastian Cremmington]

Yes they were, you blabbering like an idiot doesn’t make something not true. Anyway, Kavanaugh, ACB, and Roberts are Bush loyalists and so they care about Bush’s opinions on various issues like his love of slaughtering babies in Iraq and the sanctity of marriage between a man with a pee pee and a woman with a wee wee.

[JSinAZ]

I do like the juxtaposition of “pee pee”, “wee wee” and “blabbering like an idiot”, as it does seem you do know something about blabbering, idiots , or both from a first-person perspective.

[Sebastian Cremmington]

Great comment JIZZinAZZ

[Gandydancer]

As opposed to any of yours, Crummyton.

[Nisiiko]

No. They weren’t. They didn’t do a single thing to advance gun rights. The senior supported all sorts of gun restrictions, opposed concealed carry, and many others. The junior said he’d sign a new AWB if Congress passed it.

Neither are 2nd Amendment supporters, and neither are conservatives.

[Sebastian Cremmington]

Bush’s 1994 was centered on signing concealed carry legislation Ann Richards vetoed.

[Gandydancer]

Politicians lie. Rain is wet.

[David Nieporent]

They didn’t do a single thing to advance gun rights.

Presumably you mean other than appointing 4 of the 5 judges that upheld such rights in Heller.

[Brett Bellmore]

“George HW Bush was a pro-2A”

Total nonsense, right out of the gate.

[Sebastian Cremmington]

He held himself out as pro-2A and pro-2A Americans voted for him—you contributed to “history and tradition” by voting for him and then voting for his son!!!

[Gandydancer]

I voted for Trump b/c his opponent was HRC, not because I believed he was actually Ann Coulter. He just loved them Dreamers!

[Gandydancer]

…and H-1Bs.

[Brett Bellmore]

Yup, Trump was a lesser evil vote for me, nothing more. I half expected him to pivot left on getting elected, and was pleasantly surprised when he didn’t.

Probably because the Democrats didn’t just burn those bridges, they nuked the ashes afterwards.

[Gandydancer]

My take is that he DID pivot towards trying to be a more Establishment (R). Hence his outsourcing SCOTUS picks to the Federalist Society guy. Coulter’s book clued him in to the $1000 bill lying on the sidewalk, but the Invasion was just a ploy for him. It only took him about a week to pivot from “They all must go!” to Pence’s idiotic touchback immigration scheme. But the leugenpresse took no notice, so I thought his getting the nom might move the Overton window. I didn’t expect him to win, so why care if he was not what he was being cracked up to be?

And, no, he never did build any Wall (not that I thought it was any solution to anything, but he DID run on it) and he was just fine with catch-and-release for a long time, though I do give him credit for Stay in Mexico. So, yeah, holding off the Bidenuistas for four years was a good thing.

But the claim that the Bushes are pro-2A on the grounds that they said so is idiotic, and I think Crummyton (or is it Lathrop?) is the Team Stupid member with the bee in his bonnet about Bush pulling the Trump-appointed Justices’ strings rather than their all (the latter two more than Gorsucks) just being the usual wothless GOPe types.

[Gandydancer]

Not being able to edit out the typos after you finally get to see your post is a real PITA.

[David Nieporent]

Perhaps if you had that ability, you’d have edited out the Nazi slogan that accidentally slipped in?

[Brett Bellmore]

“Held himself out as pro-2A” and actually BEING pro 2nd amendment are completely different things. Politicians lie, and GHWB lied a lot.

[Gandydancer]

~”Read my lips: I’m strong for the 2A.”

[Kazinski]

About that History and Tradition, did you hear the point your boy Kavenaugh made about Text, History, and Tradition in oral arguments Wednesday:

If the text is clear, there is no need to inquire further into history and tradition.

[WuzYoungOnceToo]

You argue like a slow 4 year-old.

[bernard11]

the urban jungle of New York City

This deserves a giant fuck you to Josh.

In 2019 Houston had about twice the violent crime rate of NYC.

And a significantly higher rate than Boston, Los Angeles, and San Francisco. The Houston rate was almost identical to that in Chicago.

So kiss my ass, Professor Blackman.

[Toranth]

???
What exactly set you off about the term?

[Bob from Ohio]

He was referring to the vast rat population.

https://www.automatictrap.com/blogs/news/5-most-rat-infested-cities-in-america#:~:text=5%20Most%20Rat%20Infested%20Cities%20In%20America%201,%E2%88%92%20and%20exterminators%20aren%E2%80%99t%20able%20to%20keep%20up.

[Nisiiko]

He grew up in NYC, you fucking moron.

[captcrisis]

He grew up in Staten Island. White, middle class. There’s a difference.

[Gandydancer]

Close enough to recognize the urban jungle for what it is, far enough away for its lack of vibrancy to contribute to a misleadingly low violent crime rate.

[bernard11]

Why is it an “urban jungle,” exactly, you asshole?

[Armchair Lawyer]

https://dictionary.cambridge.org/us/dictionary/english/urban-jungle

“city life, especially the unpleasant parts of it:
Traffic noise, pollution, huge concrete buildings – how can people survive in the urban jungle?”

[Kazinski]

One of the 5 boroughs of New York nevertheless.

I suppose the upper westside of Manhattan is the real NYC?

[bernard11]

WTF does that have to do with anything, you fucking moron?

[wolfefan]

Not unlike Alito, who made that ignorant remark about NYC subways.

[DaivdBehar]

If one grew up in NYC, remarks about it are informed, not ignorant.

[Commenter_XY]

What ignorant remark? I ride the NYC subway and it is like a fucking zoo combined with a carnival.

[captcrisis]

Why do you say that? The brown faces maybe?

[Sarcastr0]

Eh, the NY Subway does have a pretty…nonstandard aesthetic to it that cuts across a bunch of races.
I’m quite comfortable napping on it though.

[Brett Bellmore]

Do you have any idea at all just how annoying your projecting your racism on the rest of us really is?

No, probably not.

[bernard11]

I’d say it’s a good guess.

[Kazinski]

Well Brett, as Glenn Greenwald pointed out earlier this week, White liberals own the topic of racism, it’s theirs to trot out for use whenever they need it for any of their own purposes.

I’ll also point out that the Black Public Defenders of the Bronx, et al, in their brief said that NY, and NYC gun laws are as racist as fuck.

[WuzYoungOnceToo]

Why do you say that? The brown faces maybe?

You should spend some time asking yourself why the mention of a zoo and a carnival made you immediately think about “brown faces”.

[Commenter_XY]

captcrisis, I’ll assume you’re being witty and acerbic.

Do you ride the NYC subway with any regularity? I suspect not.

First, the smell as you descend the stairs does not gently waft to your nostrils. No captcrisis, your nose is assaulted with the stink of urine, feces and vomit. Second, in the afternoon I can usually count on seeing 2-3 subway vendors on the subway selling belts, candy, condoms, whatever. The impromptu price negotiations are fast and furious.

You see any race thing here? I don’t. I spoke of the environment.

[Gandydancer]

You’ve got your misleading talking point down pat, I see.

“All these people with illegal guns: They’re on the subway, walking around the streets, but ordinary, hard-working, law-abiding people, no, they can’t be armed.”

For Alito to be “ignorant” I think he’d have to believe “ordinary, hard-working, law-abiding people” CAN “be [legally] armed”, as opposed to only the nomenklatura being able to get permits to carry when “walking around”. YOUR ignorance on the other hand is fully demonstrated when you regurgitate the claim of the headline, “Alito Floats Allowing Subway Riders To Carry Guns” when “walking around” (INCLUDING in subways) is the actual subject of his comment.

[Gandydancer]

…the only mention of subways, in fact, is his comment that the THUGS carry guns there. Jeez.

[Gandydancer]

Houston says “Fuck you!” to bernard. Unlike NYC it hasn’t had a Republican Mayor since 1982, so it’s resentful that bernard doesn’t appreciate its vibrancy.

[Gandydancer]

I will ad that Houston is only about 50th in vibrant…er, I mean violent… crime. https://worldpopulationreview.com/us-city-rankings/most-dangerous-cities-in-the-us
https://en.wikipedia.org/wiki/List_of_mayors_of_Houston

[WuzYoungOnceToo]

the urban jungle of New York City

This deserves a giant fuck you to Josh.

You shouldn’t be angry at other people because of your own child-like ignorance.

[Charles Nichols - CRTC]

That “question” was debated in my California Open Carry lawsuit years ago (my lawsuit was filed on November 30, 2011) in the district court. The State of California argued that the Second Amendment right to openly carry firearms can be limited to counties with a population of fewer than 200,000 people and excluded from populated places.

The district judge (Samuel James Otero) simplified things by comparing firearms to crystal meth and people who carry firearms to dealers in crystal meth. Contrary to both the United States Supreme Court and the California State Supreme Court, Judge Otero held there is no right to even possess a firearm.

On appeal, I still challenge the population and residency restrictions on California’s handgun Open Carry licenses ( more precisely, all restrictions and the license requirement in its entirety).

On appeal, the State of California changed its tune. The State’s argument on appeal is that the Heller opinion was wrongly decided. There is no right to keep and bear arms anywhere, not even in the curtilage of my home.

Some folks write law review articles but don’t actually file lawsuits challenging unconstitutional laws.

Meanwhile, the NRA through its official state organization is on its third appeal in which it once again argues that California’s Open Carry bans are constitutional.

[Gandydancer]

You mean TX wasn’t the first State to write a law premised on the idea that current SCOTUS precedent will be overturned?

Except SB8 at least provides that there will be no penalties for Casey-compliant abortions unless/until Casey is overturned.

Abortion is of course a much more fundamental right than the right to bear arms so the pro-abortion folks get a spot on the rocket docket to ask for (and, I am told, probably get) a completely novel pre-enforcement injunction while gun-rights types get the slow train across the country. Because, reasons.

[Armchair Lawyer]

“Some folks write law review articles but don’t actually file lawsuits challenging unconstitutional laws.”

The Law Review articles have their purpose however, in influencing judicial thought. Especially when they are well written.

[Bob from Ohio]

“General Underwood”

Sigh. General of course is not a title but a scope of authority.

“The term was originally used to refer to any person who holds a general power of attorney to represent a principal in all matters.” wikipedia

[Longtobefree]

English is racist.

[Michael P]

Yes, the Normans who gave us Law French really had it in for the Anglo-Saxons.

[Kazinski]

That’s how the Supreme Court addresses her, so you can hardly fault Josh for following suit.

[WPHDM]

Texas SG gets addressed as General in Texas Surpeme Court too.
Heard it while watching (we have video too, not just audio). It was Kyle Hawkins at the time, the one who didn’t sign on to AG Ken Paxton’s lets-overturn-the-elections lawsuit in the SCOTUS).

[bernard11]

I have heard the title used often to refer to AG’s, including assistant AG’s.

Still, I agree with Bob that it’s technically inaccurate, not to say pretentious.

Even in the military, the title was originally an adjective, used to identify someone as a general officer.

[Doug Heffernan]

If scotus erases the ny law, residents of the grittiest ghetto/hood should be allowed to pack just as much heat as every straw chewing yokel on the canadian border.

Population density or crime rate are not synonymous with “sensitive area”. Designations of sensitivity will surely be arbitrary, but it just can’t be because some area is chock full of poor minorities. And even if that happens, residents of those areas should have some way to transport their weapons to a non-sensitive area, like, for example, wall street. Otherwise those residents will be trapped in their homes with their guns, with no way to carry them publicly to a non-sensitive area. Again, like wall street or other wealthy areas of new york city. Or, even if someone from the ghetto wants to go farming upstate, how would they get all of their guns up there?

There never should be any constitutional-rights-free zones.

[Longtobefree]

If all states have to recognize each others driver and marriage licenses, why can they ignore gun licenses?
The only geographical restriction on any right guaranteed by the US Constitution is the entirety of the USA (and possessions)

[NM-Steve]

States do not have to recognize each others driver’s licenses, and the issue of whether they must recognize each others marriage license has been a matter of some dispute (e.g. the Defense of Marriage Act, aka DOMA). IIRC, the Supreme Court struck down the relevant portion of DOMA on equal protection, not full faith and credit, grounds. The legal landscape has changed significantly since then, but it highlights disagreement and confusion over the clause.

To quote Mr. Volokh, “Thus, a state has no constitutional obligation to recognize driver’s licenses from other states. I’m not sure whether there’s some federal law mandating such recognition, or whether states just do it as a matter of “comity,” which is to say out of a desire to work well with other states (and to get reciprocity for their own citizens). But in any event, such recognition was a democratic choice, not a constitutional command. Likewise, states can often do refuse to recognize out-of-state professional licenses, such as licenses to practice law or medicine.” (post of July 18, 2007).

If a state did try and not permit out-of-state drivers to drive on its roads without a native license, there might be some sort of commerce/dormant commerce argument that would carry more weight than “full faith and credit.” But AFAIK, there is no current constitutional requirement.

[Kazinski]

There is no explicit constitutional right to drive, but there is to bear arms.

I think it’s been minimally addressed with the congressional peaceable journey law, but a right to bear arms outside the home shouldn’t stop at the state border. So I think it will have to eventually be addressed, assuming they find a right to bear outside the home.

[Alpheus W Drinkwater]

If that is true, I think you are addressing the question of whether a state can require a license to carry a gun, rather than whether a state must recognize another state’s license.

[rsteinmetz]

If one state were to not recognize another’s drivers licenses, that would likely set off a war of sorts with police in other states pulling over any car with the incorrect license plate and ticketing drivers without the correct state license.

I am a licensed Architect in several states. While a license for each state is required the requirements are fairly uniform and all state use the same national examination. Years ago California decided they needed to write their own examination and force anyone who wanted to practice Architecture in California to take and pass it. They then blandly asserted that however other states should naturally accept their examination as equivalent to the examination everyone else used. You can imagine how well that went over. California backed down.

[Moderation4ever]

All Constitutional rights come with some limitations. Most citizens accept the limits on access to firearms based on things like age, criminal record and type of weapon. So could we say that the right is universal but the limitation may be defined by geographical characteristic, namely higher population densities.

Fire arm hunting is a accepted example. Hunting rules often limit where a gun may be used, limiting firing near roadways or in close proximity to houses. If hunting near houses is prohibited because you might unintentionally strike a person, would the same not be true of discharging a firearm in a high population urban area?

[Nisiiko]

Hunting isn’t a constitutional right. Bearing arms is.

What a stupid argument.

[Sebastian Cremmington]

Great comment. I personally believe the murder charges against Rittenhouse are unethical and the prosecutor should be disbarred…but also included are charges of recklessly endangering safety by discharging his weapon and apparently a bullet hit near a bystander. So I believe that is a legitimate charge because just because someone threatens your life doesn’t mean you can endanger other people’s lives. So in a city like NYC density becomes an important issue not necessarily bearing arms but with discharging said arms.

[Moderation4ever]

Thanks for acknowledging my point. The fact is that in high density areas there are incidents of non-targeted people being struck. In some cases police officer have fired weapons and struck non-targeted people. In a recent incident in Madison, WI a police officer discharging his weapon stuck a fellow officer. The struck officer was not significantly injuried thanks to a protective vest. The point is that even a individual trained and practiced at using a weapon can stike an innocent individual.

My feeling are that while US citizens have the right to have a gun, their also need to have personal responsibility. You must ask if you have the mental and physical abilities to handle a firearm in a high population area. If you discharge that firearm and strike an innocent, you don’t have the right to be exonerated but calling it an accident. You engaged in a risking behavior and are responsible for what happened.

[WuzYoungOnceToo]

Your little circle-jerk of praising one another’s stupid arguments is nauseating.

[Krayt]

If your life is endangered (and I make no comment on this case as I don’t know it well) and you fire in self defense, and it hits a bystander, wouldn’t that count as a murder by the person attacking you, the same way it would if an officer shot at a fleeing suspect from a violent bank robbery and hit a bystander (or second bank robber, for that matter) and that death is legally pinned on the bank robber?

[Moderation4ever]

First many, possibly all, police departments prohibit shooting at fleeing suspects for the precise reason that an untargeted bystander could be hit.

Second response is can you really make the case that your life was in danger? Police officer are trained and have specific instruction on when they can use deadly force. If you fire and hit a untargeted bystander you can be expected to show that your action was responsible.

[WuzYoungOnceToo]

Second response is can you really make the case that your life was in danger?

One can make the case that it was reasonable to conclude that one’s life was in danger…which is done all the time in self-defense cases. Is this news to you?

[Moderation4ever]

You can make the case that your life was in danger, but there is no guarantee that will be accepted. Even police are finding that they come under a lot of scrutiny after a shooting.

[WuzYoungOnceToo]

You can make the case that your life was in danger

So your question was pointless.

, but there is no guarantee that will be accepted.

And…?

Even police are finding that they come under a lot of scrutiny after a shooting.

Yes, and it has nothing at all to do with this fantasyland notion you have about their superior firearms and use of deadly force for self-defense training.

[Jason Cavanaugh]

Since Wuz already handled the second paragraph, allow me to correct the ignorance displayed in your first.

“First many, possibly all, police departments prohibit shooting at fleeing suspects for the precise reason that an untargeted bystander could be hit.”

Police are generally prohibited from firing at a fleeing suspect because THEY AREN’T A DEADLY THREAT SO YOU CAN’T JUST FUCKING SHOOT THEM IN THE BACK.

Police are not held liable for properly discharging their firearms at a suspect, even if they miss with some (in actuality, they miss with MOST) of their shots.

You have absolutely no idea what you’re talking about.

[Moderation4ever]

First we are agreed that police can not just shoot at fleeing suspects.

Police may not be held liable when an unintended target is hit but cities pay out big dollar settlements when this happens. Police do not get charged because they have qualified immunity. Private citizens do not have this immunity.

I know more than you think I do.

[WuzYoungOnceToo]

First we are agreed that police can not just shoot at fleeing suspects.

No, you’re not agreed…because that wasn’t the extent nor even main focus of your claim. Are you being obtuse here, or intentionally dishonest?

Police do not get charged because they have qualified immunity.

I’m going to go with obtuse. You might want to back and get caught up on the news headlines for…oh, say…the past decade.

I know more than you think I do.

But not even remotely as much as you think you do.

[Rigelsen]

“Police do not get charged because they have qualified immunity.
…
I know more than you think I do.”

The first statement argues against the second. Hint: qualified immunity has nothing to do with criminal liability.

[David Nieporent]

Police officers have less firearms training than most gun enthusiasts, and their specific instruction is “do whatever you want as long as no court has said those exact said of facts is unlawful.”

[Michael P]

No, the same would not be true of discharging a firearm in a high population urban area, because hunting near houses is not the usual reason one carries a firearm in high population urban areas.

Do you think big-city police officers should be disarmed because they might (and do) strike innocent bystanders with pistol shots?

[Gandydancer]

Exacly no one is asserting that the right to bear arms is the right to fire it when doing so is unreasonably dangerous to people undeserving of being shot.

The population of the US is in no State so dense that that justified defensive use is ordinarily too dangerous for the constitutional right to not be allowed exercise outside the hime. Otherwise, why are cops allowed guns?

[Armchair Lawyer]

A better analogy is the right to vote. We accept certain limits on the right to vote, for example age, criminal record, and only voting in elections for where you live.

So, we could say the right is universal, but the limitation may be defined by geographic characteristics. Indeed, perhaps in higher population density areas, we could limit the right to vote.

[Moderation4ever]

But we do limit the right to vote in high population areas. Legislatures can set up voting rules that make voting harder in high density areas.

[Armchair Lawyer]

” Legislatures can set up voting rules that make voting harder in high density areas.”

Can they? How so? By most measures, it’s far easier to vote in high density areas. Polling places are far closer, for example.

[Jimmy the Dane]

If anything population density is MORE of a reason to secure your right to self defense. I’m not worried about someone mugging me while I’m driving down the road all alone in rural Kansas. Sitting on the subway in NYC though, that is a completely different story.

[Nisiiko]

It’s less about the density and more about the makeup. The right to bear arms is most needed when you’re around a lot of a certain group whose members routinely bloc vote between 90-97% for Democrats.

[Doug Heffernan]

Exactly. Righteous residents of red districts need to be armed to the teeth in order to protect themselves from residents of blue districts. If the residents of the blue districts get all armed up too, then it just makes it that much more difficult for the righteous residents of red districts to defend themselves.

So, some population density based rule might actually help the righteous residents in their noble effort to defend themselves. What ruins that idea is when the good people of the country need to travel into those dangerous democratic areas. Those good people shouldn’t have to make that trip unarmed. Maybe there is some other way to unarm the bad people in those democratic areas.

[Jimmy the Dane]

I concur that we must make sure blue state residents remained unarmed. It will be much harder to take care of them when the time comes if they also have guns.

[Doug Heffernan]

Thanks, but I was hoping that someone might respond to say that such an idea was kinda insane, if not full-bore mentally ill. But I still do appreciate the reply.

[Gandydancer]

I’m in the bluest of deep blue states, which doesn’t mean that I couldn’t use a belt-fed fully automatic weapon to deal with the dangers of passing near my town’s densely-populated-with-thugs vibrant areas. And there were race riots when MLK was shot (when she was a kid my wife’s car was stoned in that) and when St Floyd died of Fentanyl (including in shopping areas I frequent), so there’s that.

[Rev. Arthur L. Kirkland]

That is tough talk from precisely the type of clinger who has spent his life with the soles of his betters’ shoes on his bigoted, whimpering, all-talk right -wing tongue. Helping to shove a half-century of progress down the throats of Republican clingers like Jimmy has been a privilege, a joy, and a very proud accomplishment.

With respect to the future. . . Open wider, clingers. Or, try to stop complying with the preferences of better Americans, and the liberal-libertarian mainstream will help you continue to toe that line. Either way, you can continue to whine as much as you wish, but you will comply. As always.

[Gandydancer]

Don’t lie. The only “help” you’ve ever done is help yourself at the dinner table, asshole. To the rest of Team Stupid you’re just an embarassment, even if they don’t know it.

[Sarcastr0]

Hey look another intimation of violence from Jimmy!

[Gandydancer]

You think you have impunity, but that sometimes the Tree of Liberty needs watering is simply just and true.

[Sarcastr0]

Nah, wanting to kill your political opposition just makes you a fascist, fucko.

[Rev. Arthur L. Kirkland]

“I concur that we must make sure blue state residents remained unarmed. It will be much harder to take care of them when the time comes if they also have guns.”

“You think you have impunity, but that sometimes the Tree of Liberty needs watering is simply just and true.”

It might have been foolish to expect a White, male, right-wing, stale blog to be any better than this.

Were I a Conspirator, the relatively frequent evocations of violence against mainstream Americans at this blog by its carefully cultivated class of conservative commenters might cause me to reconsider this blog’s appeasement of bigots; its regular publication of vile racial slurs; its incessant, misleading sniping against the reasoning. the educated, the modern, and the inclusive; and its repeated, partisan, viewpoint-driven censorship. But I am not a clinger, so I suppose I just don’t understand the Conspirators’ motivations or reasoning.

I sense I understand why Prof. Kerr bailed, though. My regret is that I did not provide enough free beer to him before he moved thousands of miles away.

To the rest of you, clingers and conservative commenters alike:

Open wider.

[bernard11]

So JtD and Gandydancer are typical of much of the right today – all too eager to kill those they disagree with.

Too bad the Republican Party supports and defends that.

[WuzYoungOnceToo]

So JtD and Gandydancer are typical of much of the right today – all too eager to kill those they disagree with.

Even ignoring your idiotic attempt to demonize half of the country….because you disagree with them…you’ve clearly been in a coma, or just generally braindead for the past 5 years.

[Jimmy the Dane]

I’m glad someone finally took the bait. I mean I had to leave that one sitting right there on the table for a long time before the usual suspects hopped on. Figured though maybe they were thinking “oh shit Jimmy is right….when those red state idiots try their next insurrection and we don’t have guns what will we do?????” and might have actually used their brains to think about a subject. But, alas, I was wrong and they still took the bait.

[Sarcastr0]

No one is actually worried about your regular fantasy about gun-toting yahoos managing to overthrow our government.

Best you’ll manage is some stochastic terrorism.

[Rev. Arthur L. Kirkland]

The shambling residents of our can’t-keep-up backwaters haven’t stuck with or accomplished much of anything useful throughout their downscale, desolate, childish lives. They have been getting stomped in the culture war so long as any of those losers has been alive. Expecting the clingers to overthrow their betters — the liberal-libertarian mainstream that operates our most important teaching and research institutions; our cultural institutions; our legitimate media; and our successful, modern states — is a particularly silly right-wing fever dream.

And, of course, a recurring theme at a White, male, right-wing fringe blog.

[Jimmy the Dane]

I’ve never said we need to overthrow the government. That is you taking sarc-license with reframing a comment, much like you always do. Maybe you should change you handle to BadFaithRo.

[Titus PUllo]

There is New York and then there is NYC…they have nothing in common…meet a New Yorker from Rome or Utica or Auburn..that is what a New Yorker is..meet a NYC cosmo type…not the timber that built America for sure.

[Doug Heffernan]

Something that they should all have in common is their constitutional rights.

[Sebastian Cremmington]

Exactly, and people taking domestic flights shouldn’t have to relinquish their guns either! Also I should be able to yell “HIJACK!” in an airplane just like I can yell “HIJACK” in the Wyoming wilderness because no amendments should have a “geography clause”!

[Doug Heffernan]

There is no better vacation experience than going to Cloud Peak, Popo Agie, Gros Ventre, or Jedediah Smith and doing a lot of screaming in the breathtaking Wyoming wilderness. If you haven’t screamed at the peaks the Bighorn Mountains, you’re missing out.

If scotus acts inappropriately here, we could lose all of that.

[Rev. Arthur L. Kirkland]

Sounds like the perfect day for five-year-olds of all ages.

(People should be free to yell among the backwater mountains as they wish. But not everyone thinks carrying guns around and screaming like a second-grader is the ideal vacation.)

[Gandydancer]

Something that they should all have in common is their willingness to defend Constitutional rights. But then there are the vermin who passed this law, and the people who vote for them.

[Rev. Arthur L. Kirkland]

Which part of a right-wing hayseed from Rome or Utica do you find most attractive?

The racism?

The superstition and gape-jawed gullibility?

The lack of proper education?

The misogyny and old-timely gay-bashing?

The insecurity, insularity, and hatred of immigrants?

The disdain of science and modern America?

The economic inadequacy and reliance on subsidization funded by modern, educated, successful America?

So much deplorability and dysfunction from which to choose,

Until replacement.

[Gandydancer]

Their most attractive feature is that they are not you, asshole.

[Rev. Arthur L. Kirkland]

Losing the culture war to guys like me seems to have made you too cranky and disaffected to function in modern society, Gandydancer.

This makes every hour I have devoted to defeating Republicans worthwhile.

[Sarcastr0]

I’m reading about Teddy Roosevelt, and actually NYC cosmo types were the timber that built America.

Just not in the mythology you subscribe to.

[Toranth]

Are you attempting to claim that New York City in the 21st century is the same as New York City in the 19th century?

[Sarcastr0]

No, but the ‘NYC cosmo type’ described with such contempt has been a thing since the Founding. In fact, it included some Founders!

It took and takes all kinds to build this great country of ours, and this is as silly as when liberals say we can do without the South.

[WuzYoungOnceToo]

No, but the ‘NYC cosmo type’ described with such contempt has been a thing since the Founding. In fact, it included some Founders!

That’s an asinine claim even for you. The ‘NYC cosmo type’ being referenced today has nothing at all to do with any “type” that might have existed in NYC at the time of the founding.

[Absaroka]

Is this Teddy Roosevelt, the North Dakota rancher?

In all seriousness, if more folks from NYC spent a couple years on a ranch, and more people from farms spent some time in NYC, we’d be better off. People have a terrible tendency to think their personal experience is universal.

[Sarcastr0]

I actually there’s a lot to that, especially if you extend it to how curated online communities are now able to supplant the local, more ideologically diverse communities people regularly had to interact with.

[Rev. Arthur L. Kirkland]

“People have a terrible tendency to think their personal experience is universal.”

I agree. Most people in the town in which I was raised have no idea what like is like in my current neighborhood, and most of my current neighbors and colleagues have no idea what life is like in my original hometown. I sense that is a problem that precipitates other problems.

[Nisiiko]

“A perfectly stupid race can never rise to a very high plane; the negro, for instance, has been kept down as much by lack of intellectual development as by anything else; but the prime factor in the preservation of a race is its power to attain a high degree of
social efficiency.”

[QuantumBoxCat]

The 1st Amendment doesn’t say anything about geographic location, yet what constitutes obscenity is inherently tied to local community standards. Why should a person’s 1st Amendment right change simply because they traveled from Las Vegas to Salt Lake City?

I have no qualms with the Court mixing principles of federalism with its nationalization of rights.

[Eric VonSalzen]

Assume for the sake of discussion that there’s a Constitutional right to abortion. But in Wyoming, there’s a shortage of people, so the Wyoming legislature makes a law that prohibits abortion there, because local conditions make it desirable to increase the population. Doesn’t that make as much sense as saying that the Constitutional right to keep and bear arms doesn’t apply in NYC because of the local conditions there?

[Gandydancer]

No, no, abortion is our highest sacrament.

[Nisiiko]

As is sodomy.

[Sidney r finkel]

“Later, Justice Kagan returned to Justice Thomas’s question. (We are all better off that the revised format has enabled Justice Thomas to share his wisdom)”

Oh that there was some to share. And maybe at some future date there will be, hope springs eternal the sages say.

And while I disagree with much of what Prof. Blackman writes, he is clearly a serious thinker and scholar who does his research and is to be commended for putting himself and his ideas out there and subject to critique. But a little less editorializing and inserting comments like the one above would help his reputation, acceptance and legitimacy.

[Intelligent Mr Toad]

I agree, it’s nice that Justice Thomas can now share his wisdom, but so far he hasn’t done so. I’m waiting for him to tell me which of Daniel Arthur Mead’s movies are the best.

[WPHDM]

I disagree. Snappy comments enliven the discourse (or does that sorta thing have to be denomitated levity?) … like the one about female supremes interrupting female supplicants before them, and keeping score on the incidence.
Question it raises: How can that best be blamed on the partriarchy?

[Sarcastr0]

A little less editorializing and inserting comments like the one above would help his reputation, acceptance and legitimacy

I think by now we know his audience for posts like this is mostly himself.

[Gandydancer]

Yet here you are, every time.

[Sarcastr0]

LOL, no I’m not here every time.

[Commenter_XY]

Maybe you can point us to the SSRN papers you have published, Sacastr0. Professor Blackman has published dozens. How about you?

Or…Maybe you can point us to the number of times you have testified before Congress, Sarcastr0 on a topic of national interest. Professor Blackman has at least four (4) appearances in the last decade. How about you?

Perhaps you can point us to your students who have gone on to make positive contributions to the legal field. Professor Blackman has many. If I am not mistaken, 1-2 might even have written a blog post here at VC. How about you?

My point: Perhaps you can illuminate us on your reputation, acceptance and legitimacy (and professional accomplishments) among your peers. Oh, you can’t (or won’t)? Then are you really the guy to be throwing stones at the glass house Professor Blackman occupies?

[Rev. Arthur L. Kirkland]

Pop quiz:

How many law schools — among nearly 200 in the United States — are ranked lower than South Texas College Of Law Houston?

___ zero

___ one

___ two

(To make this a sporting endeavor, I made it multiple choice. Everyone has at least a one-in-three chance* of success!

*Except, perhaps, graduates of the South Texas College of Law Houston.)

[Rev. Arthur L. Kirkland]

On a more serious note: If you are currently a student of South Texas College of Law Houston, consider whether applying to another school for third-year studies might be worthwhile. So far as I am aware, you are entitled to identify yourself as a graduate of the second school for all professional purposes.

Good luck.

[Sarcastr0]

Your argument is exactly why I added ‘for posts like this’.

[bernard11]

Professor Blackman has published dozens.

Mostly or entirely in law reviews. That’s OK, of course, but the editorial standards of law reviews are far below those of academic journals in other fields.

[Commenter_XY]

Yeah, ok….but how many SSRN papers have you published, bernard11? Let’s make it easier….how many published papers in journals (of any kind) do you have, period? Let me know, so I can read them and share my POV.

I don’t think you’re the guy to be throwing stones, either.

There is plenty to critique. For example, I personally dislike Blackman’s assigning letter grades to SCoTUS opinions. Irritates me to no end. But that is a style and presumption thing, on my part.

[Alpheus W Drinkwater]

“Maybe you can point us to the SSRN papers you have published, Sacastr0. Professor Blackman has published dozens. How about you?…”

There are blogs that limit the commenters to scholars in the field, like Jack Balkin’s blog. For this one, Prof. Volokh has chosen to allow comments from the general public. So we ignorant peons get to criticize our betters all we want. I don’t recall you making the same defense of Prof. Somin’s posts on immigration.

[Commenter_XY]

Alpheus, you make a fair point. You’re right. Professor Somin does need defending, mostly because of his erroneous thinking on immigration and the disastrous practical effects of his immigration proposals. I mean, aside from being completely untethered from reality when it comes to immigration, I find myself in agreement with Professor Somin more often than not.

Professor Somin puts it out there. That…I appreciate. He forces me to examine my premises, not that they could ever be wrong (just kidding!). I will make it a point to stick up for him, Alpheus, when I see something that gets me good and frosted.

[hobie]

Joshs’ celebrity is such that he now coins phrases

[Chip Watkins]

Accepting the permissibility of denying a license to bear a firearm because the applicant is of bad character (however defined), a geographical restriction (including so-called “sensitive” places, such as government buildings, schools, and sports arenas and stadiums) makes no sense. If I can trust you in the Hamptons, Ithaca, or Cooperstown, why can I not trust you in Brooklyn, Madison Square Garden, NYU, City Hall, or P.S. 256?

[Intelligent Mr Toad]

Because in Madison Square Garden, NYU, City Hall, PS 256, and parts of Brooklyn, we have more of these things called … can’t think of the technical term … oh, I know, it’s innocent bystanders. We have innocent bystanders and passers by, who might get hit if you shoot at someone whom you perceive (incorrectly, or correctly) as a danger or threat to your safety, and miss. That’s why we can’t trust you. Unless, of course, you agree to include “bad aim” or “bad aim in a crisis situation” or “insufficient training” as part of the meaning of “bad character (however defined)”, and therefore, as legitimate grounds for denying you a license.

[Brett Bellmore]

Well, then, instead of regulating IF you can carry, regulate WHAT you can carry. Regular pistols in less densely populated places, tasers in the dense areas. FMJ out in the open, frangible ammo that won’t penetrate walls in apartments.

Part of the problem here is that gun controllers are fixated on denying people guns, it’s the only solution they have for any problem, because denying people guns is their actual objective, and everything else is just an excuse to do it.

[Nisiiko]

That still doesn’t work. The problem is that you often go from dense place to not dense place. I don’t carry inside Walmart at night because I’m concerned about being mugged in there. I carry inside Walmart so that I’m protected on the way back to my car. So if this density and geographic argument is allowed to carry the force of law, then your level of protection will depend on the densest and most sensitive place you go to that day.

Also, the anti gun arguments are all in bad faith. I’ve heard the same people who say you shouldn’t be allowed to carry in a store and should have to leave it in the car say that you should have strict liability if your gun is stolen from that car.

[Intelligent Mr Toad]

That’s not bad faith. You have to leave your gun in your car, and you have to have a secure way to store it in your car. You’d do the same if it were a bar of gold.

[Nisiiko]

Note that I said “strict liability.” Strict liability means that you are liable no matter what steps you take to secure it.

I have a lockbox secured to the frame of the car that I keep in there for this purpose. It’ll stop a smash and grab from stealing my gun, but with the right tools and a few minutes, especially if you can work undetected, you can break into it.

There’s no fool proof way to secure something in a car. Period.

[Michael P]

By similar argument, police should be able to detain anyone in a high-crime area and search them for evidence of criminal activity, because there is an elevated chance that this will prevent future crime. After all, science shows that making punishment more certain deters crime now effectively than making punishment more severe.

[Nisiiko]

That argument would lead to police not carrying in dense areas too.

In the real world, concealed carriers rarely shoot bystanders, because crimes against them that require them to respond with force rarely happen with a lot of people around.

[Intelligent Mr Toad]

Does the First Amendment have a geography clause? No? Then why am I allowed to forbid anyone in my home from singing music composed by Puccini (which I hate)?

[WPHDM]

Geospatial variability in constitutional rights enjoyment

What about time, place, and manner regulation/restriction of group First Amendment practice, parade permits and such? Aren’t those also driven by urban space scarcity, traffic, and congestion concerns?

[Intelligent Mr Toad]

That sounds like a de-facto “geography clause” in the First Amendment. Even though it’s not there in writing. Must be in one-na dem pesky Emma-nations.

[Michael P]

Because you have certain rights as a private owner of real property.

[Nisiiko]

Unless of course, you don’t want to bake someone a cake.

[Rev. Arthur L. Kirkland]

Or you don’t want to hire employees gullible enough to fall victim to adult-onset superstition.

[Gandydancer]

You can’t punish someone for singing Puccini in your home. All you can do is demand they leave.

[Jason Cavanaugh]

I doubt that you’re what qualifies as an “intelligent” Toad if that’s the best argument you could offer.

The 1A restricts the behavior of the Government – not private entities.

[Alpheus W Drinkwater]

There is also intelligence in recognizing humor.

[Rev. Arthur L. Kirkland]

Time, manner, and . . . .what is that other one?

[Stephen Lathrop]

Seems like the notion of a uniform right to arms can go at least 4 ways (maybe more):

1. Gun rights mean an unrestricted right for everyone, everywhere, to own, carry, and use firearms lawfully in every public place, and in their homes. That might be subject to some limits on criminals, ex-convicts, the incompetent, and the insane.

2. Gun rights mean everyone, everywhere gets to keep and use firearms according to identical standards, including restrictions interpreted as constitutional, and imposed uniformly everywhere across the nation.

3. Gun rights mean whatever rights states protect, in the manner states choose to protect them, and differ from state to state. Except that in every state a militia privilege applies alike, according to the constitution.

4. There are no gun rights for anyone, except for a universal right to keep and bear arms in militia service under military-style discipline, and for self-defense in the home.

On the basis of a reading of the historical record, I argue that No. 3 above is the orginalist right to keep and bear arms. Leaving that aside, I am baffled by gun enthusiasts’ apparent determination to force No. 1 on the nation, including in states where relatively few gun enthusiasts now choose to live, and where none of them are forced to live.

The argument for No. 1 seems long-term unwise as a political matter. Its real utility to anything most gun enthusiasts would need to keep them happy is questionable too, in comparison, for instance, to No. 3.

I think gun enthusiasm as it now exists cannot last, because it already supports criminal violence at levels which the majority of Americans reject as unsustainable. What keeps the extreme gun enthusiast position going is ongoing failure among the public to connect gun prevalence with gun crime. Events will eventually change that, and force folks to conclude accurately that a gun owned by a law-abiding citizen today will too often later become a gun owned by a criminal—whether or not that criminal turns out to be the present owner or, more likely, someone else.

If per-capita ownership of arms continues to increase, some account must be expected of what happens to all those arms when their law-abiding owners die. Extensive private arsenals are unlikely to be passed along intact to law abiding heirs. They are more likely to be broken up to be sold to the public at knocked-down prices. When gun enthusiasts today crow about public safety, and insist that people are foolish who fear blood in the streets, they ignore an awful lot of blood already in the streets. A very large percentage of Americans regard that as a national disgrace, even though fewer of them have yet thought to blame it on gun prevalence. There is no guarantee that state of opinion will continue.

Manufacturing and selling more guns today means more guns in the wrong hands tomorrow. It is a process which cannot continue without limit. Keep it up, and in the future every baleful tendency the nation encounters will be made worse for it.

[Brett Bellmore]

Manufacturing and selling more printers today means more printers in the wrong hands tomorrow. The rate of forgery is going to go sky high!

[WPHDM]

Bad analogy

Printers have a limited lifespan, firearms can be good for centuries, and thus the per-capita rate increases over time with ongoing sales. Second, much of what was in the past subject to being forged is no longer (at least not by physical duplication/printing) because those papers of value or of legal significance now take the form of PDF or electronic images in some other format (such as tiff or jpg). And there are other means for electronic authentication online and off (though not perfect either). Third, guns are means to kill (by design) while the same is not true of printers both as to ordinary use or misuse for criminal purposes (such as forgery). Someone’s skull could of course be smashed with a printer, but then there are many other objects that could accomplish the same. So, it would not be rational from a public policy perspective to regulate/restrict printers in order to reduce the incidence of head-smashing homicides.

[Stephen Lathrop]

Bellmore, there are no printers in the wrong hands.

Every time you say, “law abiding gun owners,” you tacitly acknowledged what everyone else also believes—that there are plenty of guns in the wrong hands.

[Toranth]

No printers in the wrong hands?
And yet, they’ve been used for copyright violations, fraud, defamation, forgery, and NDA violations, just off the top of my head.

That’s just as much a printer in the wrong hands as an illegal shooting is a gun in the wrong hands.

[Gandydancer]

The first sentence of #3 was correct, but then the 14A was passed.

The second sentence of #3 makes no sense. That the Federal government can’t interfere with State militias doesn’t require anything of the States.

[Armchair Lawyer]

The “militia” refers to the unorganized militia. Which is every able-bodied man between the ages of 17 and 45 who isn’t in the National guard.

The “militia service under military-style discipline” is what was previously referred to as the “select militia.” This was deliberately worried about by the founders, a “select militia” which would effectively be a standing army.

[Intelligent Mr Toad]

Did the Founders ever anticipate that the militia would itself become a threat to the security of a free state?

Did they ever anticipate that the right to keep and bear arms would be an exacerbating component of a threat to the security of a free state?

[Armchair Lawyer]

“Did the Founders ever anticipate that the militia would itself become a threat to the security of a free state?”

Given the “revolutionary” history of the Founders, and their use of the militia against the lawful government of the time…it may have occurred to them, yes. Although, they may have thought if it was necessary for the militia to act in such a way, the state wasn’t exactly free….

[Toranth]

Are you familiar at all with the history of the colonies and the early US?

[Nisiiko]

On the basis of a reading of the historical record, I argue that No. 3 above is the orginalist right to keep and bear arms. Leaving that aside, I am baffled by gun enthusiasts’ apparent determination to force No. 1 on the nation, including in states where relatively few gun enthusiasts now choose to live, and where none of them are forced to live.

Are you as baffled by abortion and gay marriage enthusiasts apparent determination to force those on the nation, including in states where people don’t want them?

[Jason Cavanaugh]

“I think gun enthusiasm as it now exists cannot last, because it already supports criminal violence at levels which the majority of Americans reject as unsustainable.”

A correlation which is obviously false to anyone who’s bothered to look at two simple graphs:

Firearm ownership vs. violent crime statistics.

What would that most-basic-of-research demonstrate? That over the last 40+ years violent crime has plummeted while gun ownership has exponentially skyrocketed.

So to make the claim that “[gun enthusiasm] supports criminal violence” is the claim of someone who’s spent at least the last four decades with their head up their ass regarding this subject.

[Sarcastr0]

Always fun to see clearly people who know better egging on rural conservative-types to get it very wrong as to what living in a city is like.

[Gandydancer]

Who here do you imagine is rural?

[Sarcastr0]

The ones who say they have a fear of walking unarmed in NYC lest they get mugged immediately.

Perhaps I am being too kind in chalking it up to a sheltered upbringing.

[Nisiiko]

Nobody said that

[Rev. Arthur L. Kirkland]

Plenty of Volokh Conspirators mention that they are glad they do not live in communities plagued by college graduates, successful employers, Blacks, graduate degrees, universities, and the like.

[Rev. Arthur L. Kirkland]

commenters, not Conspirators

The Conspirators have mostly voted with their feet, by living in D.C., Los Angeles, Chicago, and the like.

[apedad]

Does The Second Amendment Have A Geography Clause?

No, but it’s also a non sequitur question.

SC decisions are never mandates; they’re only goal posts.

So if NYC wins that doesn’t mean Jackson Hole, WY, now has to adopt the same process as NYC’s.

However, if Jackson Hole ever wanted to impose the same standards, then they know what the constitutional limits are.

[Gandydancer]

NYC isn’t a party to NYS Rifle & Pistol v Bruen.

If New York State wins then what everyone will know is that there ARE NO “constitutional limits” on State extinction of the right to bear arms. Or any other actual Constitutional right whenever SCOTUS is in session (except the sacred sacrament that is abortion).

[Brett Bellmore]

I wouldn’t be too enthusiastic about those three agreeing this is an issue. They’re almost certain to settle for leveling the right down to whatever would work in the most ‘sensitive’ place they can think up.

[Jerry B.]

Of course, strict laws against the possession and carrying of firearms work so well. See Chicago and D.C. for examples of a peaceful, unarmed community.

[Alpheus W Drinkwater]

Yes, it couldn’t have anything to do with the fact that one can obtain a firearm fairly easily in areas right next to Chicago and DC.

[ThePublius]

That’s a non-argument, since he said “possession and carrying of firearms,” which has nothing to do with availability of firearms to lawbreakers. The laws against possession and carrying of firearms only affect the law abiding. The criminals are just that, and don’t care.

[Nisiiko]

Why should they care? Unless they get caught merely carrying, which is tough if you conceal correctly, it’s only going to be an add on to whatever more serious crime they commit. There’s no real marginal cost to carrying illegally.

[Miles Fortis]

IF being able to “obtain a firearm fairly easily in areas right next to Chicago and DC.” is a cause of such great crime and murder there, the question arises : Do those areas also suffer from such a great amount of crime and murder.

[Ed Grinberg]

I don’t think this agreement will affect the bottom line in NYS Rifle & Pistol.

You can bet on that. The day Elena not-sympathetic-to-gun-rights Kagan votes to strike down a gun law will be the day hell freezes over.

[RobinGoodfellow]

OK, I gotta rant. It’s a pet peeve.

He’s not a “general”! He’s a solicitor general!

He should not be addressed as General Underwood. Solicitor general Underwood is OK. SG Underwood is fine. Mr Solicitor is good.

But he’s not a general!

And, while I’m at it, neither is the postmaster general!

General in these cases is an adjective.

[Nisiiko]

He’s not a “he” at all.

[HumanEvents]

I was happy when this topic came up during oral arguments. I realize the focus was primarily on the restrictions of carrying in the woods vs a more populated area, but the licensing scheme, in general, has geographic discrimination built into it. A concealed carry permit issued in any county is good in any other county, except for the five counties that comprise NYC, but a permit issued by an NYC licensing official is good anywhere in the state.

When you read the various consolidated laws of NY, you’ll notice that they often contain the line “except in a city with a population of one million or more” which is code for NYC as that is the only city in NY that has such a population. Because NYC more or less controls the legislature, carve-outs in state laws are made to allow the city to run itself as a de facto state in many instances.

For instance, if you are charged with a class B misdemeanor in NYS, you are entitled to a trial by jury unless you are charged in NYC, in which case it must be a bench trial. Another example is traffic laws, which NYS law says shall be uniform throughout the state, but then exempts NYC, which then provides for lower standards of mens rea and harsher punishment if convicted of the same conduct already prohibited by state law (https://law.justia.com/cases/new-york/court-of-appeals/2021/52.html).

This is an older but interesting scholarly paper on the issue of territorial discrimination as it relates to equal protection:
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3946&context=penn_law_review