Does Justice Sotomayor Really Want To Know What The Remedy Would Be If The Government Confiscated Everyone's Guns?

The remedy would not involve Rule 23.

Justice Sotomayor is pretty predictable. She walks into oral argument with a set of questions she wants to ask, and she will keep asking them, whether or not she gets the answer she wants. I imagine advocates get frustated, but that is part of the game.

During the birthright citizenship cases, Justice Sotomayor asked the same line of questions several times--apparently she thought it was clever. To illustrate the limits of the government's position concerning nationwide injunction, she would change the hypo: what would happen if the government sought to confiscate every gun in America; would every gunowner have to bring an individual law suit to seek relief?

Page 13: JUSTICE SOTOMAYOR: --so, when a new president orders that because there's so much gun violence going on in the country and he comes in and he says, I have the right to take away the guns from everyone, then people --and he sends out the military to seize everyone's guns --we and the courts have to sit back and wait until every named plaintiff gets --or every plaintiff whose gun is taken comes into court?

Page 41: JUSTICE SOTOMAYOR: If we're afraid that this is or even have a thought that this is unlawful executive action, that it is Congress who decides citizenship, not the executive, if we believe, some of us were to believe that, why should we permit those countless others to be subject to what we think is an unlawful executive action, as unlawful as an executive taking the guns away from every citizen?

Page 44: JUSTICE SOTOMAYOR: --it got rejected repeatedly. We can go into the history of citizenship, but I still go back to my question. You claim that there is absolutely no constitutional way to stop, put this aside, to stop a president from an unconstitutional act, a clearly, indisputably unconstitutional act, taking every gun from every citizen, we couldn't stop that.

Does Justice Sotomayor really want to know what the remedy would be if the government confiscated everyone's gun? This remedy would not involve Rule 23.

Nearly 250 years ago, King George III and General Gage tried to confiscate the firearms from the Americans. What happened next? Lexington and Concord, the Shot Heard Round the World. As best as I can recall, the patriots did not go to a Court of Chancery to seek an equitable remedy.

We have a similar story in Texas history. During the Texas Revolution, the Mexican Army demanded that the Texians in the City of Gonzales surrender their cannon. What did the Texians say? Come and Take It! The remedy here was not equitable; it was belligerent. The Texians did not reply with a canon of construction; they replied with a cannon of destruction. This was the Lexington of Texas. And the Battle of Gonzales led to the Battle of the Alamo, which led to Texas Independence. Sensing a pattern of what happens when the government tries to disarm the people?

I took this photo during my visit to the museum in Gonzales.

I'm reminded of Judge Kozinski's opinion in Silviera v. Lockyer:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten.

There is an important lesson to be learned here. Courts cannot solve all problems. Courts should not solve all problems. Courts will not solve all problems.

Comments

[Botaglove]

Your example of a citizenry armed with muskets, anytime after the Revolutionary War, which was won by regular troops, not militias, succeeding in fighting off a tyrannical government? Any?

To note the one contemporary American example I can think of where citizens attempted to arm themselves to defeat oppression was the Black Panthers. Didn't work out for them.

[Stephen Lathrop]

What do you think of the Irish Troubles, and how they turned out?

God help us if anything like that gets started in this nation.

[Frank Drackman]

It’s been going on since 1619 except now it’s one side doing most of the killing

[Supremacy Claus]

Sotomayor is a Democrat, as most lawyers and judges are. They are Marxists. This is an unnatural doctrine that must be imposed by force. All mass murders have been preceded by gun control. The oligarchs behind any serious gun control movement should be visited first.

[Supremacy Claus]

Learn from all genocides. The Jews could not have gone up against the German Army. However, early on, they could have eradicated the 20 families that put Hitler in power. He expressed all their ideas. Five were in America. Go Biblical on the oligarchs that promote mass murder. They are not hardened targets. These families profited from plunder, from war industry. Instead of being executed after the war, they were recruited to rebuild the GErman economy. A few functionaries, including Nazi judges, were hanged for a stupid show. The real causes of this catastrophic war got richer than under the Nazis.

[Speaking for normal people]

BP were the agressors.

“Although I raised money for a Black Panther school and attempted to help the Panthers develop a learning center, I never joined their organization or advocated that others should. The money I raised was to purchase and build a school. I became involved with the Panthers only after their leader, Huey Newton, had publicly proclaimed that it was “time to put away the gun.” In those days The New York Times was comparing Newton to Mahatma Gandhi and Martin Luther—literally. When I recommended Betty van Patter to the Panthers as a bookkeeper, I accepted the left’s view of the Panthers as victims of white racism and a noble force in the struggle for racial justice. I had no idea they were capable of cold-blooded murder.”
― David Horowitz

[Brett Bellmore]

The Constitution contemplates a militia system active all the time, and armies raised as needed, with the militia buying the time to raise the army in cases where they're not sufficient themselves.

The reason it was set up that way is that is how the revolutionary war went down: If not for the militia, it would have all been over before we could have raised regular troops. And the militia became the basis for those regular troops!

Mind, this was all set up in the expectation that we wouldn't be volunteering for optional wars, but would instead only get involved in wars when invaded. Militia systems are terrible for wars of aggression, such as the War of 1812, which is why we eventually abandoned it. Works great otherwise.

[y81]

The Taliban did pretty well against a regular army.

[Botaglove]

With automatic weapons and pistols? Or are you suggesting the Second Amendment protects your right to have a stinger?

[jimc5499]

Actually the phrase "well regulated militia" in the 2nd makes a case for private ownership of automatic military grade weaponry including Stingers. The Citizen has a duty to augment the military and needs to have access to the same equipment as the military.

[JoeFromtheBronx]

The Constitution differentiates the militia (which states have the power to have) and the military.

Art. I, sec. 10: "No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace"

The state militia having "automatic military grade weaponry" is far from clear. The covered arms obviously do not just cover 18th Century technology, which is a strawman argument.

The concern is that modern weapons are more dangerous, for instance, and that is a concern when regulating them especially in highly crowded urban areas and around children etc.

The "same equipment" would include nuclear weapons and all the rest. I do not think that was what personal rights to arms is meant to cover. State militia, which were led by the governor, would have some technology, vehicles, and such, yes.

[Miles Fortis]

"are you suggesting the Second Amendment protects your right to have a stinger?"
You are simply another one who doesn't understand 'rights' and that the Bill of Rights is a restriction on government, not a permission grant to the people.
Yes it DOES 'protect' that right because the word used is "ARMS" not guns or rifles or pistols.
I use a quote from a founder, Tench Coxe:
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an Americans.
And one of those well known 'terrible instruments was actual Cannon, able to destroy a city by their fire. And which was one instrument the British were out to confiscate or destroy on April 19, 1775.

And if you think 2A only somehow covers Arms in existence at the time it was ratified, the Supreme Court addressed that fallacy in Heller:
"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

[Miles Fortis]

You apparently think that 'direct military operations' is the only thing possible, when 4th & 5th generation asymmetrical operations primarily target the minds and will of a corrupt political leadership, in one way, or another.

[Bob from Ohio]

"won by regular troops, not militias"

Sorta. Militias fought with the regulars at most battles. The militia victory at Kings Mountain drove Cornwallis into Virginia.

The regular army, raised from scratch on a state by state basis, its soldiers mainly on short enlistments and officer-ed largely by amateurs, was little better than a militia.

[Stupid Government Tricks]

The militia contributed more to winning Saratoga than the regulars.

The militia hounded Cornwallis so much in the southern colonies that he fled north into the Yorktown trap.

The militia made life miserable for the Redcoats.

You also forget the Deacons for Defense and Justice.

Some militia overturned a corrupt election in Kentucky, I think, around 1948.

Whatever history you learned didn't teach you much.

[Stephen Lathrop]

Poor Blackman doesn't get that Trump would announce confiscations of guns selectively, only from people Trump's supporters don't like. Or only in sanctuary cities. Or from members of law enforcement who have tried to enforce criminal charges against Trump's principal financial backers.

I expect there would not be the slightest show of violent resistance among the Trump/MAGA crowd if stuff like that happened.

[Speaking for normal people]

Of course you 'expect' --- beats thinking 🙂
3 logic errors
1) of course it would be selective confiscation !!!!!!!!!!!!!
"There are approximately 398.5 million firearms in possession in the U.S"

2) How stupid to ascribe unanimity to Trump supporters when all analysies of both elections show a very large part of his supporters were refugees from a demented Hillary or a stupid Kamala
Read The Great Revolt: Inside the Populist Coalition Reshaping American Politics
by Salena Zito

3) You juist defined your answer in your premise !!!! Who is a Maga?
You answer : "not be the slightest show of violent resistance " makes you MAGA

Damn, good thing you aren't married or a politician. AOC would be making jokes about how clueless you are 🙂

[Swede425]

LOL!
"I expect". I'm sure that you do.
I hope you lay awake at night, sleepless, worrying about all the things that Trump will do.
But instead you'll just shrug your shoulders and go "oh, well" when none of those things happen.
Just like last time he was president.

[ah....Clem]

Poor Blackman doesn't get that Trump would announce confiscations of guns selectively, only from people Trump's supporters don't like.

Yes, this is exactly why Blackman's counter to the hypo fails miserably. Since only "those people" would have their guns taken, it's wouldn't be an issue.

And if the administration boldly claims without evidence that "they are all criminals anyway", the fair-weather libertarians will sit on their hands.

[Martinned]

Why are all these far right keyboard warriors always salivating about a civil war?

[Krayt]

And why is "the other side" always salivating about gun confiscation? The taking of guns "peacefully", as the owners, in spite of the second amendment, just roll over because, you know, their betters have told the deplorables they will do what the betters say, because they're better, and you're deplorable.

[Stephen Lathrop]

Krayt — Is it your impression that Sotomayor expressed herself in favor of gun confiscation?

Also? Make it a point to notice, the leftish commenters on this blog are not the ones who keep bringing up gun confiscation. I suppose you think that shows they are keeping their real intentions under wraps. Which is why it is so necessary for right wingers to keep bringing it up.

[Miles Fortis]

You have a vivid and projecting imagination.
Do you get paid to smear people?

There is no 'salivation'. There is a hope that a warning of the utter calamity that would ensue if a tyrant minded goobermint ever decided such a course of action will stop such idiocy in its tracks.
Many have opined that a "CW2" would be something akin to Serbia + Rwanda combined with American ingenuity at bloodletting.

[Brett Bellmore]

Well, yes, obviously serious advocates of gun confiscation are either in denial about how violent the response would be to it, or salivating at the opportunity to sic the military on the opposition.

Gun control advocates who are serious in a different way understand that, and were pursuing a strategy of generations long attrition.

[Sarcastr0]

'Do what we want or there will be violence' is an awful argument. It has no legal moment, and it reveals the one making the argument is fine with using violence to get their way.

[Brett Bellmore]

In this scenario it's the gun controllers themselves saying, "Do what we want or there will be violence." Because it's not like the proposed gun confiscation would be voluntary. No, "and he sends out the military to seize everyone's guns" is not a peaceful scenario. Even if accomplished by the enactment of (unconstitutional!) laws, it's not a peaceful scenario. Law is enforced by violence, without violence backing law, nobody pays any attention to it.

So it's not a case of my side saying "Do what we want or there will be violence." That's YOUR side. My side is saying, "Molon labe".

[Sarcastr0]

I don't think anyone is saying that, though. You need to go through logical hoops to explain that this is what Sotomayor or whomever *really* means.

You're just mirroring your position with your hypothetical opposition.

Thing 1 to bring about our comfy abundance is we got there by deciding not to do individualized violence towards what we think is good. There's a *reason* why we give a monopoly on violence to the state. You invoke The Leviathan enough, you should read it sometime.

The enthusiasm and ease at which a certain segment of gun rights people hit the 'and then there will be blood!' is pretty screwed up.

Of course you and Blackman are part of that wanky and unhelpful crowd.

Luckily, most folks who like guns and gun rights aren't like that; it's just the loud ones tend to be keyboard warriors.

[Brett Bellmore]

"I don't think anyone is saying that, though."

You know what? Bullshit. You know better. Everybody who advocates gun control laws is advocating resorting to violence against anybody who fails to do as they're told. That's what advocating a law MEANS! That you want the government to get violent with people who don't obey!

If you didn't want the violence, you'd be advocating some kind of non-binding Congressional resolution, instead. Not a law!

So, screw this business of pretending that you can advocate laws, and not be advocating violence. I'm not going along with that nonsense.

This is literally a discussion of Sotomayor proposing, in the event of a hypothetical military confiscation of firearms, a judicial response.

As if at that point the judiciary would have anything to do with what was happening. A President who sent the military door to door confiscating firearms wouldn't CARE what the judiciary said, it would be way past that. It WOULD be time for us to fight back, or just lay back and take it.

[Sarcastr0]

Everybody who advocates gun control laws is advocating resorting to violence
Plenty of gun control that's not confiscation. You just want to live in a political thriller.

'All law is violence' isn't how people actually interact with society.

Most of us moved on from sophomore year philosophical wanking.

Your hypothetical kinda shows how your argument doesn't fit in a legal context at all...you're just so pickled in hypothetical righteousness you can't tell reality anymore.

You and Ed and CW2 wanking.

[Brett Bellmore]

"Plenty of gun control that's not confiscation."

Yes, and even the gun control that's not confiscation is based on threats of violence. Without the threat of violence, and occasional execution of violence to make the threat plausible, people routinely ignore laws.

Take NY in 2013: They banned 'assault style rifles'. But because they weren't up for actually enforcing the law with violent raids, the compliance rate was estimated to be under 5%.

You want to threaten people who won't do as you say, and pretend that you're peaceful because you're delegating the violence to police, who will remain peaceful so long as everybody obeys you.

But we have no reason to humor you in this: If you want gun control laws, you want violence. Laws ALWAYS involve violence! That's why there should be far fewer of them.

[Rossami]

All law is violence' is precisely how people interact with government. Do not confuse "society" with government.

[Currentsitguy]

All law contains the implied threat of violence. Try ignoring a traffic ticket. Ignore it long enough and eventually men with guns will come to your door. Refuse to open it and more men with heavy equipment and weaponry will knock it down and drag you out, dead or alive. All laws are merely fancily dressed up threats.

[Sarcastr0]

I considered and discarded this take in college. It's Internet Tough Guy as a philosophy.

No, people don't walk around as though every government action includes the thread of violence. They also don't constantly think about Kant's ontological imperative, or Burke, or Bentham, Or Hobbes.
You're not acting like real people. But hey, this is the Internet. Where even if you're not sovereign citizen level crazy, you can play one.

[Squirrelloid]

Have you talked to a black person about encounters with the police? Because I have. That an encounter with law enforcement could become violent at any time is built into how many of them respond.

It is a special kind of privilege that allows someone to think that encounters with law enforcement aren't potentially seconds from violence at all times.

[ah....Clem]

Everybody who advocates gun control laws is advocating resorting to violence against anybody who fails to do as they're told.

The same thing can be said for everybody who advocates for any law about anything. We're not supposed to have any laws at all that are enforced by the penal system?

[Mike45]

'Do what we want or there will be violence' has been the left's goto argument forever. When WI passed Act 10 the symbol of resistance was the familiar fighting fist used time and again in the left's protests. The summer of love was the left's response to Trump's first election. Meanwhile the one day of the right's protest on Jan 6 was answered with four years of persecution of everyone they could find. Before the 2024 election Biden's DOJ said they may expand their persecutions to people that were just in the area at the time. The left has never hesitated to use violence in the furtherance of their goals, and to use the harshest measures to put down protest by their opponents.
I believe the left's propensity for violence sways the liberal members of the court. From street protests right up to the Senate majority leader leading a mob up the steps of the Supreme court.

[Sarcastr0]

That is some truly terrible whattaboutism, even given that it's a fallacy.

Any thoughts about the OP?

[Speaking for normal people]

Here is another example of the fact Brett lives on anothe planet.

Take a shooter who would gladly go to the neighborhood school and kill a bunch of random children ( as appeared TODAY )

Texas Mother Charged With Buying 13-Year-Old Son Ammo and Tactical Gear for Planned School Shooting
by Kristinn Taylor May. 15, 2025
https://www.thegatewaypundit.com/2025/05/texas-mother-charged-buying-13-year-old-son/

Now Brett takes away her gun !!! But we still have a crazed child-killing monster but Brett says "Naah, no gun, she';ll probably become a nun now, no worries"

[Brett Bellmore]

Ah, have you got me confused with the people I'm replying to?

[Purple Martin]

I muted Sfnp some time ago, only after repeated demonstrations of confusion as Sfnp's sole mode of operation.

[JoeFromtheBronx]

Josh Blackman is pretty predictable.

Readers get somewhat frustrated. Well by now many (most?) are unsurprised and scornful. But it is all part of the game.

Our rights are being taken away now, by the way, and there has been no armed resistance. We had someone who took part in a violent attempt to stop the transfer of power. There are constitutional means in place to stop him from holding office.

They were not used. It is dubious to think a widespread (don't need to predictably take her literally to miss the wider concern here) illicit taking away of weapons will lead to some big uprising.

After all, many argue that is exactly what happened for years -- the Second Amendment in their eyes was blatantly ignored (many think it still is in some ways) to disarm people.

[dwshelf]

An AR15 presents the would be confiscation force with a serious obstacle. If 1 in 1000 chooses to fight back rather than surrender the weapon, law enforcement would face a brutal death toll.

[Brett Bellmore]

Solzhenitsyn:

“And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?... The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt! If...if...We didn't love freedom enough. And even more – we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.”

We don't plan to deserve what happens afterwards. The Sarcastr0s demand that we deserve it.

[Dr. Ed 2]

I've said the same thing about the Holocaust....

[Miles Fortis]

Theodore Hass (survivor of Dachau)
https://germanjews.weebly.com/theodore-haas.html

Q.) Did the camp inmates ever bring up the topic, "If only we were armed before, we would not be here now"?

A.) Many, many times. Before Adolph Hitler came to power, there was a black market in firearms, but the German people had been so conditioned to be law abiding, that they would never consider buying an unregistered gun. The German people really believed that only hoodlums own such guns. What fools we were. It truly frightens me to see how the government, media, and some police groups in America are pushing for the same mindset. In my opinion, the people of America had better start asking and demanding answers to some hard questions about firearms ownership, especially if the government does not trust me to own firearms, why or how can the people be expected to trust the government?

There is no doubt in my mind that millions of lives could have been saved if the people were not "brainwashed" about gun ownership and had been well armed. Hitler’s thugs and goons were not very brave when confronted by a gun. Gun haters always want to forget the Warsaw Ghetto uprising, which is a perfect example of how a ragtag, half starved group of Jews took up 10 handguns and made asses out of the Nazis.

[Sarcastr0]

SO MUCH HYPOTHETICAL DRAMA

[Brett Bellmore]

How dare we respond to a hypothetical with... hypotheticals!

[Sarcastr0]

Not hypotheticals. There is no question in your post. It's all hypothetical drama.

Akin to when a leftist talks about how it will be when the Revolution comes.

[Speaking for normal people]

All you need is facts

In the past, Israel had strict regulations regarding gun ownership, requiring civilians to demonstrate a "need" to own a firearm and obtain a permit.

NOW:
‘The only person I can trust is myself’: Women explain rush to buy guns after Oct. 7
Civilians carrying firearms have multiplied

and the United States, well it doesn't know what Joe is talking about
U.S. Handgun Exports to Israel Soar as Civilian Demand Grows
The surge in exports comes after the Israeli government loosened gun ownership requirements
the number of handguns exported to Israel by U.S. manufacturers increased more than 300 percent compared to 2022, from about 10,000 to 43,000. In October and November alone, the U.S. exported more than 27,500 handguns to Israel — more than in any full year over the past two decades.

So what really is JOE saying ??????

[Social Justice is neither]

There was no "armed attempt to stop the transfer of power" you lying POS. there was a scuffle with LE at a protest that you Marxists then lied about for years. Calling that what you do would require calling the BLM riots and secession movements an armed insurrection that was 1000x worse, if you were honest in the slightest.

[dwshelf]

It's correct that confiscation of guns would not go well, but we don't have to go there to answer Sotomayor's question.

The Supreme Court can, at any point in time, issue a "nationwide injunction", in a variety of ways.

The national injunction problem arises when any one of hundreds of judges can take charge of the President for as long as it takes to get things sorted out. Not when the Supreme Court makes a decision.

[Speaking for normal people]

There are approximately 398.5 million firearms in possession in the U.S

YOU WERE SAYING ???

[Frank Drackman]

Sounds low, I’ve got around 60 (I say “around” are unassembled receivers “guns”?? Law says they are, and an M1A receiver is a pretty heavy hunk of steel, my Grandfathers 32S&W Revolver he carried for years but has so much rust the cylinder barely turns? (Not my fault, he had a lot of guns too, this one was found in his pick up) a Raven 25 Auto with a broken firing pin? Ironically the multitude of AR-15 Uppers aren’t considered “guns”

Frank

[Krayt]

In spite of the subject, I think she has a point. Could the president just redefine things against the language and long term understanding of the Constitution? Oh, sure, the thought experiment may not be perfect, but that's not the point.

Also, getting anyone in power to get behind a conservative position, in the original definition of conservative, that there's value in established tradition as expression of hard-wrought wisdom, is always a good thing.

[dwshelf]

The essential issue here isn't whether the President can just redefine things.

Rather, it's whether the boundaries on the President of the United States are set by hundreds of individual federal judges, or whether only the Supreme Court can set such boundaries.

[Speaking for normal people]

Sotomayor is not a smart woman. And appears lazy. And having no kids, has often a cold heart about life. Her comments in the case about parents withdrawing kids from gay perversion classes was robotic

[Frank Drackman]

Well, she does describe herself as a “ Wise Ass Latina”

[John F. Carr]

The oral argument included discussion of class actions as a way to provide relief to many people.

If the government banned and confiscated guns there would be class action lawsuits. Over the years a circuit split would develop. In the Ninth Circuit guns would be illegal. In the Fifth Circuit guns would be illegal. When the Supreme Court could no longer avoid a decision Roberts would craft a compromise where guns could be possessed on weekends only, or on all days by police and members of the bar.

[Brett Bellmore]

And Blackman's point is, long before it reached that point we'd be in the middle of a civil war, so it's just silly discussing the matter as though it would proceed through the courts on a leisurely schedule.

[Sarcastr0]

His point, and yours, is hostage taking.
The law must be as you say it is or else there will be blood.

No more debate or discussion or disagreement. Or else.

It's not about what's silly, it's about what's allowed in the minds of violent jagoffs.

Luckily, the Internet being what it is, jagging off is about all I expect to occur. It is still evidence of a pretty shitty character; unable to control their personal ego and so projecting into some tellingly dark fantasy worlds.

[Brett Bellmore]

And, again, nobody who's advocating a law has standing to complain about threats of violence. A law is nothing BUT a threat of violence.

[John 4]

Brett Bellmore argues like a freshmen who just took his first polisci course.

[Brett Bellmore]

And Sarcastr0 argues like somebody who desperately wants to believe they're not advocating violence when they advocate arresting people and throwing them in jail.

Don't get me wrong, some laws prohibit things that are bad enough to justify the violence inherent in law enforcement. That doesn't make the violence go away, it just makes it worth it.

But if you can't admit you're paying a price to do something, you're going to routinely over-pay.

[Sarcastr0]

"nobody who's advocating a law has standing to complain about threats of violence."

Did you think this through? You advocate for all sorts of laws - censoring schools, deporting and/or jailing noncirizens (and maybe citizens, who knows?), firing federal employees for speech...
Hell, you want to jail Hillary Clinton.

So do I get to say you should be murdered on accounta your advocacy for laws?

[Miles Fortis]

The law must comport with the Constitution, in point, the restrictions placed on goobermint by the Bill of Rights.

Now, we know you don't see the 2nd amendment's "unqualified command" as Justice Thomas put it of "The Right Of the People To Keep and Bear Arms Shall Not Be Infringed as anywhere near its easy for any common person of that day or today to understand verbiage (except for those who don't want to).
(Be advised, do Not try the 'but well regulated' gambit, or I will cut you off at your knees)

[Drewski]

I wonder how Josh would grade one of his students that responded to an exam hypo with a manifesto on rebelling against the government. Probably not too highly!

[JamesMarkels]

So it's fair to say that Prof. Blackman is recommending that those who oppose the birthright executive order should take up arms and kill their political opponents because the Courts are powerless to effectively stop a blatantly unconstitutional action by the President.

I wager that if he was the SG and he made that argument to the Court yesterday in oral argument, even Justice Thomas would have spit out his coffee.

[SRG2]

So it's fair to say that Prof. Blackman is recommending...

Yes. You will note here how zealous 2A advocates are in defence of that right and how unwilling they are to agree with the exercise of that right in defence of other rights notwithstanding their routine nay clichéd claims about 2A's purpose.

[Brett Bellmore]

I'm about as interested in resorting to violence to prevent the deportation of illegal aliens, as I am in violence to prevent squatters from being evicted, or bank robbers from having the sacks of money taken from them.

I am rather more sympathetic to people asserting birthright citizenship, though, because that genuinely IS the law in this country, even if it's a bad idea and we should amend the Constitution to change it.

[ObviouslyNotSpam]

Yes, and it is a bizarre argument for even a "top 200" law professor to make.

Rather than addressing the point of Sotomayor's hypothetical, Josh simply ignores it and goes on an irrelevant tear about the expected consequences of hypothetical unconstitutional gun confiscation.

As one of those 2d Amendment advocates (albeit not the MAGAloon variant thereof--there is a relevant distinction), I certainly acknowledge that any federal government attempt to unconstitutionally strip US citizens of those particular rights would result in substantial violence and would not end well for anyone.

But what Josh has done here is willingly blinded himself to the logical implications of the Trump Administration's unconstitutional federal actions of which he apparently approves. I'm frankly surprised. Trump's derangement is apparently contagious.

[ReaderY]

So here we have it. When government does something that people think unconstitutional, the remedy is not the courts but to foment a revolution. And this is the only remedy the people have. If the government is able to outgun people and mows them down in the streets, tough shit. And if people revolt over something the constitution requires but they don’t like - Professor Blackman has repeatedly railed against Cooper v. Aron, so racial segregation is a perfectly fair example - tough noogies.

In other words, Professor Blackman endorses the Hobbes Act. As in Hobbes and Locke, the philosophers, not Calvin and Hobbes, the boy and the cute stuffed tiger. He is claiming that the Framers did not establish this country as a nation governed by the rule of law. We have only violence to govern our disputes, and only the vic tory of the stronger to determine who is right.

I will just say that a fundamental principle I have expressed on this forum is that the most critical service a constitutional republic provides is an agreed-upon legitimate mechanism for the orderly and peaceful resolution of disputes. To this end, I have suggested that the Supreme Court preserve its precious legitimacy and ability to act as an agreed-upon umpire by declining to stretch the Constitution to address all the emotionally divisive disputes of the day when the Constitution does not clearly cover the issue. In doing so, I have been variously described as hyper-reactionary conservative and communist-level liberal, because I have tried to be consistent in taking the position that many of our current social issues, both liberal and conservative, are matters for legislatures rather than courts.

Civil wars destroy nations. No nation can become great, and the people of such a nation cannot expect any more than a life that is “nasty, brutish, and short,” if violence is the means of resolving disputes. The whole point of civilization, the whole point of the rule of law, is to avoid this outcome.

A constitutional republic , with elections, courts, and the rule of law, is the Lockian alternative to Hobbes’ solution to the problem of constant internal violence, which was an autocratic strongman.

In denigrating and advocating revolution against the entire Republican experiment, not just everything I have stood for - I am a person of no importance - but everything the framers of our Constitution stood for - they disagreed on many things, but they agreed on this - Mr. Blackman is really advocating the Hobbesian solution of rule by an autocratic strongman who keeps the peace by fiat and raw power, a strongman who is above the law.

In taking these positions, Mr. Blackman clarifies that he is not in fact a professor of law. He does not profess law as a solution to problems of governance. As an advocate of living in a lawless state of nature, of violence as the solution to our inevitable disagreements that will inevitably kead to takeover by an autocratic strongman, he might better be categorized as a professor of natural philosophy. Or perhaps a professor of anarchic studies. Or better still, perhaps a professor of naked power.

[JamesMarkels]

Indeed, while I think Prof. Blackman has usually thoughtful arguments (even when I think he is wrong and just being a partisan cheerleader), this post of his is borderline disqualifying. The answer to an unconstitutional act by the President is . . . civil war? Really? He thinks he is dunking on Justice Sotomayor with this pablum? I would hope after some reflection that Blackman will delete this post or strictly qualify it, because otherwise he is painting himself as a ridiculous (and potentially dangerous) crackpot.

[Brett Bellmore]

I would say that the answer to some unconstitutional acts by the President would be civil war. Certainly not unconstitutional acts that could plausibly be remedied by legal action.

In this hypothetical, the President is siccing the military on American citizens in order to obliterate a basic constitutional right. A President willing to go that far is not a President who's just going to stop if subjected to an injunction.

You either fight at that point, or give up on ever being able to fight regardless of what follows.

[JamesMarkels]

Isn't the REAL answer to unconstitutional acts by the President simply this: the SCOTUS says it is unconstitutional and the President obeys the SCOTUS order. Right? And that if the President is going to lob unconstitutional orders left and right, SCOTUS should have a quick way to get to the merits in order to defend the rule of law?

I mean, really, isn't that the obvious answer to Justice Sotomayor's query, that a President who decides to forcibly confiscate guns in blatant violation of the Second Amendment should obey the ruling of the Court that those actions are unconstitutional, and that ruling should be in place before widespread violations of rights are in place and the harm is irreparable?

Why yes, of course it is, unless the President decides to ignore those orders. That is a much different question, and it is not the question that Sotomayor presented. But I simply do not understand this position of "some constitutional rights simply are not enforceable without civil war." Like, why do we even have courts? And, pray tell, which other rights are only enforceable through violence? I'm sure Trump would like to know.

[Brett Bellmore]

Let's say President Newsom, on January 20th, 2029, issues an EO directing the military to go door to door confiscating firearms, regardless of legal ownership.

Yes, ideally, you immediately apply for an injunction, which is instantly granted, and shortly after made permanent. And if President Newsom is faithful to his oath of office, it ends there. This is apparently Sotomayor's expectation.

But... If President Newsom were faithful to his oath of office, he wouldn't have issued that EO in the first place. So are we to presume he issued this order in the belief the courts would bless it? Or should we presume that he was resolved to ignore the courts in addition to the Constitution?

Maybe he did assume the courts would bless it; They certainly blessed the bump stock ban long enough, and were not the slightest bit troubled about lawful property being disposed of as contraband without compensation, even when they did finally admit the ban wasn't lawful.

So, Newsom begins the confiscation in the 9th circuit, the injuction is granted and then overturned in minutes, and the confiscation proceeds. Is it expected that gun owners will peacefully comply as the issue gradually makes it up the chain of courts, as circuit splits develop, as the Court waits for the issues to be adequately developed before moving?

I think that is not a reasonable expectation.

[JamesMarkels]

"But... If President Newsom were faithful to his oath of office, he wouldn't have issued that EO in the first place." Yes, thank you for acknowledging that Trump is not being faithful to his oath. Normally the cure for that is impeachment. That's not happening with Congress under his control. But let's go on...

"So, Newsom begins the confiscation in the 9th circuit, the injuction is granted and then overturned in minutes, and the confiscation proceeds." Okay, so you're saying the district court entered the injunction and then the Ninth Circuit vacated that injunction. The next step is SCOTUS where, presumably, the Court would quickly reverse (we ARE talking about obvious unconstitutional EOs, right?), re-institute the injunction, and now Newsom gets to decide whether to ignore it or not. I mean, really, if you're going to play out your hypo, let's play it out. I think you should agree that Newsom SHOULD, regardless of his political biases, obey the SCOTUS order because it is SCOTUS's job to determine whether something violates the Constitution. That is how the process should work. Therefore, universal injunctions are obviously well-crafted to enable a quick decision that applies to the country as a whole and thus protects the rule of law.

The only problem is when Newsom decides to ignore that order. Then what? Well, at that point, yes, it would seem as though violence would follow. Those who take up arms to defend their Second Amendment rights will have a SCOTUS decision as their rallying cry, along with the recognition that a President who ignores the judiciary is a danger even when s/he might be right. The alternative -- SCOTUS throws up its hands or only allows a long, drawn-out class action process that enables the President to wholesale violate constitutional norms in the meantime -- gives no such support, and throws the issue of political violence into a Wild West "well, that's just your OPINION, man" kind of world. Is that really better?

[Brett Bellmore]

"" Yes, thank you for acknowledging that Trump is not being faithful to his oath. Normally the cure for that is impeachment."

Not a goddamn President in my lifetime has been faithful to his oath, and how many of them got impeached? Impeachment is reserved for oath violations that a supermajority of the Senate object to, not oath violations within the political mainstream. Gun confiscation may be a political loser in most of the country, but it's not far enough out of the political mainstream to be the basis for an impeachment.

"The next step is SCOTUS where, presumably, the Court would quickly reverse"

Ha. Since when has the Supreme court been in any sort of hurry to quickly reverse violations of the 2nd amendment? They went, what, 69 years between US v Miller, and Heller, refusing cert without comment to every last case where the 2nd amendment was raised as an issue by the parties. They only took Heller because DC LOST at the court of appeals, so that refusing certiori would have had the effect of leaving intact a ruling in favor of the 2nd amendment.

[JamesMarkels]

You keep dodging the issue. There is a big difference between the Court's historical progress to define the contours of the Second Amendment and whether there is a legal process to enjoin EOs that blatantly violate the Constitution and infringe on constitutional rights. Sure, the Court will take its time to analyze whether 10-round magazines are "arms" under the Second Amendment. But if a future President is using an EO to have the military seize guns from the populace en masse, per Sotomayor's hypo, things will move a lot faster (as they have in the birthright case), and the issue is whether there is legal redress (through injunctions, class actions, or whatever) or not (in which case we have Blackman's civil war option).

If you have an objection to the legal route, please state it and the basis therefore. It might also be helpful if you actually answered the question I posed at the end of my last comment.

[ruilov]

I don’t follow the argument. Indeed courts cannot solve all problems. My dog died and nothing Sotomayor can do about it. But stopping the President from eliminating birthright citizenship can be solved by the courts and very easily. For example SCOTUS could simply affirm the lower courts. And you may not like universal injunctions, you may think they’re illegal even, but surely they’re better than civil war? What’s your point Josh?

[ObviouslyNotSpam]

And surely, the best point at which to make this principle clear is this point, i.e., before the federal government moves on to erasing the 2d Amendment?

Josh Blackman: [No comment]

[Area Man]

“The remedy here was not equitable; it was belligerent. The Texians did not reply with a canon of construction; they replied with a cannon of destruction.”

Okay. I’ll admit, that was pretty clever.

[David Nieporent]

Clever wordplay, but a nonsensical response.

[David Nieporent]

None of Blackman's blathering has anything to do with the point of Sotomayor's question, of course. Is he not smart enough to understand that one doesn't get to fight the hypothetical before SCOTUS? She simply was picking an example where she knew that this administration would have to agree that the policy being challenged was wrong.

[Riva]

It's a silly, unreasonable, and decidedly unhelpful, hypothetical. Like the SEAL Team 6 nonsense. Any such order would not only be struck down but such a president would likely be impeached and removed from office. And if you respond, well he would just become a dictator. Then that is a situation no court could ever correct. And if you really believe otherwise, then we have nothing further to discuss.

[JJJSSS]

Except...that's actually the point of the hypothetical. The response of Congress to a President trying to strip away citizenship from millions of people should be impeachment, but at the very least the courts should strike it down. And if you respond, well he would just become a dictator, then that is a situation no court could ever correct.

[Riva]

So a hypothetical that logically leads to the conclusion that there is nothing that the courts or anyone could ever do is helpful how, exactly?

[Glaucomatose]

There is something that “the courts or anyone could ever do”: issue an immediate universal injunction to block the obviously unconstitutional action.

Unless there isn’t.

[David Nieporent]

Mark the bot down as not programmed to understand the concept of a hypothetical. ("That would never happen" is the sort of answer only an incompetent lawyer gives in response to a judge's hypo.)

Plus, mark it down as not programmed to even understand the conversation. "The order would be struck down" is exactly the point here: Blackman and Sauer are arguing that it can't be "struck down," except perhaps by SCOTUS. (Though Blackman doesn't think SCOTUS can do it either.)

[Riva]

Again, a hypothetical which leads to the conclusion that there is nothing anyone could ever do in the courts or Congress is not only not helpful, it is just plain idiotic. But if you like idiotic I have a SEAL Team six hypo selling pretty cheap right now. And I'll throw in a bonus Russian conspiracy fraud if you buy now. Limited time offer so act fast.

[ReaderY]

A hypothetical that leads to the conclusion that under a given legal theory, there is nothing the courts or Congress can do about what you acknowledge to be a serious problem is at least evidence, some evidence, that it’s the legal theory has a problem. It’s even evidence that it’s the legal theory that’s “not only not helpful, it’s just plain idiotic.”

[Stuart]

"Courts cannot solve all problems. Courts should not solve all problems. Courts will not solve all problems." Wow Josh, so pithy. You truly are so amazing.

[Mike45]

Trump told us what he planned for his presidency and 74 million of us voted for him and his agenda. This is about the perception by this majority that a judicial coup is being conducted against the people, from the national injunctions right down to the illegal aliens let off on plea deals of probation for vehicular homicide, laws are being disregarded like they have been the last four years.
The real problem here is that the district court's national injunctions usurp the authority of SCOTUS to regulate constitutionality of the other branches actions.

[JoeFromtheBronx]

There was no "majority" (it was a near thing, at least counting those who voted, but a majority voted for other people).

And even if a majority, even if a supermajority, supports something unconstitutional (for example, unconstitutionally taking guns away), the courts have a role to protect our rights.

SCOTUS still retains the power. National injunctions have been applied for years now. They are part of the law. If they want, SCOTUS can decide there is a problem. The lower courts would have to follow any new clarifications of the rules.

[ObviouslyNotSpam]

The need to be part of a "majority" is very strong in the Trumperverse...

I suppose, if you discount all the "fake votes" for Harris you fervently believe (without credible evidence) were included, and the millions and millions of votes you're absolutely convinced (again, without credible evidence) were "illegal", Trump did really get the support of a majority of voters in 2024!

However, even that would not create the "landslide" and the "overwhelming mandate" they also usually claim as justification for the sweeping changes they're desperately trying to make.

[Estragon]

“The need to be part of a "majority" is very strong in the Trumperverse...”

It’s funny, isn’t it, how often this claim pops up, despite it being both incorrect and easily shown to be false in about 2 seconds.

[Roger S]

Trump got a majority of the electoral college. That is what matters. He also got a majority of the votes counted on Election Day.

[Estragon]

Again, I find the pathological need to claim a “majority” (offer only good for certain esoteric definitions) to be puzzling. It seems crucial to the Trumpist mindset for reasons that remain unclear to me. I presume part of the answer lies in the knowledge, deep down, that large parts of the GOP’s policy agenda is extremely unpopular with a majority (there’s that word again) of Americans.

For example, the proposed budget: kicking folks off Medicaid, cutting food stamps, and racking up a ton of new debt to pay for upper class tax cuts. People don’t love it!

[Bob from Ohio]

"pathological need to claim a “majority” (offer only good for certain esoteric definitions) to be puzzling."

Pretty simple. The entirety of his first term was your side minimizing his victory since Clinton got more votes. This is a reaction.

[Estragon]

Clinton actually did get more votes. And that fact doesn’t make the “majority” claim any less false, no matter how many times it is repeated.

[Zarniwoop]

Does Justice Sotomayor really want to know what the remedy would be if the government confiscated everyone's gun?

No. Not just “no” but “no, you eeediot”.

What she’s doing is providing Top-200 law school students (and, apparently, professors) a way to think about what the default rule on national injunctions should be when a district court is asked to rule on a part of the Constitution they happen to like.

It’s a Con Law I rhetorical device.

[Riva]

Wait...Democrats now oppose gun confiscation?

[ObviouslyNotSpam]

I don't speak for Democrats, but I suppose the obvious response would be that they would not support unconstitutional gun confiscation (which I concede may not be true for at least a measurable percentage of Democrats).

Or did you just miss the point of the hypothetical?

[cannpro]

Josh is currently suing in federal courts right now for second amendment violations and requesting the exact relief his claims the courts cannot provide. Why is he even doing this if he thinks courts cannot and should not solve his problems? Shouldn’t he just pick up a gun and start shooting federal agents?

Stop being a coward, Josh, and solve your own problems. Kill some pigs.

[ObviouslyNotSpam]

For the true believers, Armageddon won't start itself...

[Please, Daivd, Seek Help]

I am surprised to hear a ringing and unambiguous endorsement of political violence as a means to solve policy problems. I think the fundamental challenge of endorsing political violence is to try to come up with a coherent and consistent set of rules about when it is justified that is not just "will to power" repackaged in some way or another, because fundamentally if you accept violence as a means to force change you end up endorsing in some measure a parade of horribles. And this is why people often look for courts to solve problems, because a common refrain is that political violence is not necessary as long as institutions still solve problems. But if your position think instead courts should throw their hands up and let natural law solve problems...

I guess I'll just observe that the medium term cause of the political violence you're endorsing was an institutional failure to stop a 25% tariff on certain kinds of imported tea. So I guess applying the logic of the original post, courts should not stop any future tariffs and the country should engage in armed insurrection against them, as is the natural response. Again super weird to see this logic published here and I would not have expected Blackman to be the first to call for armed insurrection against the US government, but the post says what it says.

[MollyGodiva]

The basis of this post is pointing out that MAGAs would get violent in response to gun confiscation instead of using the courts. That was not at all Sotomayor's point. She was pointing out that the Republicans would be, and have, been very supportive of national injunctions when it serves them.

[Glaucomatose]

A response to the question “But what if your requested outcome allowed the government to trample a Constitutional right you care about without an effective remedy?” of “It doesn’t matter because then I’ll start killing people” isn’t quite the flex Blackman seems to think it is.

[Snorkle]

This is what happens when Mr. Manager thinks he is clever.

He really needs a friend who can tell him when he looks like a moron.

OK, let's be real, he needs to pay someone.

[ChristopherJLinas]

"The Second Amendment is a doomsday provision, one designed for . . . where courts . . . can find no one to enforce their decrees." Silviera v. Lockyer (cited with approval by Josh Blackman).

[ObviouslyNotSpam]

I believe that is essentially correct. It's not there to protect the rights of hunters to continue their increasingly anachronistic pastime.

But its presence in the Bill of Rights is also not any kind of argument against the federal courts robustly enforcing the other parts of the Constitution.

[JoeFromtheBronx]

Courts cannot solve all problems. Courts should not solve all problems. Courts will not solve all problems.

An empty bit of blather without details.

For instance, I wrote a reply to his daily SCOTUS history segment on U.S. v. Morrison largely supporting Justice Souter's argument that the limits of the Commerce Clause will significantly be left to Congress and the president to hash out.

The courts can't solve all the problems there, including bad policy (Souter noted that he himself testified against a form of the law being interpreted) or even, in a few cases, possibly stretching the Commerce Clause too far.

I welcome JB pointing out that the Commerce Clause part of the Affordable Care Act Cases were wrong. But that doesn't help much in determining when the courts should overrule a law.

[Kords]

"Real patriots know that the only way to constitutionally deal with an executive who engages in unconstitutional actions is to engage in an armed insurrection and overthrow the government. To avoid the need for war and bloodshed by entering nationwide injunctions against unconstitutional acts is the real affront to the Constitution."

Because that's not insane.

[Reallynotbob]

I just want to note that the "Come and Take It" story is appalling for Texans. The canon was a gift from the Mexicans, which they understandably wanted back when Texas started to get secession-ish. The Mexicans attempted negotiation which the Texans humored in bad faith while their couriers ran for help from neighboring towns. Then, after the Mexicans went back across the river without the canon because the government gave them orders not to start an armed conflict, the Texans stole over the river in the dead of night to murder the Mexican soldiers in their sleep.

It's almost as noble a story as the Boomers and Sooners....

[ObviouslyNotSpam]

Needless to say, that is not the version which will appear in any future Oklahoma (or Texas) school textbook...

[Bob from Ohio]

The Gonzales cannon is smaller than I would have thought.

Apparently a 6 pounder which is about a 90mm gun so more powerful than the famous [or infamous] German 88.

[Squirrelloid]

Texians? Is it not Texans? Google n-gram finds 'Texian' almost non-existent relative to 'Texan', even within Texas...

[Bob from Ohio]

It has a wikipedia article, seems common before statehood to describe white Texans but faded away.

[Bob from Ohio]

Isn't JB's point that if a president was sending the military to unilaterally seize guns, no court order would stop him?

[TheAmazingEmu]

This is a shockingly fast advocacy for the end of the rule of law in response to a question applying the principle at debate in this case in a different context. The question is whether nationwide injunctions should be available for nationwide violations of Constitutional rights. Blackman's argument seems to be, "nah, it's fine, we'll just use violent insurrection instead." This not only misses the point of the question, it seems to suggest every single person who prefers to have a firearm would prefer to use their firearms against a vastly superior military force rather than filing something in a district court, which seems odd.

[Yogis_dad]

Justice Sotomayor, Vince Flynn wrote a book that alluded to the likely reaction of Americans to the sort of ridiculous government overreach you hypothesized. In Flynn's book, it had to do with deficit spending, as I recall. But there's not enough surveillance on the planet to protect the government personnel who would make such a decision or attempt to enforce it. So your hypothetical isn't even slightly relevant to a matter decided by the courts.