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Hecox May Still Hide In Justice Kennedy's Shadow

There is nothing originalist about Footnote Four, animus, and suspect classes. Let it go already.

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When Skrmetti was decided, I was critical of Justice Barrett's concurrence. She rehabilitated Footnote 4, gave credence to Justice Kennedy's animus jurisprudence, and all but wrote that gays who were affected by a "legacy of de jure discrimination" are a suspect class. None of these doctrines are consistent with original meaning. Yet, Justice Barrett seemed intent on fitting the transgender case into Justice Kennedy's framework. As I wrote in Civitas, "the Court remains in the shadow of Justice Anthony Kennedy." And regrettably, Justice Thomas joined this opinion, even as he previously joined Justice Scalia in repudiating the Footnote 4 dictum.

Regrettably, like a groundhog, the Justices in Hecox appear to still be hiding in Justice Kennedy's shadow. Let's start with Justice Gorsuch.

JUSTICE GORSUCH: There's another way to think about the case that your friends on the other side posit, and that is that transgender status should be conceived of as a discrete and insular class subject to scrutiny, heightened scrutiny, in and of itself given the history of de jure discrimination against transgender individuals in this country over history in immigration and family law, cross-dressing statutes, they get a long laundry list. And I'd like you to respond to that.

Justice Gorsuch seems absolutely intent on recognizing transgender people as a suspect or quasi-suspect class. He said nothing at all about the issue in Skrmetti, because he didn't have to. The Chief dodged the status issue altogether by finding non-suspect classifications based on age and medical treatment. It was a typical Robertsian dodge, that merely postponed the day of reckoning.

Perhaps the best conservative defense of Bostock is that Gorsuch was simply persuaded by the hyper-technical textualist argument he adopted (I was not), but he was agnostic about the underlying merits issue.  But this question suggest that Gorsuch was also moved by the LGBT policy arguments underlying the case. Remember, an argument that cut against Gorsuch's Bostock analysis was that it would be preposterous for the Congress in 1964 to have inadvertently prohibited discrimination against transgender people. Here, Gorsuch states clearly there is a history of de jure discrimination against those people. If governments banned cross-dressing, then would Congress prohibit employers from firing cross-dressers? Wouldn't that argument undermine Gorsuch's reading of Title VII?

Alan Hurst, the Idaho Solicitor General, responded to the de jure discrimination point:

MR. HURST: Certainly, the de jure discrimination point specifically. There has been some discrimination against transgender people, significant discrimination against transgender people in the history of this country. The same can be said of many groups. The same could have been said of the mentally disabled in Cleburne, et cetera, et cetera. I think Justice Alito's concurrence in Skrmetti is helpful to this in saying this quasi-suspect class or suspect class process, what we're really looking for is classes that look like race or like sex. And if you compare the discrimination in this case, where not one of the laws they cite actually classifies expressly on the basis of transgender status, if we look at that history and we compare it to the history of African Americans and women who were not able to vote, who were not able to own property, who had express classifications based on their status written into the law for most of this country's history, these things don't compare. They're just not alike.

The simple answer is Hecox does not require the Court to address whether transgender status is a suspect class. The statute at issue makes no reference to transgender status at all. It is a sex-based classification, and sex is defined based on biology. But even if the Court were to go down that road, this status would not be quasi-suspect or suspect. Discrimination against transgender people is not comparable to racial discrimination and sex-based discrimination.

Prior to the ratification of the Nineteenth Amendment, biological males who may have identified as women were still allowed to vote. Prior to the ratification of the Fourteenth Amendment, biological females who may have identified as men were still able to own property. Jim Crow and the laws of coverture did not discriminate on the basis of gender identity. America fought a civil war over racial oppression. The suffrage movement spread from coast-to-coast to persuade people that women deserved the vote.

Moreover, as Justice Kennedy's opinion in Lawrence demonstrates, it is not even clear how vigorously sodomy laws were enforced against consensual gay relations. (That's not to say such relations were a "fundamental" right protected by law, anymore than abortion was a "fundamental" right.) Even in 2003 when Lawrence was decided, the number of sodomy prosecutions nationwide was close to zero. There is good reason why racial discrimination is subject to strict scrutiny and sex-based discrimination is subject to intermediate scrutiny. Of course, none of these tiers of scrutiny are supported by original meaning. The Court really needs to let this doctrine go, and stop trying to apply it in new contexts.

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Second Amendment Roundup: Hawaii's Ban on Firearms on Property Open to the Public

In Wolford, the Supreme Court should clarify the facial/as-applied issue.

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As we have been posting, on January 20, the Supreme Court will hear oral argument in Wolford v. Lopez, where the question presented is: "Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?"

Hawaii's Act 52 provides that a licensee may not "enter or remain on private property of another person while carrying a loaded or unloaded firearm … unless the person has been given express authority."  It applies regardless of whether the property is open to the public.  Since the challengers disown contesting the constitutionality of the ban on private property not open to the public, can it be said that the law is not unconstitutional in all applications?  No, because one part of a law may be facially unconstitutional, and another part of the law may not be.

Moreover, although plaintiffs formally state that their challenge is both facial and as applied, is there any real difference here?  "As applied" normally refers to application to specific plaintiffs, and if their claim is valid here, the law is unconstitutional as applied to everyone.  (By contrast, there was a reason Mr. Rahimi, a bad dude, forewent a challenge as applied to himself.)

In Respondent's Brief, Hawaii argues that the petitioners have "made an all-or-nothing argument akin to a facial challenge and, having done so, they cannot succeed unless 'no set of circumstances exists under which the [law] would be valid' as applied to private property open to the public."  The quoted wording is from Rahimi and derived from Salerno.  (That apparently refers to the separate "sensitive places" bans that would apply to places open to the public.)  While Hawaii did not make a full-fledged argument on that basis, this would be a good opportunity for the Court to clarify the issue, as the law here poses the same question on which other courts have been grappling.

In particular, as I posted here, the Fourth Circuit held in LaFave v. Fairfax County, Va. (2025), that a ban on firearms in the public parks, which are mostly wooded and twice the size of Manhattan, is not facially unconstitutional because of the existence of four preschools on a tiny portion of the parkland.  No matter that no element of the offense pertains to schools or that state law separately bans firearms in schools.

Similarly, as posted here, in oral argument before the Second Circuit about another park ban, Christian v. James, 25-384-cv, New York's attorney argued that "if 99% of a law is unconstitutional, but is 1% ok," it is valid because it has a constitutional application.  While that case has not yet been decided, in Antonyuk v. James (2024) the Second Circuit held that because (supposedly) "the law has a plainly legitimate sweep as to urban parks, the facial challenge fails notwithstanding doubt that there is historical support for the regulation of firearms in wilderness parks, forests, and reserves."  Despite that concession, the court did not enjoin enforcement in such rural areas.

In Knife Rights v. Bondi, pending in the Fifth Circuit, the United States argues that the federal Switchblade Knife Act is not facially unconstitutional because it can be validly applied on military bases and courthouses, even though it does not mention such places.  Its ban on crossing state lines with such arms operates essentially as a ban on them.  (If truth be told, the law was a silly reaction to use by fictional gangs of push-button knives in movies like Rebel Without a Cause and West Side Story.)

Such decisions and arguments are completely adverse to how the Supreme Court decides Second Amendment cases.  Heller declared D.C.'s handgun ban unconstitutional even though it said in dicta that bans on handguns in felons' possession or in schools were presumptively valid.  The Court confirmed in City of Los Angeles v. Patel (2015) that Heller involved a "facial challenge."  And in Bruen, the Court wrote that "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department."  Or because it is filled with courts and schools, where firearms may not be carried.

By contrast, Rahimi held that the ban on gun possession by a person found by a court to represent a credible threat to the physical safety of an intimate partner or child is not facially unconstitutional.  Nor was the Bail Reform Act upheld in Salerno, because it required the court to find with clear and convincing evidence that no release conditions of an arrestee will reasonably assure the safety of any other person and the community.  Both laws require a judicial finding of specific persons of dangerousness.  In other words, in both cases the laws required a finding of the key constitutional facts.

By contrast, some lower courts have invented hypothetical statutes and then assert that because the hypothetical statute that the legislature could have enacted (but did not) would be constitutional under the Second Amendment, then the actual, real-world statute is also constitutional for the same reasons. Not only is this not what Salerno or Rahimi said, but it also violates the separation of powers because such courts purport to rewrite a statute into a new one that does not exist.

At bottom, whether a firearm prohibition facially violates the Second Amendment raises two questions.  First, what are the elements of the offense of the law at issue?  Second, does the crime as defined survive Second Amendment scrutiny as decided by Heller, Bruen, and Rahimi?  Conjuring up a parade of horribles of activities beyond what the statute encompasses is not part of that exercise.

Dismissal of Second Amendment challenges based on an overly-formal dichotomy between facial and as-applied characterizations misunderstands how the Supreme Court sees the differences.  As the Court explained in Citizens United v. Federal Election Comm'n (2010), "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Instead, "it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint."  Wolford poses an appropriate opportunity for the Court to bring lower courts in line with its Second Amendment jurisprudence.

For further analysis explaining why cases like Antonyuk and Lafave have erred in their approach to facial challenges, see Peter A. Patterson, Facial Confusion: Lower Court Misapplication of the Facial/As-Applied Distinction in Second Amendment Cases, 19 Harv. J. L. & Pub. Pol'y Per Curiam 1, 2 (2025).  Mr. Patterson is my co-counsel on a cert petition being filed in LaFave.

Opinion Allowing Elon Musk's Claims Against OpenAI to Go Forward, Partly Allowing Claims Against Microsoft

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The opinion by Judge Yvonne Gonzalez Rogers (N.D. Cal.) in Musk v. Altman was just posted.

Musk's breach of charitable trust, constructive fraud, fraud, and unjust enrichment claims against OpenAI can go forward, as can Musk's claim against Microsoft for aiding and abetting breach of fiduciary duty. Musk's tortious interference with contract claim against Microsoft was thrown out. Musk's unjust enrichment claim against Microsoft was also thrown out, but on the grounds that he "may 'pursue [unjust enrichment] as an equitable remedy' for aiding and abetting 'rather than [as] a separate cause of action.'"

Recall that "This action arises from a contentious dispute between Elon Musk and Samuel Altman (and their respective companies) over large, charitable donations that Musk made to OpenAI, Inc. during the company's infancy and Microsoft's later investments in OpenAI, Inc.'s for-profit ventures." I haven't followed the case closely enough to opine (though I was local counsel for Larry Lessig on an amicus brief he filed). But I thought some of our readers might be interested in the opinion.

Supreme Court

When Is a Corporation Also New Jersey?

A few thoughts on the oral argument in Galette v. N.J. Transit Corp.

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The Supreme Court heard argument yesterday in Galette v. New Jersey Transit Corporation, a pair of consolidated cases asking whether the New Jersey Transit Corporation shares in the State of New Jersey's sovereign immunity. The plaintiffs, who were hit by N.J. Transit buses in Pennsylvania and in New York, argue no. Sovereign immunity is for sovereigns, and New Jersey deliberately created the Corporation as a separate legal person—with separate capacity to sue and be sued, separate wins and losses in court, and separate assets and liabilities.

Will Baude and I agree, as we wrote in an amicus brief: States retain the immunity from suit they had at the Founding, and that immunity extended to the sovereign States themselves, not to their political subdivisions or public corporations. But there were four questions that came up at argument that deserve further attention.

The first question is whether corporate separateness needs to be assessed de jure or de facto. As a matter of law, the Corporation has its own assets and liabilities, and a loss for the Corporation in court doesn't necessarily have any impact on the rights and obligations of the State of New Jersey. In practice, of course, New Jersey routinely subsidizes the Corporation and contributes to its budget. So if the Corporation has to pay Cedric Galette's medical bills after its bus hits Galette's car, that might eventually impose some minor burden on the state fisc. But whether an entity is amenable to judicial process and to being sued without its consent doesn't depend on whether a sovereign government will eventually choose to bail you out. Everyone agrees that New York City lacks sovereign immunity and is a separate legal person from New York State, even though NYC going bankrupt would be a major headache for New York's balance sheet; everyone agrees the "Greenspan put" or Fannie Mae's implicit government guarantee doesn't turn "too big to fail" banks and mortgage guarantors into sovereigns with immunity from suit. Another defendant here, N.J. Transit Bus Operations Inc. was created as a separate corporation even from N.J. Transit, with even less of an argument for immunity; yet if Bus Operations had to pay a plaintiff's medical bills, the fact that the Corporation might bail it out rather than give up on running buses wouldn't make subsidiary and parent the same legal person. (A de facto test might also create strange results in future cases, when the facto's might have changed. If NJ Transit ridership ​goes through the roof, turning it from a cost center into a major cash cow for New Jersey, will the courts then have to overrule any decisions finding the Corporation immune, depending on its budgetary prospects this year?)

A second question involved two civil procedure doctrines, the "real party in interest" doctrine and the required joinder of parties. Normally, under Civil Rule 17, a lawsuit has to be brought by or against the "real party in interest." And when a remedy sought against Party A actually affects the rights and obligations of Party B—say, by rescinding a three-sided contract to which plaintiff, A, and B are all parties—Rule 19 sometimes requires that B be made a defendant too, as a necessary or indispensable party. And when B has sovereign immunity, as in Republic of the Philippines v. Pimentel, sometimes that might require dismissing the whole action at once. This can often muddy the sovereign-immunity waters, because arguing that "this lawsuit naming a separate legal person is really seeking relief against the State" sounds a lot like arguing that "the person who's named here is really just the State, and not a separate legal person at all." But as the Court has made clear in past cases—such as Hopkins v. Clemson Agricultural College of South Carolina, which was filed against a separate legal person but sought removal of a State-owned dyke on State land—these are two very different arguments: one concerns the named defendant's amenability to process, and the other concerns the permissible types of relief. Fortunately, here these confusions don't come up. By state law, the N.J. Transit Corporation's liabilities aren't liabilities of the State, so a money damage award against the Corporation can't make New Jersey the real party in interest.

A third question was about the "blast radius" of the plaintiffs' position. The Corporation noted that various States have labeled their agencies as corporations—especially some important parts of the government of Louisiana. We're not experts in Louisiana law (which, being rooted in civil law rather than common law, is famously opaque to outsiders), but we'd be surprised to learn that Louisiana cabinet departments were really separate legal persons from the State, with their own separate capacities to sue and be sued, their own separate courtroom wins and losses not binding the State's rights and obligations, and their own separate legal assets and liabilities. So the blast radius of a separate-legal-person test is likely smaller than it might appear. But suppose that for some reason Louisiana really did decide to set up its prison system (or what have you) as a separate corporation, with the corporation owning the prison buildings and such outright, and with the State not legally answering for its debts or being estopped by its courtroom losses—the way Fannie Mae might guarantee mortgages not guaranteed by the United States. That might seem a very strange thing to do, but if it's what the State chose, would it be so strange to say that its choice might have consequences for the corporation's suability too?

Finally, a fourth point concerned the Court's decision in Biden v. Nebraska, which centered on the Missouri Higher Education Loan Authority, a Missouri public corporation. MOHELA has the independent capacity to sue and be sued, but the Court still found that a financial injury to MOHELA was enough of an injury to Missouri to support the State's Article III standing. But Article III injury-in-fact is a different (and more capacious) concept than legal personhood; a parkgoer can be injured in her "[a]esthetic and environmental well-being" without having to be the same legal person as Sequoia National Park. As one of us noted in an amicus brief in Biden, the authorities were divided on whether MOHELA was an arm of the state for sovereign immunity purposes. But the Biden majority elected not to resolve such questions, instead responding that "a public corporation can count as part of the State for some but not 'other purposes.'" If Biden decided that the arm-of-the-state inquiry didn't determine the standing issue there, it'd be unusual (to say the least) for the Court to treat Biden's standing holding as determining the arm-of-the-state-inquiry here.

(cross-posted from Divided Argument)

Legal Ethics

More on Lawyer Hijinks in Laura Loomer's and Bill Maher's Depositions

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From an order today by Magistrate Judge Philip Lammens in Loomer v. Maher (M.D. Fla.) (the underlying case is a defamation lawsuit over Maher's saying President Trump "might be" "fucking" Loomer):

On December 4, 2025, the Court entered an Order directing counsel for Plaintiff, Larry Klayman, and counsel for Defendants, Kate Bolger, to show cause why they should not be sanctioned for their conduct at the depositions of Bill Maher and Laura Loomer. The Court was sincerely shocked by counsel's conduct at those depositions—conduct which fell well below the standards of professionalism that this Court expects and that are mandated by the Florida Bar. In issuing its show cause Order, the Court was focused on explaining why counsel's conduct at the depositions was unacceptable, resetting the tone of this litigation (which has been unusually contentious), and ensuring that counsel would conduct themselves with civility and professionalism moving forward.

The court began by discussing Ms. Bolger's response, and concluded "its objectives in issuing the order to show cause were achieved" because "Ms. Bolger was remorseful and apologetic, she took full responsibility for her behavior, and she re-committed herself to litigating this action with civility and professionalism—standards to which she has held herself over the course of her 25-year career. Accordingly, the order to show cause is discharged as to Ms. Bolger."

The court then turned to Mr. Klayman's response:

In stark contrast, Mr. Klayman fails to acknowledge that he did anything wrong at the depositions. In fact, Mr. Klayman blatantly ignores the countless instances of unprofessional conduct identified by the Court—including name calling, bickering, improper objections, and failing to restrain Ms. Loomer's outrageous conduct—and instead, explains why he was rightfully frustrated by Ms. Bolger's conduct at the depositions, why his improper objections were well-founded, and even appears to shift blame to the Court for not granting his requests for in-person discovery conferences and for (according to Mr. Klayman, who made the suggestion "respectfully") the undersigned's purported bias towards Ms. Bolger and her clients.

Unfortunately, this is not an isolated instance of unprofessional conduct for Mr. Klayman. Indeed, over the past thirty years, Mr. Klayman repeatedly has been sanctioned and condemned for violations of court rules and professional standards, both in the Middle District and throughout the United States.

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Can You Waive A Substantive Canon?

Justice Gorsuch suggested that the West Virginia did not raise the clear statement rule, Justice Sotomayor countered that a substantive canon cannot be waived.

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I have written a few posts on Hecox, which I will come back to later. Here, I want to talk about the companion case, West Virginia v. B. P. J., which turned on Title IX.

Title IX is, at bottom, conditional spending legislation. Educational institutions that accept federal money have to comply with a host of requirements. Often, Title IX cases arise when a University fails to comply with some requirement, and the Federal government files suit. The remedy in such a case would be the withholding of federal funds, or some other injunctive relief to require compliance with the regulations. We have seen similar litigation by the Trump Administration against universities under Title VI. In such cases, the universities will often raise the defense that the statute failed to clearly spell out the requirement. This argument is basically an application of the clear statement rule: Pennhurst State Sch. & Hosp. v. Halderman (1981) requires that conditional spending requirements must be clearly stated.

Individual plaintiffs can also bring Title IX suits. They usually allege that the University failed to comply with some federal rule. For example, the University did not prohibit some form of sex discrimination or the University failed to afford the accused with adequate due process. But in these plaintiff-initiated suits, it is less likely that the University would challenge whether the regulation itself was invalid.

Justice Jackson pointed out that the Court has not had occasion to apply the clear statement rule outside the context of damages cases.

JUSTICE JACKSON: But, counsel, can I just ask you about this, though? Have we ever applied the Spending Clause's notice requirement outside of the damages context? Because, here, we're not talking about a situation in which B.P.G. is seeking damages, and I thought that was sort of a crux of the Spending Clause analysis.

MR. WILLIAMS: I will concede, Your Honor, that many of the cases that talk about this arise in the context of --or maybe even all of -

JUSTICE JACKSON: All of them.

MR. WILLIAMS: All of the cases arise in the context -

JUSTICE JACKSON: Yes. Thank you.

MR. WILLIAMS: I'll concede as much, yes, Your Honor. But I don't think the Court has ever suggested that a specific request for damages is the reason for its analysis. And I think that actually would be inconsistent -

JUSTICE JACKSON: But we would be having to address that, I guess, and extend it in the --in this context if we were to take a Spending Clause tack.

Assuming such a claim outside of the damages context is valid, was the issue waived in this case? This question arose during oral argument in West Virginia v. B. P. J.

West Virginia argues that Title IX should not be read to require universities to allow biologically male athletes to participate in female athletics. They invoke the clear statement rule, and contend that there was no clear indication when Title IX was adopted that this requirement was present.

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What If A Supreme Court Case Becomes Moot Before June?

Hecox will not graduate in May, but such mootness could have arisen in King v. Burwell.

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Last night (or was it early this morning?), I commented on Justice Sotomayor's remarks that litigants in Supreme Court cases live in "infamy." I wrote that she is only half-right. Litigants who promote liberal causes are celebrated. Litigants who promote conservative causes are excoriated. I discussed Abgail Fisher at some length, and could add some more names. Coach Kennedy. Jack Phillips of Masterpiece Cakeshop. The Little Sisters of the Poor. The Green Family, owner of Hobby Lobby. Kaj Ahlburg and Mary Brown (the plaintiffs in what became NFIB v. Sebelius.) Dick Heller. Alan Bakke. All of the plaintiffs that contested COVID regulations. (Trust me, I know how hard it was to find Jewish plaintiffs who were willing to challenge Governor Cuomo's lockdown measures.)  And so on. If we want to go even further back, we could include poor Joseph Lochner. The immigrant baker's name has become associated with the worst way of deciding cases.

King v. Burwell also comes to mind, and it relates further to Hecox. In King, plaintiffs challenged an Obama Administration policy that provided Affordable Care Act subsidies in states that did not establish health insurance exchanges. The standing argument was a bit complex, and required plaintiffs to be in a particular low income band, but not too low that they would qualify from an exemption from the individual mandate penalty. There were four named plaintiffs. The Wall Street Journal hounded the plaintiffs to determine if in fact they met the criteria for standing. I recount this history in my second book, Unraveled:

The question of standing came to the forefront in February 2015 following a series of investigative reports published in The Wall Street Journal by Louise Radnofsky, Brent Kendall, and Jess Bravin. The articles raised doubts whether each of the four plaintiffs were indeed injured by the IRS rule. The lawyers at Jones Day told me that they had researched each of the questions raised in 2013 when the case was filed, and vigorously dismissed the allegations.

Consider how Rose Luck was treated:

The biggest riddle was the final plaintiff, Rose Luck. The Journal reported that Rose Luck's declared address in the original complaint was the Americas Best Value Inn in Richmond. The receptionist at the motel told the enterprising reporters that Luck did not live there. Her residency was relevant, because insurance premiums are priced based on a person's zip code. If the calculations were wrong because of an incorrect address, the unsubsidized price of insurance may be lower than 8%, and thus she would otherwise be eligible for an exemption from the individual mandate. Nicholas Bagley, the Michigan law professor, observed, "We don't know where Luck now lives and what the price of a bronze plan is in her area. It's thus hard to know whether, absent tax credits, she could reasonably expect to be exempt from the mandate penalty."

Scoffing at the case, Washington & Lee law professor Timothy S. Jost told the Journal, "All of these plaintiffs are people they picked off the street for this litigation."8 Jost was in the ballpark, at least for Luck. Carvin told me that they listed the motel as Luck's address "because she was temporarily out of housing" when the case was filed. "I didn't know what else we could do." He added that reporters were camping outside of the other plaintiffs' homes, trying to find out anything they could to upset the case. "We didn't want to tell anybody this because the press was harassing these poor people." In any event, it did not matter for purposes of the case. Luck "lives six blocks away from the motel. So it didn't affect the premiums because she was in the same zip code." Carvin described the Wall Street Journal's reporting on the plaintiffs as "really tendentious and stupid. We had thought about all these issues that they raised."

Luck was not given a glamor photoshoot in the Washington Post like Hecox.

Then there was Brenda Levy. Her claim would become moot if the Supreme Court took till June to decide the case.

Third was Brenda Levy. She was sixty-four at the time the case was argued, but would turn sixty-five, and become Medicare eligible, in June – right around the time when the Supreme Court would issue its decision. As a result, she would no longer be subject to future penalties under the individual mandate. However, Carvin explained to the Supreme Court that she was "obviously subject to the individual mandate well in advance of that" date, and therefore suffered an injury.

Of course, the Justices could have decided the case more quickly, but they ultimately found that at least one of the plaintiffs had standing.

During oral argument in Hecox, Justice Jackson asked if the plaintiff would graduate before the Supreme Court even decides the case.

JUSTICE JACKSON: Only for a few more months. What if --what if this decision doesn't come out until June and she graduates in May?

Perhaps that should counsel the Justices to move with dispatch, and decide the case more quickly. But in this case, Hecox will not graduate in May 2026, but will need another semester or so.

MR. HURST: It's my understanding at this point --I defer to my friends here. It's my understanding at this point that May graduation is not possible.

JUSTICE JACKSON: For this individual?

MR. HURST: For this individual, that's correct.

JUSTICE JACKSON: All right. Thank you.

Hecox's counsel confirmed this timeline:

JUSTICE SOTOMAYOR: How --how about her graduating this year?

MS. HARTNETT: So, on that -

JUSTICE SOTOMAYOR: There was suggestion she might not.

MS. HARTNETT: As you can tell, we have --college students have their --so she is trying her best to get through college. I think at this point, and I am just basing it on what I know as of today, she's unlikely to graduate by May, as my friend said, but is hoping to make --through summer credits, could graduate in the fall.

It seems Hecox started at Boise State in Fall 2019.

Andrew Hale Leaves Heritage for Advancing American Freedom

"I can roll with policy changes, but what I can't roll with is a tolerance or an overlooking of antisemitism or any form of bigotry."

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The exodus from the Heritage Foundation to Advancing American Freedom continues.

A senior Heritage Foundation staffer has been hired by Advancing American Freedom, joining more than 20 other former Heritage employees who have departed the conservative think tank for AAF over criticism of President Kevin Roberts' refusal to disavow Tucker Carlson for platforming neo-Nazi influencer Nick Fuentes and Roberts' handling of the broader fallout. . . .

"I can roll with policy changes, but what I can't roll with is a tolerance or an overlooking of antisemitism or any form of bigotry," Hale told Jewish Insider in an interview. "I've worked for Democrats, Republicans, Labour and Conservative in the U.K., on both sides of the Atlantic. I can roll with policy changes. This is not about that. For me, I feel obligated because I have the freedom to do so and the means to do so. I'm calling out a problem that exists at Heritage and exists in the conservative movement, and we need to exorcize it in a way that the Left has not done well."

"As someone who used to work for the late holocaust [sic] survivor and human rights advocate Congressman Tom Lantos, I have zero tolerance for any form of bigotry, and I believe most of my fellow Americans feel the same," he added in a subsequent written statement. "As a student of history, I believe antisemitism has recently been normalized in some quarters on the right and we are right back in the 1930s – and everyone should be aware of where that led."

Hale explains that those who spoke out against Kevin Roberts faced internal retaliation:

Hale cited Roberts' unwillingness to take down a video posted to Heritage's social media accounts in late October lashing out at Carlson's critics, as well as what Hale described as retaliation against those who spoke out against antisemitism at an all-staff meeting in November amid controversy over the video, as reasons for his departure from the think tank.

At the staff meeting, Hale said, "I bit my tongue and I watched others stand up and challenge, and I witnessed those people suffer dearly for that."

"It was just like they were persona non grata after that," he added, "And then we had people go around the building saying afterwards that any sort of dissent of any kind will not be tolerated. Those people suffered retaliation. Then we were all threatened and warned never to do that."

"Afterwards, we were warned not to do that. And if we had a problem and there was a disagreement, we should leave," he continued. "That offending video that caused all this a couple months ago is still up, and the offending individual hasn't taken it down. … I just don't know how that video remains up when it has caused so much damage."

Hale also pointed out how Heritage changed after the departure of Ed Feulner, a point I made in my recent WSJ op-ed.

Hale says he believes the organization "went absolutely off the rails very quickly" following the death of Heritage founder Edwin Feulner last July. . . .

Hale argued that there was a difference between how Feulner and Roberts allowed their respective faiths to influence their roles leading Heritage.

"I never knew what Ed Feulner's religion was. I discovered what it was when he had his funeral at a Roman Catholic Church. I'm also a practicing Christian. I'm Anglican, and my faith is very important to me, but I don't wear it on my sleeve," Hale said. "When Ed Feulner was there, he really was about conservatism and he was very philosophical. I know his faith did inform his policies and how he conducted himself, but I find that when there are problems at Heritage and some other organizations, they're glossed over by simply people quoting a Bible verse or talking about how God told them to do this."

Read the entire piece.

I should note there was one reverse exodus.

On December 22, I reported that Cully Simson and Hans von Spakovsky departed from Heritage. On January 12, Hans joined Advancing American Freedom. But in a bit of a twist, on January 13, Cully returned to Heritage. Here is his announcement on X:

I am proud to return to The Heritage Foundation, the most influential organization with the biggest impact advancing conservative policy and legal reform. In a turbulent time in 2025, when important issues were complicated by hasty decisions taken by many, including me, I resigned my position at Heritage. With time and reflection over the holidays, I see very clearly now: Heritage is my home. I remain committed to the core principles and the principles that have made Heritage a leader in shaping law and policy. The focus now is strengthening Heritage as a powerhouse for scholarship and strategy, driving progress on election integrity, criminal justice, regulatory reform, and constitutional governance. Heritage's impact is unmatched, and I am honored to rejoin this mission and work alongside those dedicated to building an America where freedom, opportunity, prosperity, and civil society flourish.

The Washington Times wrote about this "drama."

Politics

Zen and the Art of Persuasive Writing: Impactful Introductions

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A great introduction is fine art, crafted with great care and purpose. A first impression matters. If the reader never reads past the first paragraph, he will never read your brilliant narrative or argument. An introduction should offer context and grab the reader's interest. Persuasive writers craft introductions to arrest the lazy eye. At a minimum, that means a killer first sentence and a roadmap.

A. The First Sentence or Paragraph

An opening line should invite the reader to begin the story. It should say: Listen. Come in here. You want to know about this. How can a writer extend an appealing invitation; one that's difficult, even, to refuse?  —Stephen King

The first sentence or paragraph of your motion or missive is choice location—Manhattan skyline. It presents a singular chance to set the scene, strike the tone, persuade, connect and impress.

Clarity is essential at the start. A good beginning is clear and introduces a thread that runs through your prose.

Meditation: Do not spoil this singular chance to persuade with archaic formalism, reflexive legalese or snappy quotes from former presidents. You might think it's meaningful, but it's dead air to the reader who has no context to appreciate what you're saying.

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Justice Sotomayor Asks "Have You Studied The People" In SCOTUS Cases.

I have. Conservative litigants are vilified. Liberal litigants are celebrated.

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There was an unusual exchange in Hecox. The Justices had little interest in pursuing the mootness argument. Yet, Justice Sotomayor tried to explain why Hecox would drop the case for non-strategic reasons. Sotomayor suggested that it is a burden to be a named plaintiff in a Supreme Court case. And this pressure could explain why Hecox dropped out after the case left the safe confines of the Ninth Circuit. Justice Sotomayor pressed the Idaho Solicitor General if he "studied your law cases" and if he "studied the people" behind those cases:

JUSTICE SOTOMAYOR: Do you dispute that having a case named after you makes your infamy --infamy live forever? Think of -

MR. HURST: No, Your Honor.

JUSTICE SOTOMAYOR: No? You don't think that Brown and any of the other named plaintiffs that we have in famous cases draw an attention to those people as people? Have you studied your law cases? Students do all the time. I think one of my colleagues had a course where they looked at the lives of the plaintiffs. Do you doubt that having a named case with such an eventful event is going to continue attention on this person?

MR. HURST: I don't doubt there will be attention. And I --I confess I -

JUSTICE SOTOMAYOR: Negative attention.

MR. HURST: And I confess I have studied a few law cases, but -

JUSTICE SOTOMAYOR: Have you studied the people?

I found this question was insulting.

I have studied the people behind Supreme Court cases. And Justice Sotomayor has things--at best--half right. Conservative litigants live in infamy. Liberal litigants are glorified. Do I need to name names? James Obergefell. Edie Windsor. John Lawrence. Christy Brzonkala (from United States v. Morrison). Gregory Lee Johnson (from Texas v. Johnson). Norma McCorvey (from Roe v. Wade), at least until she became Pro-Life. Mary Beth Tinker. Richard and Mildred Loving. Estelle Griswold. Linda and Mildred Brown. Fred Korematsu. Elsie Parrish. Eugene Debs. Lee Yick. Homer Plessy. Myra Bradwell. Dred Scott. And so on. Yes, I've studied the cases.

Back to Hecox. In July 2020, Hecox was content to have a glamor photo appear in the Washington Post. Everyone knew this case was headed to the Supreme Court. And Hecox's counsel thought it was a strategic benefit to plant favorable press stories. But now, on the eve of a Supreme Court decision, Hecox's counsel wants the case to go away. It is a bit rich to claim that this pressure has now affected Hecox's decision to drop out of the case.

There is another relevant example involving students. Everyone knows Abigail Fisher, the lead plaintiff in the challenge to the University of Texas's affirmative action. And she was excoriated. Remember #BeckyWithTheBadGrades? This meme was shared by the BBC.

Another site summed up her life:

It's hard not to draw the conclusion that Fisher's lawsuit is a product of her entitlement. She's noted that all of her friends and family went to the University of Texas at Austin, and so she felt like she was entitled to go too, never mind the fact that she didn't have the grades to get in. And if getting her way means destroying a policy that has been proven to benefit white women the most, then that's what Fisher evidently intends to do.

One site offered a roundup:

It is not surprising that the reaction to the decision focused on Abigail herself. Media coverage of the case when it was argued this winter also focused primarily on the plaintiff: her mediocrity, her ​"race-baiting lawsuit," and, most of all, her privilege. It encouraged her to #staymadabby and compared her to ​"a boiled and condiment-less hot dog sitting in a room-temperature bun."

As the case went to the Supreme Court, Fisher was the only named plaintiff.  But in the lower courts, there was another plaintiff. However, she dropped out of the case after the Fifth Circuit decided the appeal in 2011. Why? Because she was admitted to a Texas law school. As the story went, the future law student did not want to be a named plaintiff. Can you imagine being the law student who was actively litigating against a policy your law school favored? The ire would only go in one direction. But a law student who challenges some conservative policy would be celebrated.

Indeed, one of the reasons that Students for Fair Admissions was created was to allow students to anonymously challenge affirmative action policies, without fear of reprisal. Abigail Fisher served on the SFFA board--a point Justice Sotomayor gratuitously pointed out in her SFFA dissent. After all, Harvard argued that SFFA lacked standing. The brief in opposition to cert stated, "SFFA is not a genuine membership organization—it is a vehicle designed to advance the policy preferences of its controlling founder, who has no personal stake in the controversy."

If there is a concern that Supreme Court litigants will be subject to harassment, then organizations like SFFA should be considered as a favorable option. Nothing would have stopped Hecox's counsel from forming a group called Students for Fair Athletics, or something like that. Maybe if they certified a class of all transgender student athletes in red states, they could get around the facial/as-applied problem.

The As-Applied/Facial Fad Comes for the Equal Protection Clause

Justice Kagan ponders at great length about whether there can be an as-applied challenge based on the Equal Protection Clause.

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At times, the Supreme Court goes through jurisprudential fads. I am not referring to any particular substantive doctrine. Rather, some idea gets in the ether, and the Justices try to apply it in different contexts.

In recent terms, the Justices seem to be going through a fad based on as-applied and facial challenges.

United States v. Hansen (2003) cast some doubt on the ability of plaintiffs to bring facial overbreadth challenges under the First Amendment. In Rahimi (2024), the Court treated the motion to dismiss as a facial challenge, rather than an as-applied challenge, and upheld 922(g)(8) under the Salerno test. Justice Gorsuch's concurrence seemed to agree with this framing. In NetChoice (2024), all nine members of the Court agreed that both the Fifth and Eleventh Circuits failed to apply the proper standard for a facial challenge. Rahimi and NetChoice were decided back-to-back, and it was not clear to me why the facial challenge bar was lower for the First Amendment than for the Second Amendment. And in Trump v. United States (2024), Justice Barrett conceived of the immunity doctrine in terms of as-applied challenges. On July 2, I wrote "The other story of this term is that the Justices have absolutely no idea what to do with facial challenges--see Rahimi, Trump, and NetChoice."

In TikTok v. Garland (2025), the Court ruled that the prohibition was "facially content neutral," but would not consider an exclusion in the statute which was "not within the scope of petitioners' as-applied challenge." In Williams v. Reed (2025), Justice Thomas in dissent faulted the majority for ruling on an as-applied challenge, when the petition raised only a facial challenge. In Bondi v. VanDerStock (2025), the Court recharacterized the plaintiffs' as-applied challenge into a facial challenge under the Salerno test. (I was counsel in this case, and can attest how the Court botched the record.) At the time, I speculated whether Salerno would replace Chevron, as another doctrine to make it harder to challenge federal regulations. Treating a case as a facial challenge is just another way of making sure the plaintiff loses. And indeed, a recent JREG post suggests that DOJ is attempting to use Salerno with VanDerStock as a new deference doctrine.

Maybe all of these cases were a coincidence. But I think it is a fad. Somehow, this issue has gotten into the minds of the Justices, and they keep bringing it up in different cases, even where it is not needed to decide the case.

The oral arguments in Hecox and B.P.J. suggest that the Court is still focusing on the line between facial and as-applied challenges.

Equal protection claims are brought facially. I never even considered the alternative. For example, consider an affirmative action case like Students for Fair Admission. The group argued that Harvard and UNC used unconstitutional racial classifications against all applicants. To be sure, the plaintiffs showed they were injured to establish standing. But the volumes of data submitted in this case turned on the admission policies more generally, and not the particulars of the plaintiffs.

The same approach applied to Fisher v. University of Texas, Austin. Abigail Fisher had to show she was injured to establish standing: she applied to UT, paid an application fee, and was rejected. But the case did not turn on how Fisher's individual file was reviewed. Rather, it considered UT's policy more generally. Again, she brought a facial challenge. And the requested remedies in the affirmative action cases were the wholesale invalidation of the policy, not an order that Fisher or members of SFFA had to be admitted. Indeed, by the time Fisher II was decided, the plaintiff had already graduated from LSU, and was no longer seeking admission to UT.

Is it possible to have an as-applied challenge based on the Equal Protection Clause? I'll admit, before Tuesday, I had never considered the issue. (I have not followed the Fourth Circuit litigation closely.) The closest I could think of was Village of Willowbrook v. Olech (2000). This largely-overlooked per curiam opinion held that a plaintiff could establish a class of one under the Equal Protection Clause even "where the plaintiff did not allege membership in a class or group." The Court noted that a class of one equal protection claim is made "where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Of course, it is very difficult to prevail under a rational basis test, but in egregious cases such as Olech it is possible. One of my first articles posited that individual homeowners could bring Olech equal protection claims to block eminent domain seizures. Creative, perhaps, but the idea did not catch on. Indeed, the Court has only cited Olech a few times over the past quarter-century.

In Hecox and B.P.J., Justice Kagan spent some time asking if it was even possible to bring an as-applied equal protection claim.

Consider this colloquy between Justice Kagan and Idaho Solicitor General Alan Hurst.

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Sanctuary Cities

Trump's Unconstitutional Plan to Withhold all Federal Funding From Sanctuary Cities and States

The plan violates multiple constituitonal provisions and goes against Supreme Court precedent. If somehow allowed to stand, it would gravely imperil federalism and the separation of powers.

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Donald Trump recently announced he plans to withhold all federal funds to sanctuary jurisdictions which restrict assistance to federal immigration deportation efforts, beginning February 1:

President Donald Trump said Tuesday that starting Feb. 1 he will deny federal funding to any states that are home to local governments resisting his administration's immigration policies, expanding on previous threats to cut off resources to the so-called sanctuary cities themselves.

Such an action could have far-reaching impacts across the U.S., potentially even in places that aren't particularly friendly to noncitizens.

This plan is blatantly unconstitutional, violating both federalism and the separation of powers. Courts have repeatedly struck down similar Trump efforts during both his first term and the current one. See my analysis of recent court decisions on these issues here, here, and here. See also my Texas Law Review article surveying and assessing litigation arising from Trump's first-term attacks on sanctuary jurisdictions. There and in other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system.

Courts have repeatedly ruled that Trump cannot withhold funds from sanctuary jurisdictions because Congress, not the president, determines federal spending and attached conditions, and because even congressionally authorized conditions are subject to constitutional constraints, including that they cannot be coercive, and that they must be related to the purposes of the grants.

Trump's most recent plan is even more blatantly unconstitutional than most of his previous efforts, because it appears to cover all federal grants to sanctuary jurisdictions, not just some subset of them. Thus, it would be an even bigger usurpation of congressional power, and even more obviously coercive and violative of the relatedness requirement. If Trump goes forward with it, I hope and expect courts will rule against him.

Conservatives and others who may be inclined to support Trump on this should ask whether they would want the next Democratic president to be able to use similar tactics to pressure red states into adopting left-wing policies on gun control, transgender rights, environmental policy, and any number of other issues. And, for those keeping score, I have repeatedly made similar points about the Biden Administration's (less extensive, but still unconstitutional) attempts to pressure conservative "gun sanctuary" jurisdictions (most recently here).

There are good reasons to cut a variety of federal grants to state and local governments, in order to reduce dependence and incentivize competition for "foot voters." But that cannot and should not be accomplished by executive usurpation of congressional power, and the use of grants to coerce states and localities into doing the president's bidding.

Second Amendment Roundup: Important Wolford Brief Addresses Bruen Methodology

Prof. Alicea explains the proper way to apply Bruen.

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Hawaii's "default no-carry" rule for private property is being defended with a familiar move in Second Amendment litigation: describing history and any underlying principles at such a high altitude that almost any modern restriction can be made to look "analogous." In his amicus brief in Wolford v. Lopez, Professor Joel Alicea argues that this is nothing less than the fulcrum on which Bruen either stands as a real constraint on government power, or collapses into a Rorschach test where judges can always find a historical "tradition" of firearm regulation by choosing the right level of abstraction.

The brief's core claim is simple: under Bruen, courts must identify whether a modern gun regulation is "relevantly similar" to historical firearm regulations in both how it burdens the right and why it does so. But "how" and "why" are infinitely malleable if courts are free to redescribe historical laws at whatever level of generality they want. If you characterize an old statute with maximal specificity, few modern laws could match. If you characterize it as "regulating arms in the public interest," everything matches. The entire enterprise turns on a threshold question: which features of the historical laws are essential and which are incidental?

Alicea's proposed solution is a return to first principles. The point of Bruen's history-and-tradition test is to illuminate the original contours of the pre-existing right the Second Amendment was codified to protect. So, the relevant "level of generality" is the one the ratifying generation would have understood as bearing on the substance of the right. That requires judgment, and even normative reasoning, but not the free-floating interest-balancing that Bruen rejected. The normative premises are supplied by the ratifiers' worldview, and one key "guiderail" is nonnegotiable: courts cannot define a historical "tradition" in a way that effectively nullifies the constitutional text's protection of the right to "bear Arms."

The appropriate level of generality matters here because Hawaii's law flips the ordinary rule for much of public life. It requires affirmative consent before carrying firearms onto any private property, including private property held open to the public, like grocery stores, restaurants, gas stations, gyms, and banks. The Ninth Circuit upheld the law by pointing to a handful of historical enactments that, in its view, show a tradition of requiring permission to carry on private land.

Alicea argues that those analogies fail once history is described at the right level. The "tradition" the Ninth Circuit invoked is better understood as a narrow anti-poaching regime: laws aimed at preventing trespassing with guns for unauthorized hunting, typically limited to "improved" or "enclosed" lands, private property not generally open to the public. The "why" was anti-poaching; the "how" was restricting armed entry onto lands where hunting trespass would occur. Those limitations are not incidental trivia. They are precisely what kept such laws from destroying the general right to carry arms in public for self-defense. Strip those features away and you manufacture a broader tradition that can be deployed to justify Hawaii's sweeping default rule. But that move, Alicea contends, is exactly what Bruen forbids because it eviscerates the right by redefining historical limits so broadly that the right becomes largely theoretical.

The brief also demonstrates how the two "dead-ringer" statutes that the Ninth Circuit relied on are not relevantly similar to Hawaii's law. New Jersey's 1771 law, Alicea argues, is transparently an anti-poaching measure by its title and structure. It should not be read as a general ban on carrying across all private property for all purposes.  (It bears recalling that, as Blackstone observed, the English game laws had the purpose of "disarming the bulk of the people.")

And Louisiana's 1865 law, which prohibited carrying firearms on another's premises without consent, is part of the post–Civil War Black Codes, an effort to suppress the rights of newly freed Black citizens. In his concurrence in Rahimi, Justice Kavanaugh wrote that lower courts should not rely "on the history that the Constitution left behind" when determining the constitutionality of a modern firearm regulation. A racist law enacted to nullify constitutional rights cannot credibly supply the historical "tradition" that defines those rights and would be better read as an illustration of the sort of evils the Second Amendment is designed to prevent.

The point is not that property owners lack authority to exclude firearms; they plainly can. The point is that government cannot convert private exclusion into a near-universal public disarmament by default, then call it "history." If Hawaii can do this, Alicea warns, Bruen's protection of public carry becomes an empty promise, contingent on a patchwork of affirmative permissions most people will never obtain. The Court, he argues, should reverse.

* * *

A few other reflections come to mind on reading Prof. Alicea's brief.  First, in terms of historical traditions, at a high level of generality, it is understood that in authoritarian regimes, one may not act without first getting permission, while in free societies one is allowed to act unless prohibited.  Hawaii's default law requires permission before acting.  Second, what would happen if Hawaii prohibited a person from wearing a MAGA baseball cap into a store without first getting permission?  Any First Amendment problem there?  And third, if Hawaii is such a champion of "property owners' rights," why did it prohibit mere possession of firearms in bars, financial institutions, and swimming pools, leaving the owners no choice to consent?

For more detail on this issue, see J. Joel Alicea, Bruen Was Right, 174 U. Pa. L. Rev. 13 (2025), which I summarized here.  See also Mark W. Smith, The Third Rails of Second Amendment Jurisprudence, Harvard JLPP (Sept. 2025) (explaining guardrails or "disqualifiers" that signal when a court has derived an underlying principle too broadly); Stephen Halbrook, Text and History or Means-Ends Scrutiny? 24 Fed. Soc. Rev. 54 (2023).

Second Amendment Roundup: An Opportunity to Clarify 1791 vs. 1868

Time period to assess Second Amendment rights may arise in Wolford argument.

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As the Supreme Court prepares for oral argument on Tuesday next week in Wolford v. Lopez, it should consider resolving the relevant time period for interpreting the scope of the Second Amendment.  The issue arises in contexts as diverse as the federal prohibitions on certain classes of people (see post here) and whether adults aged 18 to 20 have Second Amendment rights (see post here).  It is pertinent to the Wolford issue of Hawaii's default rule of no guns on private property open to the public without prior consent.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court rejected interest-balancing under the Second Amendment, instead requiring that laws that implicate the plain text of the Second Amendment be "consistent with this Nation's historical tradition of firearm regulation." In doing so, Bruen reiterated the Supreme Court's assurance, offered many times before, that rights applied to the states have the same scope when applied to the federal government. And it further stated that it had "generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791." (Some lower courts have decided that the Supreme Court was incorrect when it so "assumed" and have purported to decide that 1868 is the better date.)  And when it came time to reviewing late-nineteenth century evidence, the Court said that such evidence has no more than confirmatory value "of what the Court thought had already been established [by earlier sources]."

To be sure, the Court in Bruen acknowledged a "ongoing scholarly debate" over whether courts should rely on evidence from the ratification of the Bill of Rights in 1791, or on evidence from when the Fourteenth Amendment was ratified in 1868. The Court's statements throughout the rest of the opinion, and its prior precedent establish that 1791, not 1868, is the proper period to look for evidence of the original public meaning of the Second Amendment.

Start with the principle that the Second Amendment means the same thing applied against the federal government and the states. The ratifiers of the Fourteenth Amendment did not think that they were incorporating different rights against the states than those that were recognized at the Founding; to the contrary, they thought they were taking existing rights and expanding where they applied and to whom. The Supreme Court has acknowledged this principle time and again in cases like Ramos v. Louisiana (2020) (jury right) and Timbs v. Indiana (2019) (excessive fines), holding that the provisions of the Bill of Rights must be given the same scope regardless of what level of government they constrain.

In McDonald v. Chicago (2010), the Court quoted Malloy v. Hogan (1964) (self-incrimination) to say that the Fourteenth Amendment does not apply to the states "only a watered-down, subjective version of the individual guarantees of the Bill of Rights." Perhaps the best example of this was the Court's Espinoza v. Montana Dep't of Revenue (2020) decision where it rejected 30 State laws contrary to the Court's finding of the original meaning of the First Amendment's Free Exercise Clause.

Furthermore, whether a right applies to both the federal government and the states, the meaning of that right is fixed when it is adopted and does not change over time. As the Court stated in Bruen, the Constitution's "meaning is fixed according to the understandings of those who ratified it." Again, this is a very old principle of constitutional interpretation. Justice Thomas's concurrence in McIntyre v. Ohio Elections Comm'n (1995) (free speech) notes that since the 1838 decision in Rhode Island v. Massachusetts, the Supreme Court interprets the Constitution based on "the words of the constitution and the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions." Thus, constitutional texts, such as the Bill of Rights, have the same meaning when ratified as they do now.

These two premises lead to an obvious conclusion. When interpreting the Second Amendment, the time immediately surrounding its ratification in 1791 is the proper time period to look to for historical evidence of firearm regulation.

Reconstruction evidence standing alone cannot provide an authoritative interpretation of the Second Amendment. The Fourteenth Amendment incorporated the Bill of Rights and its fixed meaning against the states. Thus, under current Supreme Court precedent, the Fourteenth Amendment did not change the scope of the right incorporated against the states. Any late-breaking Reconstruction-era tradition that regulated the right to keep and bear arms in a way contrary to the Founding generation's understanding of the right should be rejected as inconsistent with the original public meaning of the Second Amendment.  For a comprehensive analysis, see Mark W. Smith, Attention Originalists, Harvard JLPP (Fall 2022).

The Supreme Court declined to make this issue one of the questions presented in Wolford, but it nevertheless has the opportunity to settle the issue in that case or at least to emphasize that 1791 must deserve pride of place, if not exclusive consideration, in Second Amendment cases.

The Transgender Athletics Cases

They were not as combative as I would have expected, and maybe even not 6-3.

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I have now finished reading the 250 pages of transcript in Little v. Hecox and West Virginia v. B.P.J. My global reaction was that the Justices were surprisingly not combative. After Skrmetti and Mahmoud last term, I was expecting a much more vigorous and contentious argument. But it was just the opposite. The Justices were surprisingly restrained. I don't think the vote here is 6-3. It might be 7-2, or maybe even 8-1 in favor of the government in both cases. Title IX is different than Title VII, and the Equal Protection issue here is different than the Equal Protection issue in Obergefell.

Perhaps the defining feature was Justice Kagan having a two-hour long discussion with all five lawyers about whether a plaintiff could bring an as-applied challenge for an equal protection claim. This was such a genuine and nerdy discourse. The advocates seemed surprised, and a bit frustrated, with how much time was being devoted to it. I'll talk about this issue later.

Maybe something could be said for the sequencing of the cases. Skrmetti and Mahmoud involved very thorny issues of parental rights to obtain medical treatment and parental rights to opt out of LGBT instruction. But Hecox and B.P.J. involved far simpler Title IX and Equal Protection analyses (putting aside the as-applied stuff for now). I think people genuinely do not understand all the nuances of transgender medicine but anyone who has ever watched a sporting event gets the issues in Hecox and B.P.J. I don't even think this issue is particularly polarizing. This is what Trump would call an 80-20 issue.

If the athletics case had come to the Court before Skrmetti and Mahmoud, the arguments could have been more contentious. Indeed, what if Grimm v. Gloucester County School Board, a bathroom case, was granted before Bostock was decided?

I think of Obergefell in a similar fashion. Thirty years ago, who would have thought that the Supreme Court would find a right to same-sex marriage five years before finding that Title VII bars LGBT discrimination. Sometimes, the Court does things out of order.

Finally, I think we have to account for the changing tides with regard to transgender issues. The public sees these matters far differently than a decade ago. The somewhat sedate arguments yesterday can be traced to the path already laid down.

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The All-Argentina Issue is Here

New from Reason: a look into what Javier Milei has accomplished and what it will take to make the most of Argentina’s window for real change. Out now for subscribers.

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