Genome-wide association studies (GWAS) use DNA statistical analyses to examine the relationship between genotypic differences and phenotypic traits. Revolutionizing genetics, these studies have discovered more than 50,000 associations of genome-wide significance between genetic variants and common diseases and traits. GWAS also have transformed the study of physical anthropology, establishing the relatedness of modern and proto-humans and other primates as well as modern humans' ancient migration patterns.
The NIH's 2014 Genomic Data Sharing Policy (GDSP) governs collecting, storing, and accessing the databases upon which most GWAS research in this country relies. Many data repositories refuse access to those who pursue what the NIH categorizes as "stigmatizing" or "sensitive" research.
The GDSP does not comply with the Administrative Procedure Act (APA). The policy's "sensitive" and "stigmatizing" standard lacks any statutory basis and is perforce arbitrary and capricious.
And even assuming that the GDSP is consistent with administrative law, the policy is best viewed as a condition to obtain a government benefit or as a viewpoint-based restriction of generally available government information. So characterized, the GDSP violates the First Amendment.
I just learned that, in the Missouri dialect of legalese, the arguments supporting or opposing motions are called "suggestions," e.g.,
A party filing any motion, except motions for new trial, motions for trial settings, or motions which require proof by introduction of evidence (as distinguished from proof by affidavit pursuant to Supreme Court Rules), shall serve and file at the same time brief written suggestionsinsupport thereof, together with authorities relied upon.
The terms aren't unheard of outside Missouri, but Missouri is definitely the heartland of suggestions.
From Richards v. Union Leader Corp., decided Wednesday by the N.H. Supreme Court, in an opinion by Justice James Bassett, joined by Chief Justice Gordon MacDonald and Justice Patrick Donovan (for more on the general legal principle here, which emerges from mid-1900s concluding similarly as to allegation of Communist sympathies, see this post):
The plaintiff is the father of two children enrolled in the Hanover School District …. In 2021, the district "began sending parents an increasing number of communications about [its] increasing focus on 'equity' and 'anti-racism.'" The communications indicated that the district was planning "significant curricular changes around these issues." The plaintiff was "concerned by materials that he learned were in use in the school district." While he believed the curricular changes were "well-intentioned," the plaintiff believed that the changed curriculum was "deeply divisive and ultimately harmful to the goal of a quality education and a society where everyone is treated equally."
As a result of his concerns about the district's proposed curriculum changes, the plaintiff supported "legislation that prohibits New Hampshire schools from teaching children that they are 'inherently racist, sexist, or oppressive, whether consciously or unconsciously.'" The parties agree that this legislation was House Bill 544 (HB 544). The plaintiff submitted public testimony in favor of the bill.
The Union Leader published an op-ed written by defendant Azzi, titled "White supremacists reveal content of their character," and saying, among other things (I'm excerpting the allegedly defamatory statements here),
Desperate to stay bonded to America's original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology ….
Those who favor whitewashing history—favor suppressing the grievances and rights of Americans unlike themselves—favor suppressing the franchise of citizens who don't look like them—have shown they'll lie … to protect their privilege and power ….
Plaintiff sued for defamation, but the court said that, in context, these statements would be understood by reasonable readers as statement of opinion, not of provable fact:
[This defamation] action is based on the defendants' mistaken use of a photograph and sketch of the plaintiff, David Sackler, while reporting on the OxyContin endemic. The plaintiff is not the David Sackler of the Sackler family and Purdue Pharma. The defendant, NYP HOLDINGS, INC., publishes the "N.Y. Post" which is a daily publication that is available worldwide in hard copy and online editions….
Plaintiff alleges that the N.Y. Post used a photo of him instead of the David Sackler of Purdue Pharma in an online article about the Sackler family of Purdue Pharma published on May 12, 2019. Mr. Sackler notes that the photograph utilized by the Post he is holding a bottle of Trimwater, a beverage distributed by his company, Lifestyles Beverages, Inc. The Post's story also ran in its printed edition which featured the same photograph but had been cropped and did not show the beverage from the plaintiff's company. Mr. Sackler also alleges reputational harm when the NY. Post published a different picture of him again holding a bottle of Trimwater in a [different] online article entitled "Met to reject gifts from the Sacklers amid the fury over the opioid crisis." …
Mr. Sackler cites specific examples of reputational harm that occurred in California, Florida, New Jersey and New York due to the defendant's use of his photograph when reporting on the opioid crisis. Mr. Sackler also points to phone calls and a Facebook message received from people in Maryland, Michigan and Texas regarding the use of his image in articles reporting on the David Sackler of Purdue Pharma. In addition, Mr. Sackler alleges multiple incidents of harm and steps taken to avoid additional harm. For example, being asked in business meetings about the publications or needing to make restaurant reservations under a different name or changing his appearance to avoid being accosted or attacked and that such a fear was especially heightened when out with his family.
The question is whether the court should apply New York law, or the law of New Jersey, where Sackler resides. Under New York law that existed as of the time of the publication, private figure plaintiffs could recover demonstrated compensatory damages based on a finding of gross negligence. New Jersey, however, has long required a showing of "actual malice"—i.e., knowing or reckless falsehood—for all plaintiffs, so long as the statement was on a matter of public concern. (New York has recently joined New Jersey on this, by statute, but that statute has been held not to be retroactively applicable.) The First Amendment requirement in such situations is a showing of negligence, but states can impose higher requirements.
I've been a bit skeptical about seizure of Russian assets, mostly on pragmatic grounds: Seizing a sovereign's money when one is not yet actually at war with the sovereign strikes me as a perilous matter, not quite as much as seizing the sovereign's territory but still a big deal. I was also unsure that this sort of thing is even allowed under generally accepted international law principles.
I personally don't view such principles as binding, when we're talking about disputes among adversaries. (Among friends or at least generally peaceful trading partners, I think they are extremely important, because there are huge practical benefits from everyone knowing the rules and following them.) But I do think that even when dealing with adversaries, there are practical reasons to at least pay some attention to them.
When this came up in conversation last week with my colleague here at Hoover, Philip Zelikow, he told me that such seizure is indeed consistent with international law, though of course that doesn't resolve the pragmatic question of whether it's wise. There's a report on the subject on which he is one of the authors, "On Proposed Countermeasures Against Russia to Compensate Injured States for Losses Caused by Russia's War of Aggression Against Ukraine" (May 20, 2024), which I thought I'd pass along for those of our readers who are interested; naturally, I'll be glad to post serious arguments on the other side as well. An excerpt:
9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).
A North Carolina man used artificial intelligence to create hundreds of thousands of fake songs by fake bands, then put them on streaming services where they were enjoyed by an audience of fake listeners, prosecutors said.
From approximately 2017, up to and including 2024, MICHAEL SMITH, the defendant, orchestrated a scheme to steal millions of dollars of musical royalties by fraudulently inflating music streams on digital streaming platforms (the ''Streaming Platforms"), such as Amazon Music, Apple Music, Spotify, and YouTube Music. SMITH purchased from a coconspirator hundreds of thousands of songs that were created through artificial intelligence ("AI") and then uploaded to the Streaming Platforms.
SMITH then used "bots"—automated programs—to stream the AI-generated songs billions of times. At the height of his fraudulent scheme. SMITH used over a thousand bot accounts simultaneously to artificially boost streams of his music across the Streaming Platforms. By manipulating the streaming data in this manner, SMITH fraudulently obtained more than $10 million in royalty payments to which he was not entitled….
I'm delighted to pass along this item from my Stanford colleague Prof. Michael McConnell (who also served for several years on the Tenth Circuit):
The National Law Journal reports that retired district court judge Nancy Gertner, joined by ethics experts Stephen Gillers and James Sample, have filed an amicus brief in the Eleventh Circuit asking that the court reassign the Trump Classified Documents case to a judge other than Judge Aileen Cannon on remand (assuming that the court does not affirm dismissal of the case).
The only reason the brief gives for reassigning the case is that the writers think "[a] reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon's many efforts to undermine and derail the prosecution of this case." The brief points to decisions by Judge Cannon that the writers think were overly sympathetic to Trump, such as her 2022 ruling (reversed by the Eleventh Circuit) appointing a special master to review the documents, as well as what the writers call a "pattern of delay." Obviously they also think Judge Cannon's dismissal of the case on the ground that the special prosecutor's appointment was constitutionally invalid was incorrect. The brief offers no evidence of biased statements, extrajudicial conduct, political contributions, or anything else that is ordinarily the basis for a charge of judicial bias.
This is an unsound and dangerous suggestion. It is hardly unusual for "reasonable members of the public to conclude" that judges' rulings are wrong, unfair, and biased. They often are right. Especially in politically charged cases, it is easy for one side to think the judge is biased; ask Trump supporters how they feel about Judges Marchan and Chutkan. But ethics complaints must be based on something more than disagreement with the legal merits of the judge's rulings. If not, judicial ethics complaints would become yet another weapon in our culture of lawfare. If appellate courts start to reassign cases whenever they suspect the rulings were the product of political bias, there will be no end of it. The job of appellate courts is to review rulings of law, not to pick and choose trial court judges.
Sounds like the author wanted to write "breach-of-contract action," but inadvertently contracted it. A search finds about ten other opinions that speak of "breach of contraction," usually just for "breach of contract" but in one instance likewise seeming to refer to a breach of contract action.
ProPublica obtained a recording of a call that the First Liberty Institute held with donors. [For full disclosure, I have spoken at several First Liberty events.] As readers of this blog likely know, First Liberty has litigated landmark religious liberty cases before the Supreme Court, including Kennedy v. Bremerton School District, Groff v. DeJoy, and Carson v. Makin.
The biggest reveal is that Kelly Shackelford, the organization's longtime leader, read over the call an email he received from Ginni Thomas. Thomas praised First Liberty's efforts to oppose so-called Court "reform." And here is the quote that has generated the most attention:
"YOU GUYS HAVE FILLED THE SAILS OF MANY JUDGES. CAN I JUST TELL YOU, THANK YOU SO, SO, SO MUCH."
In the Washington Post, Ruth Marcus calls on Justice Thomas to recuse himself from any case involving First Liberty:
There isn't merely an ethics code to which the justices have voluntarily subjected themselves, albeit under duress. There's a federal law that requires justices, like all other judges, to recuse themselves in situations in which their impartiality might reasonably be questioned.
Clarence Thomas, apparently, didn't think matters rose to that level when it came to election-related cases. But how can he justify continuing to sit on cases involving First Liberty now that we know Ginni Thomas's is "SO, SO, SO" beholden to the group?
Nothing about the remark suggests that Justice Thomas is "beholden" to First Liberty. But even assuming there was merit to the claim, Marcus's charge misses the mark, wildly. Let's review some history.
First, during the New Deal, Chief Justice Charles Evans Hughes wrote a letter to Congress to oppose the Court Packing bill. Yes, the presiding officer of the Supreme Court actively lobbied against the President's plan. At least until recently, Hughes's role was celebrated. If Hughes could oppose legislation, it seems far more attenuated to say a Justice's spouse cannot express an opinion in a private correspondence to a group opposing Court "reform" legislation.
Second, federal judges have lobbied Congress for pay increases. More recently, some judges have lobbied Congress for legislation to protect a judge's identity. Judges generally cannot engage in politics, except, it seems, when the politics concerns the judiciary. There are many such examples. This overt lobbying is far more serious than the spouse of a judge thanking an organization for defending the judiciary.
Third, since I am in the spirit of talking about RBG today, in June 2008 Justice Ginsburg spoke at an ACLU event and praised the organization, even as ACLU cases were pending. No recusal.
Fourth, I can tell you from experience that judges routinely express both gratitude and dismay with what people write and say about them. I've been raked over the coals by some federal judges over my writings. I've also been praised by federal judges for my writings. It goes with the territory. There was a time where the American Bar Association and other groups spoke out against efforts to "impeach Earl Warren." Do we really think Earl Warren never said "thank you"?
Here, Ginni was expressing a sentiment that is widely held, but is not commonly expressed. Where are all the "Democracy" people on the Court packing plan? Has Mike Luttig said a word about jurisdiction stripping, which Kamala Harris has endorsed? There are far too few people willing to defend the Court. And I'm not surprised that Ginni expresses her gratitude.
Finally, I presume that every word I write or speak, whether in an email, text message, or class, will one day wind up in ProPublica. Privacy, like the Constitution, is dead. And I choose my words accordingly.
Last night I wrote that Court watchers could safely skip Justice Jackson's new book tour. My comments were premature. Today, Justice Jackson appeared on The View. If you haven't watched The View (and you would have good reason not to), this program features five female hosts who interview guests. There is often a lot of cross-talk, and it is not always possible to track a clear thread. But there was one colloquy that could be problematic, though I'm not sure that Justice Jackson so intended.
At the 27:45 mark, the segment resumes with a question about Vice President's Harris's nomination.
Sarah Haines: Politics aside, the upcoming election marks another significant milestone for women of color with Vice President Harris at the top of the ticket. One, what do you make of her historic candidacy and as far as potential redos of 2020 go, are you confident our courts will faithfully uphold the votes if contested.
Jackson begins by not actually answering the question asked about the Court, and deftly reframes it to another question that is completely anodyne:
Jackson: I am confident that the Courts will faithfully uphold the law because that is our duty, what we do.
You see what she did? Haines asked about upholding the votes, and Jackson said she would uphold the law. Very crafty. I wonder if that messaging was rehearsed, or done on the fly. I've done a lot of media training, and these sorts of question-reframings are generally practiced.
But then Jackson answered the question about Harris.
Jackson: And I know a little bit about being a first. I think a lot of people were very happy about my appointment in part because they saw it as progress for the country. That there was a time in which black women wouldn't have had this opportunity. And so I am not only so honored but whenever we someone moving into a position where no one has ever been, it gives a lot of people hope.
Was Jackson only talking about herself? Or was she also talking about Harris? If Harris loses, would that be bad for hope?
At that point, Joy Behar, another host jumps in.
Behar: Like Obama is the perfect example.
Jackson: It gives a lot of people hope.
It isn't clear if Jackson was repeating her "hope" line about Obama or about her own "first" or about herself and Harris. I've watched the video a few times, and I can't tell for sure.
Given that this was a fast-moving interview, I would give Justice Jackson the benefit of the doubt. But I think a reasonable person watching this interview could see Justice Jackson as saying that the "first" nominations of Barack Obama and Kamala Harris, like her own nomination, gave a lot of people hope. Hope was a huge theme of Obama's 2008 campaign. Indeed, you might recall the iconic Obama "Hope" poster.
Jackson's comments brings to mind remarks that Justice Ginsburg made in 2016. No, not calling Trump a "faker" and saying she would move to New Zealand if he won. Instead, this was a comment about the other candidate in the race, Hillary Clinton. She told Mark Sherman of the AP:
"It's likely that the next president, whoever she will be, will have a few appointments to make," Ginsburg said, smiling.
Three things jump out. First, pronouns matter. Ginsburg said "she," a clear reference to Clinton. She may have been trying to be coy, but she clearly signaled her preferred candidate. Second, Ginsburg also clearly signaled that she would step down if Clinton was President. Slate aptly observed that Ginsburg "hints she wants Clinton to name her successor." In hindsight, that plan didn't work out. Third, Ginsburg was smiling. Dare I say, she joyful about a Clinton victory? Dare I say, hopeful?
Justice Ginsburg smiled when asked about the prospect of Hillary Clinton becoming President. And Justice Jackson seems to have said the prospect of Kamala Harris becoming President brings a lot of people "hope." And Jackson was beaming widely when she said it.
I'll let others judge how they read this interview. I think the better answer for Justice Ginsburg, and Justice Jackson, would have been "I cannot comment on a political race." This interview was far more problematic than any flag Martha-Ann Alito ever flew. Perhaps Justice Jackson should be grateful there is no enforceable ethics code that could compel her to recuse from all election-related cases.
The chaplain's post "discuss[ed] 'how God designed each person as male or female, and that sex is immutable'" and "stated it is unfair to allow males to compete in women's sports."
In 2013, Dr. Andrew Fox ("Plaintiff") began volunteering as the Lead Chaplain at the Austin Fire Department ("AFD"). The chaplain program is part of AFD's Wellness Center, which houses numerous support services for firefighters, as well as other programming related to the physical and mental health of first responders. Plaintiff spent upwards of ten hours per week—all unpaid—ministering to AFD members and running the chaplaincy program.
Off AFD premises, Plaintiff maintained a blog where he discussed various aspects of the Christian faith. In 2021, Plaintiff began writing blog posts discussing "how God designed each person as male or female, and that sex is immutable." Specifically, he stated it is unfair to allow males to compete in women's sports. According to Defendants, the blog posts were calculated to provoke and "trigger" readers.
After hearing about the blog and finding it offensive, Lieutenant Xolochitl Chafino, AFD's LGBTQ Liaison, informed Chiefs Baker and Vires. At the time, Baker and Vires were unaware of the blog's existence. After some AFD members found the blog post upsetting and insulting, Baker and Vires met with Plaintiff to discuss their concerns. According to Plaintiff, the meeting went well and included "genuine[ness]" and "respectful dialogue." However, this meeting did not resolve the conflict.
Thereafter, Chafino printed out copies of the blog to solicit comments from AFD members, civilian employees, and outside individuals. Chafino also met with Plaintiff on multiple occasions. At one meeting, Chafino felt that Plaintiff stereotyped LGBTQ people and told Vires that she never wanted to meet with Plaintiff again. Moreover, she told Baker that AFD personnel would never seek services from Fox or the chaplain program again.
Baker and Vires directed Plaintiff write an apology for his blog post. Baker believed this would restore faith and confidence in the AFD chaplain program. Baker intended the letter to communicate that AFD personnel should feel welcome using the chaplain program, regardless of their identity or beliefs. However, Baker and Vires were not satisfied with the letter. Rather, Baker found it defensive and accusatory. Plaintiff then wrote a second apology. Baker found the second letter equally unsatisfactory and Plaintiff was terminated from serving as a volunteer chaplain….
The court applied the Pickering v. Bd. ofEd. (1968) test applicable to the government's action as employer; under that test, an employer can discipline or terminate employees for their speech, even on matters of public concern, but only if the harm caused by the speech to the employer's operation outweighs the value of the speech. (Among other things, this essentially allows a sort of "heckler's veto" under which, if enough people complain about the speech, it can indeed be restricted.) And the court concluded that the evidence wasn't clear on the degree of harm to the employer:
This post is a list of my upcoming speaking engagements for the fall 2024 semester. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.
I will likely add additional events and information to this post, as they are scheduled. Indeed, two or three such events are already in the works.
In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! At this point, there are not many slots available this fall; but more are feasible in the spring 2025 semester. You can get an overview of the issues I write and speak about at my website.
Sept. 17, 2:25-3:40 PM, Cato Institute, 1000 Massachusetts Ave., Washington, DC: "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson," Panel on "Novel Constitutional Questions." Cato Constitution Day symposium. Registration and other information available here. This presentation is based on my article of the same title.
Sept. 21, Federalist Society Texas Chapters Conference, Omni Fort Worth Hotel, 1300 Houston St, Fort Worth, TX, 3-4:15 PM: "Immigration is Not Invasion," Panel on Border Litigation. Registration and other information available here.
Oct. 2, Georgetown University Law Center, Washington, DC, 6-7:30 PM: "Immigration is Not Invasion" (debate with former Arizona Attorney General Mark Brnovich). Sponsored by the Georgetown Federalist Society.
Oct. 4, Pacific Legal Foundation Symposium on "Too Far: Imagining the Future of Regulatory Takings," George Mason University, Arlington, VA, 10:40-12 AM: "Legislative and Judicial Approaches to Curbing Exclusionary Zoning." Panel on "How Policy Changes Can Address Incursions on Property Rights Where Courts Have Failed to Do So?"
Oct. 8, University of North Dakota Law School, Room 8, 215 Centennial Dr Stop 9003, Grand Forks, ND, 12-1 PM: "Democracy and Political Ignorance: Why Smaller Government is Smarter." Sponsored by the University of North Dakota Federalist Society.
Oct. 12, Mercatus Center, Markets and Society Conference, Falls Church Marriott Fairview Park, Salon VIII, 3111 Fairview Park Drive, Falls Church, VA, 1:30-3 PM: Commentary on David Schmidtz's book Living Together. Book panel on Living Together: Inventing Moral Science. Event schedule and registration information here.
Oct. 17, Loyola University Chicago School of Law, Chicago, IL, 12-1PM central time/1-2 PM eastern time (virtual event): "Trump v. Anderson: Implications for 2024 and Beyond." Panel with Prof. Neil Siegel (Duke Law School) and Prof. Derek Muller (Notre Dame). Event will be moderated by Prof. Tyler Valeska (Loyola). Free registration here.
Oct. 17, University of Missouri School of Law, Hulston Hall, Room 7, Columbia, MO, 5:30-7 PM: "The Economics and Politics of Immigration." Co-sponsored by the University of Missouri Federalist Society and the Hispanic Law Student Association.
Oct. 29, Avenir Suisse, Puls 5, Giessereistrasse 18, Zurich, Switzerland, noon-1:30 PM: "Free to Move: Foot Voting, Migration, and Political Freedom." I believe invitations for this event run through Avenir Suisse (the Swiss think tank organizing it).
Oct. 31, NZZ Real Estate Days (annual conference of the Swiss real estate industry), Davos Switzerland, 9:20-9:45 AM: "The Case for Global Freedom of Movement" (tentative title). This event is limited to participants in the NZZ Real Estate Days conference. See here for information about the conference.
Nov. 11, University of Texas School of Law, Room TNH 2.140, Austin, TX, 11:50-12:50 PM: "The Constitutional Case Against Exclusionary Zoning." Presentation based on article of the same title. Sponsored by the Texas Law Review. With commentary by Prof. Susan Morse.
Nov. 13, University of Texas School of Law, Austin, TX, Room 2.140 12-1 PM: "Why Immigration Restrictions are Bad for National Security." Sponsored by the University of Texas Federalist Society.
Nov. 21, Institute for American Constitutional Thought and Leadership, University of Toledo, Toledo, OH, time TBD: "Free to Move: Foot Voting Migration and Political Freedom" (tentative title) (debate on immigration with Prof. Christopher Wellman).
The mandate required platforms to, among other things, report to the state "how the terms of service define and address (a) hate speech or racism; (b) extremism or radicalization; (c) disinformation or misinformation; (d) harassment; and (e) foreign political interference, as well as statistics on content that was flagged by the social media company as belonging to any of the categories."
From today's Ninth Circuit opinion in X Corp. v. Bonta, decided by Judge Milan Smith, joined by Judges Mark Bennett and Anthony Johnstone:
AB 587 … [among other things requires] that social media companies submit to the State a semiannual report detailing their TOS and content-moderation practices including, if at all, how the terms of service define and address (a) hate speech or racism; (b) extremism or radicalization; (c) disinformation or misinformation; (d) harassment; and (e) foreign political interference, as well as statistics on content that was flagged by the social media company as belonging to any of the categories (TOS Report) …. [W]e refer to these … as the Content Category Report provisions.
X Corp. is likely to succeed in showing that the Content Category Report provisions facially violate the First Amendment….
[T]he Content Category Reports are not commercial speech. They require a company to recast its content-moderation practices in language prescribed by the State, implicitly opining on whether and how certain controversial categories of content should be moderated. As a result, few indicia of commercial speech are present in the Content Category Reports.
The U.S. Supreme Court in New York State Rifle & Pistol Asssoc. v. Bruen instructed lower courts how to decide right to arms issues: "In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." If so, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." This Post describes how some lower courts are evading Bruen by contrivances that claim particular regulations do not involve "the Second Amendment's plain text."
This Post proceeds as follows:
1. A short overview of how a preliminary step in most constitutional adjudication necessarily involves a look at the plain text of the clause in question.
2. Discussion of the plain text of the Freedom of the Press Clause, which is the Bill of Rights provision most similar to the Second Amendment, in that both involve rights regarding particular man-made tools.
3. Summary of Supreme Court glosses on the meaning of the Second Amendment, which may, at least arguably, save some arms restrictions that could not be justified under Bruen's "historical tradition" test.
4. Summary of some easy cases that held an individual's conduct was not protected by the Second Amendment's plain text.
5. Discussion of cases involving firearms businesses, some of which wrongly claimed that the plain text does not apply to firearms commerce.
6. Discussion of waiting periods, shooting range zoning, rifle bans, and serial number cases that incorrectly claimed that the activity at issue was not covered by the Second Amendment's plain text. In most of these cases, the courts conducted an alternative analysis that upheld the challenged law under the historical tradition test, so the erroneous rulings about plain text might be considered harmless error. This Post does not examine the quality of reasoning of any court's application of the historical tradition test.
7. Finally, the Post discusses a pair of cases where judicial error about plain text clearly changed the result. When deciding challenges to prohibitory laws about switchblade knives, the Massachusetts Supreme Judicial Court and the U.S. District Court for the Southern District of California both agreed that the government failed to meet its burden to justify the statutes based on historical tradition. The Massachusetts court therefore held the law unconstitutional, because carrying a switchblade knife is conduct protected by the plain text of the Second Amendment. The California court, however, claimed that even the mere keeping of a switchblade knife in one's home does not involve the plain text of the Second Amendment.
