Really enjoying this fascinating symposium at @dukelaw.bsky.social on historical facts & constitutional law, incl. this great panel w/ @kmtani.bsky.social, Christen Hammock Jones & Darrell Miller about choices in the compilation of historical records.

Back in June, the Maryland Supreme Court cited one of my recent law review articles (p. 13 of the opinion), but I'm such a scatterbrain that I didn't notice until now. The Court upheld MD's law disarming those convicted of a common law crime punishable by 2 yrs... 1/2 law.justia.com/cases/maryla...

Some 1st Amendment law re public higher ed & public subsidies: 1. Although SCOTUS held that public employees generally are not protected for speech conveyed as part of their duties, they said there might be an exception for higher ed. 2. For extramural speech, all pub. employees ... 1/x

Re-upping this draft for the Monday crowd. Comments welcome!

Confines contemporary governance to the brittle mold of the miry past is a great line. The battles over that miry past and presentation of it like a small world ride as opposed to honest grappling with history are probably quite pernicious in the long run.

📝I've uploaded a new draft to @ssrn.bsky.social that grew out of a panel before @sherifgirgis.bsky.social's excellent Dunwody lecture at UF this spring. In the paper, I analyze Trump v CASA as a window into the history & trad'n approach--& find some troubling signs. papers.ssrn.com/sol3/papers....

📝I've uploaded a new draft to @ssrn.bsky.social that grew out of a panel before @sherifgirgis.bsky.social's excellent Dunwody lecture at UF this spring. In the paper, I analyze Trump v CASA as a window into the history & trad'n approach--& find some troubling signs. papers.ssrn.com/sol3/papers....

I am struggling to put what I am feeling into words I absolutely think Charlie Kirk created pain for people all across this country But I also believe in non-violence, oppose political violence, believe in treating people with dignity, and believe that in community, we ultimately find peace 1/

CA3, 2-1, upholds NJ's ban on guns at zoos, parks&rec facilities, beaches, libraries&museums, bars, entertainment facilities, hospitals, public transport, playgrounds, and youth sports events. Obama, Biden judges in majority. Trump judge in dissent. www2.ca3.uscourts.gov/opinarch/231...

Utterly & absolutely depraved. This is done in our names—in the name of the United States of America. Appalled at leaders who not only support & cheer this on but also at those who claim to oppose it but sit idly by & police the tone of critics’ outcry, for fear of upsetting norms of decorum.

Great that we live in age when legislators can successfully call for firing faculty & administration via tweet because they don’t like what’s being taught in the classroom. www.insidehighered.com/news/faculty...

Chief Justice Roberts in SFFA just two years ago: "Eliminating racial discrimination means eliminating all of it." Yet when the government is EXPLICITLY using race & ethnicity to detain & question people, he gives it his blessing.

I haven't been posting regularly about the stream of troubling and unexplained shadow-docket rulings from the Supreme Court. But… (1/3)

Federal appeals normally take over 2 YEARS, start to finish. Here, the circuit court moved heaven and earth and produced its unanimous 61-page order, affirming the district court, less than 3 WEEKS after the district court's. The Supreme Court just nuked it without a syllable of explanation.

Astonishingly, astonishingly bad. I think of all the folks I know who fit these criteria, the families of my kids’ friends who were already worried about crackdowns, the hardworking residents all around my city & county—all now subject to explicit ethnic profiling & forced LEO encounters. Sickening.

Well that’s quite the push notification.

Was trying to wipe a white thing off my beard & then I realized it was a cluster of gray hair 😔

When the Vesting Clause is all that’s left of the Constitution.

Just to be clear, not only is this morally obscene, it’s also flagrantly unconstitutional under the Supreme Court’s Second Amendment precedent (& inconsistent w existing federal law, not that that has ever stopped this administration).

This is a very good breakdown by @ilyasomin.bsky.social of the 5th Cir decision rebuffing Trump’s use of the Alien Enemies Act. As he notes, the dissent’s stance is breathtaking. I think it should shock Americans of good conscience as antithetical to our system of govt. reason.com/volokh/2025/...

Spending some time writing today, and because it's a timely topic, there's a lot of new scholarship still in draft form. I'm out here citing public drafts promiscuously, despite their injunction not to do so w/out permission. See also @msmith750.bsky.social: red.library.usd.edu/sdlrev/vol70...

Some irony in the fact that the same folks who revere the founders are aghast that jurors are performing a role the founders emphatically wanted them to perform in providing a robust check on the govt’s power to throw people in jail.

supreme irony that the party of lincoln is now the party of taney

About a year ago, I wrote this op-ed in @newrepublic.com about a pretty wild district court decision holding that the federal machine gun ban violates the Second Amendment. Today, the Tenth Circuit correctly reversed: www.ca10.uscourts.gov/sites/ca10/f.... newrepublic.com/article/1853...

8th Cir. holds that it does not violate the Second Amendment for state to offer no mechanism for restoration of rights of a forcible felon because the colonial-era penalty for these crimes was death. ecf.ca8.uscourts.gov/opndir/25/09...

Teaching McDonald v. City of Chicago today & noticed something very strange. In his concurrence there, Thomas argues that Cruikshank is entitled to no precedential weight bc of the context w/in which it arose -- and yet in Bruen he cites to Dred Scott *favorably* for its persuasive value. V odd.

NEW: The Fifth Circuit rejects a Second Amendment challenge to the federal law strictly regulating the possession of firearm silencers. The panel describes the law as presumptively lawful & holds that the challenger failed to rebut that presumption on these facts. cases.justia.com/federal/appe...

I know this case is crazy because the judge stayed up all night to hold DOJ's feet to the fire, but as a parent with young(ish) kids, I'm also thinking about how miserable the process must have been for these kids staying up all night, confused, likely scared and overwhelmed.

We just prevailed in our case against Trump's massive IEEPA tariffs, in the Federal Circuit! All challenged IEEPA tariffs ruled illegal, but scope of injunction TBD. Will have more to say later. Here is a link to the ruling (7-4 decision by en banc court): www.cafc.uscourts.gov/opinions-ord...

4th year of teaching at Pepperdine and 4th year with a new class prep (all by choice). Really looking forward to teaching Con Law II (Individual Rights) this spring! Send any casebook or reading recommendations my way!

People being real is what we need more of in politics. (So long as what’s real about them isn’t vile, of course.)

I doubt the Court is likely to take this case up with all the other Second Amendment questions swirling around, but the sprawling disagreement among lower courts about how to use Bruen - even when analyzing federal laws - continues to show the problems it creates, including troubling disuniformity!

In light of today’s shooting in Minnesota, here’s a relevant bit from the gun industry’s own research, which I obtained earlier this summer

NEW: Creating a quasi circuit split w/ the 5th & 8th Circuits, the 10th Cir reverses a lower court decision holding that the Second Amendment precludes enforcing the ban on gun possession by illegal drug users. It remands for further fact-finding on future danger. cases.justia.com/federal/appe...

Kinda feels like this could tee up In Re Neagle round II. Big issue there seemed to be whether the executive action was duly authorized under the Constitution and laws. supreme.justia.com/cases/federa...

Looks like somebody did not get the [Shor] memo. (That’s a good thing, and it’s refreshing to see some electeds with enough courage to speak the truth.)

Current Justice most likely to film their own YouTube video to append to an opinion?

Not endorsing the particulars here, but this obit includes a lot that I'd never known about Dobson's work, despite growing up in (& later growing estranged from) movement evangelicalism. Hard to understate Dobson's impact on contemporary politics & religion in the US.

As the panel highlights, lower courts are in accord here. & recall that Justice Kavanaugh indicated just two months ago that the Supreme Court should take up one of these cases in the next year or two (www.supremecourt.gov/opinions/24p...). It's not clear what benefit further "percolation" brings.

BIG: The 2d Cir rejects Second Amendment challenge to CT’s assault weapon & large capacity magazine ban. These laws have been nearly universally upheld on appeal (pre & post-Bruen) but…there’s reason to doubt the current Supreme Court views things similarly. ww3.ca2.uscourts.gov/decisions/is...

Take cover, imminent unsigned, unreasoned SCOTUS stay incoming!

Luttig is communicating vastly more clearly and honestly about Roberts and Scotus than most Democratic officials are. It’s absolutely flabbergasting.

Teaching Heller tmw & there's a lot frustrating about Scalia's opinion, but I don't think I'd noticed this one before. We all agree it's not accurate, right? The Const'n contains plenty of phrases w/ technical meaning an ordinary citizen might not know--marque & reprisal, bills of attainder, etc.

⚖️Yesterday, the Second Circuit upheld the federal law prohibiting interstate transport of firearms (trafficking), 18 U.S.C. § 922(a)(3), against a Second Amendment challenge. United States. v. Vereen. 1/n ww3.ca2.uscourts.gov/decisions/is... #2A #GVP

It’s only my second day, and I swore I’d only be an observer, but already the discussion has turned to whether there’s a due process right to openly carry your firearms. Biting this tongue hard.

NEW: 10th Cir declares that New Mexico’s 7 day waiting period for gun purchases violates the Second Amendment. Evidence shows such laws have a marked effect on firearm suicides, saving untold lives, but no matter — Bruen means history is all that counts. www.ca10.uscourts.gov/sites/ca10/f...

The longevity of things courts are suddenly chucking out is a good sign of how revolutionary this movement is. New York’s law that got the axe in Bruen was 110 years old, operating for over a century w/out const’l qualms.

Decided to sign up for some aggravation this semester

As a friend pointed out, Justice Scalia in Heller approvingly cited a dictionary defining "arms" as "any thing that a man . . . useth in wrath to cast at or strike another." In other words, it seems, a sandwich might at times be protected by the Second Amendment. Meaning...new bumper sticker?

I find myself thinking about historian Robert Paxton’s 2004 definition of fascism far too often than I’d like these days. Note that these sentences were written back when Donald Trump was a NYC playboy libertine who donated to Democrats.