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The Insanity and Incoherence of the Bruen Test for Second Amendment Cases

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Reasonable people can disagree over whether the Constitution as a whole protects an individual right to own guns apart from militia service. Although the Supreme Court has misread text and distorted history to locate that right in the Second Amendment, which only applies to militia service, such a right could be created by reasonable judicial interpretations of the Ninth and Fourteenth Amendments. After all, the Court has recognized an array of fundamental unenumerated rights, such as the right of competent adults to refuse medical treatment, and Americans have prized their guns for centuries in ways that might suggest judicial protection for such a right. Reasonable people can also disagree in many cases involving gun laws over whether the right is burdened in ways that are not justified by the reasons supporting the law. The virtually complete ban on handguns in District of Columbia v. Heller , for example, might be such a law. But the Supreme Court’s decision in New York State ...
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What Weight, If Any, Should Be Given Racist Laws In A History-and-Tradition Test?

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In Wolford v. Lopez , Justice Alito wrote an opinion for a 6-3 Court, holding that a Hawaii law that requires express consent from the owner of private property otherwise open to the public to bring a firearm onto the private property violates the Second Amendment as made applicable to the states via the Fourteenth Amendment. Much of the dispute followed a familiar pattern in ideologically divisive Second Amendment cases. The conservatives invoked history and tradition to say that the challenged law is an impermissible innovation; the liberals objected to the test but said that even applying it, the law should be upheld. Beyond the usual back-and-forth, Justice Jackson, dissenting for herself and Justice Sotomayor, chastised the majority for considering history and tradition only at step 2 of the Bruen   test. The logic of originalism, she said, would make the question whether Hawaii's law even infringed Second Amendment rights subject to an inquiry into the original understanding...
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Does the Most Favored Nation Approach to Religious Discrimination Apply in Prison?

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Yesterday, the Supreme Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA) cannot be the basis for a lawsuit for money damages against state prison officials who blatantly violate it because, according to the 6-3 majority opinion of Justice Gorsuch, laws enacted pursuant to the Spending Clause cannot authorize liability against people who are not the recipients of federal funding. Louisiana, the Court said, took the federal money and thus subjected itself to RLUIPA, but the officers did not. As a consequence, petitioner Damon Landor was left without a remedy against the officers who shaved his head in violation of RLUIPA, even after they were clearly informed that doing so would violate Landor's sincere Rastafarian beliefs.  In my latest Verdict column , I offer three reasons why the holding in Landor v. Louisiana Dept of Corrections and Public Safety   is problematic. The first two track arguments made by Justice Jackson (joined by Justices ...
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The Most Deranged Non-Argument of All: Attack the Person

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Participating in politics never has been, is not now, and indeed must never involve engaging with others solely on the grounds of pure reason.  Emotion matters, evidence matters, and we have seen to our horror what can happen when those who pretend to rely on cold, supposedly objective reason get their hands on the levers of power. For most of the last few decades, however, I have been remarking on the notable decline in standards in US politics regarding what counts as an argument.  Reason is not at all sufficient, but it certainly is necessary.  And although Democrats offer more than the occasional example of forehead-slapping silliness, there is emphatically no equivalence between the two parties. Long before Donald Trump came along, Republicans had decided that "message discipline" was more important than the message itself.  Rote repetition of talking points became their standard operating procedure, no matter what any reporter or political opponent might do to ...
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Iran War Hawks Are Rightly Unhappy With U.S. Concessions to Iran But Willfully Blind to their Role in Giving Iran the Leverage that led to Them

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Just over a week ago, President Trump described the Memorandum of Understanding (MoU) with Iran that at that point had not yet been made public as "achiev[ing] everything we set out to accomplish - everything, and much more. Ending the current conflict, reopening the Strait of Hormuz and preventing Iran from ever obtaining a nuclear weapon." It was obvious that that statement was false when Trump made it. The various stated goals of the war the U.S. and Israel launched against Iran included regime change and eliminating the threat posed by Iran's nuclear and missile programs. "Ending the current conflict" was not one of the original goals because there was no direct military conflict before the war began. Nor was opening (or reopening) the Strait of Hormuz because it was open before the war.  Now that the MoU's full text is publicly available , it is even more obvious that the U.S. achieved none of Trump's objectives. Consider the MoU's declaration...
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Juneteenth!!

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For some reason, the White House is not hosting a raucous Juneteenth celebration today.  Strange. We at Dorf on Law chose not to put a bouncy house on our virtual front lawn, instead commemorating one of the country’s most important dates quietly and respectfully. We wish all of our readers peace and justice. - Neil H. Buchanan
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Rare Unanimity of Result in a SCOTUS Second Amendment Case

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Today's Supreme Court decision in United States v. Hemani is interesting for multiple reasons. (1) It is the first Second Amendment case on the Court's plenary docket in which the judgment was unanimous. Caetano v. Massachusetts was unanimous but was a per curiam GVR (grant, vacate, and remand), not a case in which there was full briefing and oral argument. (2) The unanimity is readily explained: at least as applied to the facts of this case, the underlying law at issue in Hemani is almost as stupid as the Massachusetts Supreme Judicial Court's decision in Caetano. That court said that stun guns are not protected "arms" within the meaning of the Second Amendment based on reasons that pretty obviously contradicted the mode of analysis required by Dist. of Columbia v. Heller . The law at issue in Hemani,  18 U.S.C. § 922 (g)(3), criminalizes firearm possession by anyone "who is an unlawful user of or addicted to any controlled substance." Hemani, fully co...
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The Irrationality of Markets (on Steroids)

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With almost no time to write today, I did want to comment briefly (albeit mostly via other writers) on the current madness in US financial markets.  In case anyone has missed it, several huge companies are “going public” this summer, which will make the superrich superricher.  The first such market splash has been playing out for the last few days. None of it makes sense, but that should surprise no one.  Here are a few examples of sane analyses of the financial markets' recent insanity. (1)  Hype and Glory: The SpaceX frenzy continues , Paul Krugman, June 17, 2026, an excellent analysis that demonstrates that SpaceX's financial "fundamentals" are completely insane.  Krugman includes this gem: Robin Wigglesworth, editor of the Financial Times blog Alphaville , memorably described Elon Musk’s company as a "very successful but fairly small satellite launch company, bolted onto a stagnant money-losing social media company [X, formerly Twitter] and a money-incinerat...
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Did a Super-Conservative Trump Lawyer Overstate the Rights of Undocumented Immigrants?

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Yesterday's New York Times revealed that in April 2025, White House Secretary Will Scharf--described in the article as such a conservative lawyer that he "had bemoaned John McCain as too moderate for the 2008 Republican nomination, and believed Mr. Trump had been vindictively prosecuted after his 2020 election loss"--wrote a memo explaining in detail why the apparent plan to suspend habeas corpus for undocumented immigrants was unlawful. The big news here is not what was in Mr. Scharf's memo but the fact that he felt the need to write it. The memo is a generally correct, even anodyne, recitation of the constitutional law of habeas corpus. The key case is Ex Parte Merryman , which held that Congress, rather than the president, has the power to suspend the privilege of the writ. Admittedly, Merryman was a decision by Chief Justice Taney in his capacity as a Circuit judge, not a ruling of the full Supreme Court, but its reasoning is sound. Although the Suspension Claus...
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The Knicks of Theseus

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Jerry Seinfeld (playing himself in the snippet of a standup routine that began the show in the early seasons of Seinfeld ) poked fun at sports fans who remain loyal to their team, even as the players are traded or sign with other teams as free agents: you're basically rooting for their uniforms, or, as he put it, clothes . And yet, even Seinfeld himself doesn't think that or perhaps thinks or at least feels that, despite its irrationality, there is a reason to root for the clothes. There he was courtside and chatting excitedly with Larry David at the conclusion of the Knicks' astounding comeback in Game 4 . Moreover, the 2026 Knicks are not just a bunch of guys wearing Knicks uniforms. They are, in a sense that is not always true of sports teams, a continuation of Knicks teams--great, terrible, near-great, mediocre, and good--of the last 56 years. I was six years old in 1970 when Willis Reed hobbled onto the court, made two shots, and then ceded the day to Walt Clyde Frazie...
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