In the Supreme Court, Illinois has filed its brief in opposition in Harrel v. Raoul (and its companion case Herrera v. Raoul).  These cases challenge Illinois’s ban on some semiautomatic rifles (“assault weapons”) and high-capacity magazines.  The brief in opposition is remarkable for how it asks the Supreme Court to expound which “arms” the Second Amendment protects.  The State’s brief leaves me wondering whether Illinois recognizes any rifles to have constitutional protection, or whether the state believes that only handguns an ..read more

A few weeks ago, Will Baude and Michael Paulsen dropped a legal bomb on the 2024 presidential race by arguing that former President Donald Trump is constitutionally ineligible for a second term in office.  They base their argument on Section 3 of the Fourteenth Amendment, which prohibits individuals from holding certain offices if they “engaged in insurrection” after taking an oath to support the Constitution.   Preliminarily, I disagree with their understanding of the term “insurrection.”  Under traditional principles of law, an insurrection occurs when ..read more

I have posted my new article, The Modern Militia, to SSRN. Here is the abstract: Twentieth-century legal reforms of the military have obscured the distinction between an “army” and a “militia.” For the Framing generation, the distinction between these two kinds of land forces was sharp. An “army” consisted of regular, professional troops, while the “militia” comprised citizens who would perform temporary military service when needed. The twentieth-century reorganization of the military, however, brought nonprofessional soldiers within the umbrella of the U.S. Armed Forces. As a result, most n ..read more

Unhappy with the Supreme Court’s decision in New York Rifle & Pistol Association v. Bruen, New York and New Jersey have passed laws designed to nullify Bruen’s practical effect.  California and Maryland look set to join them.  Before Bruen, these states denied most residents the ability to publicly carry handguns by making licenses to carry pistols difficult to obtain.  With Bruen taking that option off the table, these states are replicating their general bans by prohibiting private citizens from carrying firearms in long lists of “sensitive places” and on most private prop ..read more

When the Supreme Court required public school desegregation in Brown v. Board of Education, some Southern jurisdictions resisted through legal chicanery.  In Virginia, the Prince Edward County school district “closed” its public schools to avoid integration, while setting up government-funded private schools that were “private” in name only.  The Supreme Court was not amused.  In Griffin v. School Board, the Court saw the closure for what it was, and it ordered Prince Edward County to reopen its schools on an integrated basis. A similar game of legal chicanery is playi ..read more

Historians and legal scholars are presently debating the historical scope of the right to bear arms.  One of the most prominent participants in this debate, Professor Saul Cornell, has a recent post on the Originalism Blog criticizing my work.  But his post does not respond to most of the objections that I have raised against his arguments, so I wanted to explain where I see the debate in the hope that we can move it forward. For my full post, please see The Originalism Blog ..read more

Why the application of military law to half-pay officers in Britain from 1749 to 1751 does not support the perpetual application of military law to retirees of the Armed Forces of the United States In Larrabee, the D.C. Circuit supported its holding that military retirees are subject to status-based military law jurisdiction with references to eighteenth-century historical practice.  The majority’s primary historical example is that of half-pay officers.  According to the majority, the subjugation of half-pay officers to military law in Britain from 1749 to 1751 demonstrates the Fram ..read more

Last Thursday, the Supreme Court held in New York State Rifle & Pistol Association v. Bruen, that New York’s policy of limiting licenses to carry pistols to those who can show “proper cause” is unconstitutional under the Second and Fourteenth Amendments. I will have more to say in the coming days about some of the deeper legal and constitutional issues in the case.  But for now, I want to respond to Governor Kathy Hochul’s June 24 press release that the Supreme Court decision “has no immediate impact on firearm licensing or permitting.”  I think her immediate reaction is off base ..read more

The title of Saul Cornell’s recent blog post—The Myth of Non-enforcement of Gun Laws in Nineteenth Century America—leaves the impression that I will argue that nineteenth-century gun restrictions went unenforced.  I will make no such argument.  In some places, laws regulating the carrying of weapons were enforced strictly.  In others, they were ignored.  Some authorities enforced the laws against blacks but not against whites.  My argument is targeted against a specific set of surety laws that Professor Cornell claims largely prohibited public carry outside the South d ..read more

Last week, airport security screeners detected that Rep. Madison Cawthorn was carrying a loaded 9mm handgun.  Rep. Cawthorn was not the first Member of Congress caught with a gun at the airport.  (For another recent example involving Rep. Ross Spano (R-Fla.) see here.)  Nor was this the first time that Rep. Cawthorn brought a gun through airport security.  Last year, Rep. Cawthorn was caught with another handgun at Asheville Regional Airport. These high-profile congressional incidents are part of a broader trend of airport screeners detecting more guns.  In 2008, TSA c ..read more