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Abstract:
To commemorate the fortieth anniversary of Jones, this piece does three things. First, it explains how Congress' exercise of Thirteenth Amendment power to govern private economic relationships during Reconstruction gave important, but unacknowledged, intellectual credence to the antitrust movements of the late nineteenth and early twentieth centuries. Second, it explores the human story behind Jones, tracking the narrative of the Joneses, their counsel, the judges, and their lives after the decision. Finally, it explains how Jones' recognition of the interrelationship between public and private coercion can help scholars, lawmakers, and jurists define the contours of Thirteenth Amendment power.

economics, antitrust, discrimination, racial, Jones, Mayer, Civil Rights Act of 1866, law and economics, Blackmun, Stewart, section 1982, section 1981, section 1983, civil rights

Abstract:
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for “future evaluation.” This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment — a robust right in the home, subject to near-plenary restriction by elected government everywhere else. This Article’s proposal to treat guns like smut is sure to stir controversy. But it is grounded in solid methods of constitutional analysis. The Court in Heller sent unmistakable signals that the First and Second Amendments are cousins and may be subject to similar limitations. As Justice Scalia noted, the First Amendment excludes from its protection certain categories of speech: “obscenity, libel, and disclosure of state secrets.” The Second Amendment may be “no different,” and almost certainly excludes from its protection certain categories of “bearing” and certain categories of “arms.” Moreover, the “home-bound” approach to the Second Amendment rationalizes the disparate norms that animate the Court’s privacy jurisprudence. It situates the Second Amendment within tradition and doctrine that accord constitutional weight to a spatial and conceptual distinction between the home and the public sphere. Finally, this proposal has the benefit of simplicity: The Court has already marked boundaries for an individual right to adult obscenity in the home. Those boundaries are surprisingly applicable to the individual right to bear arms, and far easier to administer. While this proposal will not resolve all issues of Second Amendment scope, its prudential and practical merits deserve serious consideration as part of post-Heller discourse on the Second Amendment.

Heller, Second Amendment, obscenity, pornography, First Amendment, Fourth Amendment, home, constitution, jurisprudence, textualism, originialism, standards of review, guns, firearms

Abstract:
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a testament to the law of unintended consequences, a cautionary tale about state experimentalism, and comment on the aspiration and limits of neutral principles of adjudication.

defense of marriage, same-sex, gay, lesbian, homosexual, gender, constitutional, state action, contract, equal protection, Romer, Lawrence, Shelley, Kraemer, federalism, neutral principles