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Abstract:
A Chicago Tribune Op-ed from 1995 about democracy, the Second Amendment, and revolution.

guns, revolution, second amendment, militias

Abstract:
This brief essay attempts to account for the paucity of libel litigation relating to weblogs, and to explore ways in which the law of libel may change in response to the different character of weblogs, and new media in general.

Abstract:
This Article surveys case law, history, and scholarship on the Second Amendment. Examining both "individual right" and "collective right" theorists, it synthesizes a so-called "Standard Model" of Second Amendment interpretation, and briefly addresses questions of what weapons might be protected under a more expansive treatment of the Second Amendment than exists today.

second amendment, guns, constitution, firearms

Abstract:
A review essay centering around Clay S. Conrad's Jury Nullification: The Evolution of a Doctrine, and focusing on the largely unexamined - and not always positive - role of prosecutorial discretion. Plus, some suggestions on how to ensure that such discretion is better supervised in the future.

prosecutor jury discretion nullification conrad

Abstract:
In light of the Supreme Court's grant of certiorari in Heller v. District of Columbia, this Essay contains some thoughts inspired by Adam Winkler's "Scrutinizing the Second Amendment," 105 Mich. L. Rev. 683 (2007). Winkler argues, correctly, that judicial acceptance of an individual-rights interpretation of the Second Amendment would not end all firearms regulation. However, Winkler's understanding of what constitutes "reasonable regulation" is excessively broad. In "Guns and Gay Sex," I look at two overlapping lines of Tennessee cases on the right to arms and the right to privacy and conclude that even a "reasonable regulation" model of the right to arms would pose significant barriers to overly intrusive firearms laws.

guns, firearms, second amendment, right to bear arms, aymette, winkler, tennessee, reynolds, keep and bear arms

Abstract:
Proponents of the so-called "collective right" model of the Second Amendment often assert that the right to bear arms exists only on the part of state militias, and not as any sort of individual right. Without addressing the merits of that claim, this Article examines the consequences of taking such a view seriously as a matter of constitutional law, and suggests that those consequences might be quite drastic.

second amendment, states' rights, militia, firearms, guns, gun control

Abstract:
In this Essay, the authors demonstrate that Communitarians and militias actually have more in common than it might at first appear. Summarizing the Communitarian agenda, the authors note that Communitarians speak a language that would be readily understood by the Framers, who saw militias as an important vehicle through which civic virtue could be transmitted.

reynolds, denning, second amendment, right to bear arms

Abstract:
This Essay looks at issues that the Supreme Court can duck - and those that it can't - in deciding the District of Columbia Second Amendment case, D.C. v. Heller. It also looks at political and institutional pressures placed on the Supreme Court by the Heller case.

heller, parker, district of columbia, firearms, guns, second amendment

Abstract:
During a recent policy kerfuffle, Vice President Dick Cheney's office briefly argued that the Vice President is really a legislative official, and hence not subject to some obligations of the Executive branch. Though Cheney's office quickly shifted its argument to less controversial statutory grounds, it turns out that the Vice Presidency's legislative character is, in fact, quite significant. To the extent that the Vice President is a legislative official, however, it is likely that extensive delegation of Presidential authority to the Vice President, of the sort that Vice President Cheney has enjoyed, is probably unconstitutional and certainly unwise. This Essay argues for congressional action to limit the Vice President's role in Executive business.

cheney, bowsher, vice president, separation of powers, legislative, executive

Abstract:
A look at some interesting cases likely to come before the U.S. Supreme Court, including Parker v. District of Columbia, the case in which the D.C. gun ban was overturned.

supreme court, constitutional law, cato, certiorari

Abstract:
The case of United States v. Miller, 307 U.S. 174 (1939), is often cited in gun-control arguments and arguments over the meaning of the Second Amendment. In this Article, we take a close look at Miller, and the arguments made before the Supreme Court. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by the Second Amendment—the holding ascribed to it by most federal
courts since 1939.

miller, firearms, second amendment, aymette, andrews, guns

Abstract:
Part of an Ohio State Law Journal symposium on the Supreme Court's decision finding an individual right to arms in District of Columbia v. Heller, this article offers five takes on what the Heller decision might mean, and how it may play out in lower courts. First, we argue that Heller essentially followed the prevailing national consensus on the meaning of the Second Amendment. Second, we argue that this fact furnishes an important data point for those who argue that the Court usually follows, rather than leads, public opinion on disputed matters; and that, when it invalidates laws, it does so with respect to policy outliers. Third, we speculate on what has already opened up as the second front in gun rights litigation strategy: the incorporation of the Second Amendment through the Fourteenth Amendment. Fourth, we discuss how lower courts will likely treat Heller-will they apply it or, as has happened with other "landmark" Supreme Court cases, ignore it? Finally, we discuss the notable incongruities among the Justices that Heller produced.

second amendment, keep and bear arms, gun control, heller

Abstract:
This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms ownership, a change in legal philosophy that may be as significant as any doctrinal shifts.

Heller, lower courts, firearms, second amendment, Brannon Denning, Glenn Reynolds, keep and bear arms

Abstract:
This brief Essay suggests a structural reform to the judicial nomination and confirmation process, designed to reduce the role of partisanship and special interest politicking. Though this proposal is aimed primarily at preventing logjams when the President and Senate are of different parties, it is likely to be beneficial even where that is not the case, to the extent that the opposition party is prone to filibuster nominees.

judicial, confirmation, bork, senate, judiciary, president

Abstract:
The Supreme Court's recent decision in District of Columbia v. Heller not only established an individual right to gun ownership, but also overturned - by a 9-0 margin - lower-court caselaw based on a "collective right" interpretation of the Second Amendment. This article looks at how Heller is likely to fare in the lower courts, based on experience with other recent Supreme Court decisions, and incorporates new scholarship on decision rules and the so-called "new doctrinalism."

heller, guns, firearms, constitutional law, second amendment, gun control, decision rules

Abstract:
This review of Jack Goldsmith and Tim Wu's Who Controls the Internet? Illusions of a Borderless World, notes that Goldsmith and Wu are correct in concluding that events in recent years undercut cyber-utopian theories of an Internet that is beyond the reach of national sovereignty. It argues, however, that the failure to achieve such goals does not mean that the Internet is unimportant as a source of expanded freedom and power on the part of ordinary people, and suggests that this trend of individual empowerment is likely to continue.

Internet, Goldsmith, Wu, Reynolds, cyberspace, independence

Abstract:
During a recent policy kerfuffle, Vice President Dick Cheney's office briefly argued that the Vice President is really a legislative official, and hence not subject to some obligations of the Executive branch. Though Cheney's office quickly shifted its argument to less controversial statutory grounds, it turns out that the Vice Presidency's legislative character is, in fact, quite significant. To the extent that the Vice President is a legislative official, however, it is likely that extensive delegation of Presidential authority to the Vice President, of the sort that Vice President Cheney has enjoyed, is probably unconstitutional and certainly unwise.

vice president, separation of powers, cheney, bowsher, addington

Abstract:
This article analyzes Robert Bork's philosophy of original understanding jurisprudence in the context of the Supreme Court's decision in Griswold v. Connecticut, and concludes that Bork's theory does not perform as advertised and in fact -- contrary to Bork's representations -- actually supports the outcome reached by the Supreme Court in the Griswold case. It nonetheless concludes that original understanding interpretation has something to offer, if not as much as Bork claims.

reynolds, bork, penumbra, original understanding, griswold, connecticut

Abstract:
This brief essay attempts to account for the paucity of libel litigation relating to weblogs, and to explore ways in which the law of libel may change in response to the different character of weblogs, and new media in general.

libel, blogosphere, weblogs, defamation, blumenthal, reynolds, bloggership

Abstract:
Inspired by Laurence Tribe's "The Curvature of Constitutional Space," this Essay looks at some constitutional theorists' desire for certainty and predictability in law, and notes that such certainty and predictability is much less available even in the hard sciences than is generally believed, with simple and determinate systems sometimes producing wildly unpredictable results. It suggests that predictability of results may be a difficult goal for legal theorists, and offers some thoughts on alternative approaches.

chaos, complexity theory, Laurence Tribe, Robert Bork, constitutional law

Abstract:
Sex is messy and expensive, yet it persists. Evolutionary biologists have spent years wondering why, and many have concluded that one reason for the persistence of sexual reproduction is the superior resistance to parasites that it confers, by constantly reshuffling the target species' genes and characteristics.

Democracy, too, seems messy and expensive, yet it has persisted in the United States for over 200 years. Drawing on the work of Mancur Olson, this Essay suggests that democracy plays a similar anti-parasitic role, by making it harder for government insiders and special interest groups to achieve full symbiosis.

democracy, sex, federalism, parasites, constitution

Abstract:
As an increasing amount of society's wealth is tied up in intangible assets, strong, clear property rights can make a good deal of sense. But it is also possible to have too much of a good thing, and our society is in danger of reaching that point. Recent scholarship suggests as much: a growing body of literature details the expansion of particular doctrines, the rising burden of IP-related transaction costs, or the pressing need for collective *46 institutions to mediate between individual firms and the mushrooming pile of IP rights they must traverse to do business.

In this Essay, we approach one part of this problem at the source. We argue that there are limits on Congress's power to create and extend intellectual property interests. Such limits are "internal" in the sense that they are the result of the very same constitutional provision giving rise to Congress's power in the first place, the Copyright and Patent Clause of the Constitution which grants the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." We argue that the language of the Copyright and Patent Clause may restrict some of Congress's more far-reaching efforts at promoting intellectual property in recent years, particularly in passing ad hoc extensions of copyrights and patents for the benefit of individual companies. We then suggest some approaches that courts might take in evaluating, and perhaps striking down, congressional actions in this area.

patent, copyright, monopoly, extension, commerce, useful arts

Abstract:
This Article outlines the basic characteristics of nanotechnology as it is currently understood and will briefly describe some of the technical - and social - consequences likely to arise as nanotechnology matures. Next, it examines three potential approaches for regulating nanotechnology and the likely consequences of each. The Article concludes with suggestions for further study, as well as a list of "dos" and "don'ts" for regulating nanotechnology.

nanotechnology, biotechnology, reynolds, foresignt

Abstract:
A review of state and federal courts decisions on the scope of state police powers suggests that the shift from the more restrictive sic utere principle to the more open salus populi principle may be reversing, with courts -- at least in cases involving sex and marriage -- taking a much more skeptical view of government objectives and justifications.

police power, sic utere, salus populi, sodomy, gay marriage

Abstract:
The Court's decision in Gonzales v. Raich provides an opportunity to reflect on the Rehnquist Court's apparent run at establishing a judicially-enforceable federalism. Two of the most visible symbols of this effort were the decisions in United States v. Lopez and United States v. Morrison, in which the Court twice struck down acts of Congress as beyond the scope of its commerce power. Now, nearly ten years after Lopez and five years after Morrison, Raich leaves many wondering whether the Court provided an answer to John Nagle's question whether Lopez was destined to be a watershed or a "but see cite." In this article, which will appear in a Lewis & Clark Law Review Symposium on Raich, we offer our tentative, impressionistic answer(s) to the question we pose in the title. In doing so, we move from the practical impact of Raich (i.e., what does this mean for as-applied challenges to which lower courts were becoming receptive?) to more abstract ones (e.g., does Raich represent the third death of federalism, or was the Rehnquist Court's federalism project an illusion?).

Gonzales v. Raich, Raich, Commerce Clause, federalism, Rehnquist, Supreme Court, Lopez, Morrison

Abstract:
The subjects of lunar mining, asteroidal resource extraction, and orbital solar power are again attracting considerable attention, leading to more discussion of space property rights regimes. This article discusses both private-property regimes and centralized regulatory regimes of the sort envisioned by the 1979 Moon Treaty, and also notes that private property regimes may actually be both more productive of wealth and more beneficial for the space environment than centralized regulatory schemes.

space law, property, moon treaty, collective action, Reynolds, Merges

Abstract:
This Essay draws an analogy between interstate catalog taxation cases such as Quill and National Bellas Hess, and the impact of disparate state obscenity laws on Internet porn. It suggests that the burden of complaying with disparate state obscenity standards could be, like the burden on catalog sellers of complying with disparate sales taxes and classifications, a burden on interstate commerce sufficient to trigger dormant commerce clause scrutiny. It also suggests that First Amendment doctrine should take account of similar concerns and chilling effects.

commerce clause, obscenity, cyberporn, Internet, jurisdiction

Abstract:
In recent years, many scholars have suggested that constitutional scholarship pays too much attention to the United States Supreme Court, and too little attention to important constitutional issues that, because of justiciability issues, can never be the subject of Supreme Court opinions. We agree with this critique (which gains extra force from recent arguments over impeachment, Presidential pardons, and the war powers) and suggest a methodology for doing constitutional analysis in areas where the final "opinion" does not come from the Supreme Court.

Borrowing a concept from international law, we argue that scholars and students can profitably study constitutional conflicts that occur outside the courts, and derive from the resolution of those conflicts constitutional principles that can be applied in the future. Not only will this illuminate some of the dark corners of the Constitution, where the Court has shed little or no light, but this approach also publicizes the ways other branches make constitutional law, and can make an evaluation of their work product possible. The incident method thus holds promise both as a tool for constitutional scholarship, and as a valuable pedagogical tool by encouraging students to look beyond the U.S. Reports to the dynamic interaction that occurs when constitutional claims come into conflict outside the context of Supreme Court litigation. In the article, we discuss the narrowness of present constitutional law scholarship and teaching; we describe the "incident" method and its suitability for constitutional law; we describe its methodology; and, finally, we offer an example of the incident method, using the irregular ratification of the Twenty-seventh Amendment, which was ratified in 1992, over two hundred years after James Madison first proposed it. Studying the Twenty-seventh Amendment in this manner sheds light on the constitutional amendment process, whose questions the Supreme Court has deemed nonjusticiable.

Constitution, judicial review, Supreme Court, judicial supremacy, extrajudicial, interpretation, constitutional theory, incidents

Abstract:
The use of penumbral reasoning in cases like Griswold v. Connecticut has received considerable criticism from so-called conservative constitutional commentators, most notably Robert Bork. This essay demonstrates that penumbral reasoning is also widely used by courts in service of results generally regarded as conservative, with much less controversy. Penumbral reasoning, it suggests, is an essential implement in the judicial toolbox, and worthy of more respect, and use, from courts that care about fidelity to constitutional text and structure.

penumbral, constitutional law, Robert Bork, Griswold

Abstract:
State constitutional rights to arms are of considerable interest, both for their own sake and as sources of insight into the meaning of the Federal Constitution's right to keep and bear arms. This article examines the origins and scope of the right to arms provided in the Tennessee Constitution, including Tennessee cases that, interestingly, were cited as authority by the United States Supreme Court in the 1939 case of United States v. Miller, one of the Supreme Court's few cases to address Second Amendment issues in any depth.

Abstract:
In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce authority.

abortion, federalism, commerce clause, lopez, morrison

Abstract:
A followup to "Penumbral Reasoning on the Right", 140 U. Pa. L. Rev. 1333 (1992), this paper notes the increased use, and acceptance, of penumbral reasoning by federal courts in recent years. It suggests that this trend is a positive one, and likely to lead to more, rather than less, fidelity to constitutional text and structure.

penumbral reasoning, Bork, constitutional law, Reynolds, Denning

Abstract:
Basic con law classes are meant to teach students some fundamental legal skills: Considering contentious moral questions from all sides, even those sides for which one has a visceral revulsion. Using the various modalities of interpretive argument -- interpretation focused on text, original meaning, the interplay of political structures, changed circumstances, precedent, and the implications of "fundamental," though unwritten, values within the American ethos. Thinking about how law can check power. Arguing articulately about the clash between solemn constitutional guarantees and eminently worthy countervailing government interests.

The Second Amendment turns out to be a surprisingly useful tool for all these purposes:

1. Second Amendment arguments tend to run counter to traditional political divides, and can thus help teach students to make arguments that they'd normally oppose.

2. The Amendment, unburdened as it is with much Supreme Court baggage, is a particularly good tool for discussing the entire range of interpretive modalities.

3. The Second Amendment was seen by the Framers as a basic part (perhaps the most basic part) of the checks and balances on federal government power.

4. The Amendment particularly starkly presents the clash between textually secured constitutional rights and eminently legitimate government interests is rarely presented more starkly than in the Second Amendment.

5. The Amendment can enrich our understanding of other provisions, such as the Free Speech Clause and the criminal justice provisions.

6. Finally, the Amendment can remind students that constitutional protections needn't be all good: that the Constitution can sometimes be the subject of criticism and not just veneration.

Our goal here is not to demonstrate the True Meaning of the Second Amendment. Rather, it's to show how the debates about the Amendment's possible meanings can enliven and improve the con law class.