The Wall Street Journal reports: Justice Anthony Kennedy got into a messy situation this month after a widely circulated report that his office made a school newspaper get permission before running an article about the justice. It turns out the incident at New York’s Dalton School wasn’t the only such case…. In an interview with […]
Archive | November, 2009
Kids These Days
A commenter writes: Well it could be worse. I hazard that in 50 years the sex sensitivities of the colloquial speaker will have caused the formal replacement of the generic singular pronoun (he) with the plural pronoun (they), which is safely without gender. Already constructions like these are ubiquitous among high-school age writers, and sanctioned […]
Could an Individual Mandate Violate Article I, Section 9?
Most discussions about the constitutionality of an individual mandate in health care reform proposals have focused on whether such a mandate could be justified under the federal government’s enumerated powers in Article I, section 8. (See, e.g., these VC posts.) Some (including me) have opined that, under existing case law, an individual mandate would probably […]
“Otherwise Incorrect”
A commenter writes: I’ve never liked the cyclic reasoning of the paradigm that if an otherwise incorrect use of grammar or spelling becomes widespread, it is declared to be henceforth correct. If you want to use “they” in this context, then rephrase it as “I would like to thank the editors at Attorney.org for their […]
Pornography Route 66 Film Doesn’t Infringe Trademark in Route 66 TV Program
The case is Roxbury Entertainment v. Penthouse Media Group, Inc. (C.D. Cal. Nov. 9): It is well established that films are entitled to First Amendment protections. … [A] Lanham Act [false or misleading designation of origin] claim asserted against the creator of an expressive work can succeed only if the “public interest in avoiding consumer […]
“The Particular Combination of Sloth, Fanaticism, Inanity and Technical Genius
alleged here seems to us to move [plaintiff’s] allegations into the realm of claims ‘flimsier than ‘doubtful or questionable ‘ — … ‘essentially fictitious,” not realistically distinguishable from allegations of ‘little green men’ of the sort that Justice Souter recognized in Iqbal as properly dismissed on the pleadings.” From Tooley v. Napolitano, decided yesterday by […]
Public Opinion and Free Speech
It seems pretty clear that the public opinion trends concerning freedom of expression are pointing in a more libertarian direction. We can see that in responses to questions regarding flag burning, hate speech, and indecent speech. The State of the First Amendment (SOFA) Survey has been asking questions related to these issues for a decade, […]
Predicting Kerr
I predict that, every time I or another VC blogger posts with closed comments on a subject that Orin finds interesting, he will post something short with open comments soon thereafter. We will see how this prediction holds in the future.
Why Has Holder Decided to Try Khalid Sheikh Mohammed in a Civilian Court?
The answer is not “the rule of law.” According to the WSJ, Holder said: The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions. So the U.S. government has the option to try suspected members […]
Seventh Circuit Vacates Conviction for Gun Possession By a Misdemeanant Convicted of Domestic Violence, Remands for Further Proceedings
From U.S. v. Skoien, decided today: A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9)…. Skoien pleaded guilty but reserved his right to appeal [on Second Amendment grounds] the district court’s denial of his motion to […]
Open Comment Thread on McDonald
I had a feeling my post predicting the votes on the Privileges and Immunity argument in McDonald v. City of Chicago might draw a disapproving response from Randy, and I see it did. Based on past experience, I gather Randy’s questions directed to me are rhetorical questions designed to defend Randy’s view of the Constitution, […]
Indiana Court of Appeals Rejects Claim That “Because His Father Was a Citizen of the United Kingdom, President Obama Is [Not a Natural Born Citizen and Therefore] Constitutionally Ineligible to Assume the Office of the President”
The decision is Ankeny v. Governor, handed down last Thursday. The opinion is pretty detailed, and is the only substantive opinion I know of in a case challenging President Obama’s eligibility (since the other cases, including the ones that assert that he wasn’t born within the U.S., have been rejected on procedural grounds, such as […]
“Thanks to [Organization] for Their Help” — or Is It “for Its Help”?
A commenter, commenting on my “Thanks to Attorney.org for its kind words about our blog,” asks: Unless one is British, would not the proper response be “Thanks to Attorney.org for its kind words about our blog, which it labeled its Blog of the Year”? Or did I miss a revolution with respect to it (its) […]
Predicting McDonald
By Randy Barnett on November 18, 2009 9:52 am in Civil Rights, Constitutional History, Constitutional Theory, Guns, Originalism, Property Rights, Supreme Court, Uncategorized
Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge […]
How I’d Approach the Privileges or Immunities Issue in McDonald
Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, […]