Today, before hearing oral argument in Hollingsworth v. Perry, the Supreme Court decided Florida v. Jardines. Splitting 5-4 the Court held that when police brought a drug-sniffing dog onto a homeowner’s front porch it did constitute a “search” for purposes of the Fourth Amendment. Orin may have more to say on the merits. Of immediate interest, however, […]
Archive | March, 2013
Here Comes the Groom
Andrew Sullivan was arguing for same-sex marriage long before it was cool. When he made the case for gay marriage in a 1989 essay in The New Republic, “Here Comes the Groom,” he was attacked from the left by gay activists for selling out the cause of sexual liberation and slavishly acquiescing to bourgeois institutions. How times have […]
Epstein on the Gay Marriage Cases
Richard Epstein has two recent pieces discussing the Hollingsworth and Windsor cases. One for Hoover’s Defining Ideas, the other for Ricochet. In these pieces he notes some of his doubts about the libertarian case against DOMA and Proposition 8, but also suggests that Justice Kennedy — if he is to be consistent with his prior opinions — should […]
Government Knows Best: Shotguns Are Fine, You Don’t Need an AR-15
Good to know our betters know what’s best for us:
Congress Bulls into China’s Shop
Anger over Chinese cyberespionage continues to mount in Congress, and it’s beginning to show in legislation. Not just the bills Congressmen introduce, the ones Congress passes. Demonstrating remarkable bipartisan angst about Chinese hacking and the risks in Chinese high tech equipment, Congress has added tough sanctions to the continuing resolution that funds the federal government […]
House Judiciary Committee New Draft Bill on Cybersecurity is Mostly DOJ’s Proposed Language from 2011
The Hill reports that a draft of language to reform the CFAA is being circulated among House Judiciary Committee members for feedback: A draft cybersecurity bill circulating among House Judiciary Committee members would stiffen a computer hacking law used to bring charges against Internet activist Aaron Swartz. The bill draft would tighten penalties for […]
The Wall Street Journal Editorial Page Rejects The Federalism Argument Against Section Three of the Defense of Marriage Act
The Wall Street Journal editorial page — always a steadfast friend of federalism — is nevertheless unconvinced by the “federalism brief” in the Defense of Marriage Act (DOMA) case. The editors write: [L]iberals and some libertarians argue [that DOMA] is an offense to federalism. We disagree …. In the Constitution’s system of dual federal-state sovereignty, […]
Knives and the Second Amendment
By David Kopel on March 25, 2013 12:43 pm in Constitutional Law, Criminal Law, Defense of Property, Non-Firearms Arms, Self-Defense
That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract: This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme […]
Introducing My New Book, Accelerating Democracy
Relentless and accelerating technological change is the fundamental fact of our time. Your smartphone today is more than a thousand times powerful and a million times less expensive than all the computers at MIT in 1965. This exponential increase in computational power is continuing. It represents both a boon and a danger to society. Such […]
Federalism and Proposition 8
Federalism principles may weigh against Section 3 of the Defense of Marriage Act (DOMA), but what about Proposition 8? Reason.com has just posted an exchange between me and Ilya Shapiro of the Cato Institute on this question. Cato’s Ilya S. (not to be confused with our Ilya S.) argues that federalism has nothing to do […]
Supreme Court to Consider Michigan Affirmative Action Ban
Among the orders issued by the Supreme Court this morning was a grant of certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action , in which the question is whether a state ballot initiative prohibiting the consideration of race in state university admissions violates the Equal Protection Clause. The case arises from a lawsuit […]
From Whom or What is DOMA Defending Traditional Marriage?
Question: From whom or what is Section 3 of DOMA defending traditional marriage? Honest answer: From states who have recognized same sex marriage. See the federalism problem yet?
More on DOMA and federalism
I have some questions for Jonathan (or anyone else), along the lines of my previous comments on DOMA and federalism: 1. Suppose DOMA defined “channels” to mean “navigable-in-fact waterways, as well as all interstate and intrastate waters including (but not limited to) intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, […]
Why Does Federalism Matter in an Equal Protection Case?
The question presented in United States v. Windsor is whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection. Why, then, are some of us talking about federalism? It’s a fair question. In an equal protection case, courts are called upon to weigh the weight of the […]
Can Statutory Definitions Be Unconstitutional on Federalism Grounds?
In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word] only for purposes of federal law.” According to Nick. such a definition can only be unconstitutional if it offends some substantive constraint on government power, […]