I represent 55 elected Colorado Sheriffs, plus one retired police officer, in a federal civil rights lawsuit that has been filed against two bills passed by the state legislature last March. Information about the case, including major case filings, is available at ColoradoGunCase.org. I am writing this post to correct a serious and inaccurate accusation […]
Author Archive | David Kopel
The Recess Appointments clause: Amicus brief on original meaning based on State practices
By David Kopel on December 15, 2013 7:19 pm in Constitutional History, Constitutional Law, Originalism, Presidency
As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early […]
Brown v. Buhman isn’t so complicated
By David Kopel on December 14, 2013 4:35 am in Criminal Law, Fourteenth Amendment, Gay Rights, Privacy, Religion and the Law, Religious Freedom, Sexual Conduct Restrictions, Sexual Orientation, Supreme Court, Television
To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective […]
Evolving Christian Attitudes Towards Personal and National Self-Defense
By David Kopel on November 26, 2013 6:05 pm in Civil Rights, Communism, Equal Protection, Guns, McDonald v. City of Chicago, Politics, Popular Culture, Religion, Self-Defense
Issue number 5 of this year’s Connecticut Law Review is an excellent symposium on firearms law, policy, and culture. The lead article is from Nicholas Johnson, of Fordham: Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy. Johnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long […]
Knives and the Second Amendment
By David Kopel on November 23, 2013 6:14 pm in Constitutional History, Constitutional Law, Criminal Law, History, Militia, Non-Firearms Arms, Right to carry, Self-Defense
The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives. Now at the printer is the first […]
Arthur Schlesinger and the Kennedy Assassination
The events of November 1963 and their aftermath are described in Chapter 9 of my undergraduate thesis The Highbrow in American Politics: Arthur M. Schlesinger Jr. and the Role of the Intellectual in Politics. In brief: Schlesinger, John Kenneth Galbraith, and most of the rest of the White House immediately leaped to the conclusion that “the radical […]
Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?
By David Kopel on October 21, 2013 10:55 pm in Anonymity, Constitutional History, Constitutional Law, First Amendment, Originalism, Restrictions on Campaign Contrbs. and Expenses
My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right […]
The Strange Career of Mississippi’s Bans on Gun Carrying
A few weeks ago, the Mississippi Supreme Court took another step towards dismantling the state’s legacy of Jim Crow gun control laws. If you had read the Mississippi statutes from that era, they would have seemed quite ordinary in an American context: 1. There was no laws against the open carrying of firearms in most […]
The Colorado Recalls Explained
By David Kopel on September 11, 2013 3:16 am in "Bullying" Bans, Constitutional Law, Fifth Amendment, Fourteenth Amendment, Guns, Libertarianism, Popular Constitutionalism
Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law. Former State Senate President John Morse represented Colorado Springs, […]
Origins of the English Militia
David Hume’s’s The History of England (1778) tells the story of the Danish conquest of England. (vol. 1, chapter 2 “The Anglo-Saxons”). After a series of wars, the Danes drove King Alfred off the throne, forcing him to flee incognito, disguised as a peasant. Alfred then retired into the center of a bog, formed by the […]
Intermediate Scrutiny bleg
What law review articles, treatises, etc., do readers recommend for someone who wants to understand the nuances of intermediate scrutiny? Not theoretical articles about whether I.S. is a good or bad idea; rather, examination of how it works in practice, include the sub-rules.
The Fiduciary Foundations of Federal Equal Protection
By David Kopel on August 4, 2013 3:46 pm in Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Education, Equal Protection, Fifth Amendment, Fourteenth Amendment, Originalism, Supreme Court
Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of […]
NY appellate court rules 5-0 against Bloomberg soda ban
By David Kopel on July 30, 2013 2:02 pm in "Bullying" Bans, Administrative Law, Constitutional Law, Executive Branch, Food and Drink, Growth of Government, Health Care, New Class, Paternalism, Separation of Powers
The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic […]
Blegs on firearms training for people with disabilities
Are you a firearms trainer with extensive experience in teaching people who have disabilities? Or do you know someone who is? If so please contact me at david@i2i.org. I would like to learn from your expertise, for a case which involves the intersection of the Second Amendment and the Americans with Disabilities Act.
Ancient Hebrew Militia Law
That’s the title of a short article by me, just published in the Denver University Law Review Online. The militia politics of ancient Israel are covered in an article I wrote several years ago for Liberty magazine: ” To Your Tents, O Israel!” Both articles discuss the influence of the Israel’s history on the American Founders.