Author Archive | Eugene Volokh

Profs. John McGinnis & Michael Rappaport Guest-Blogging This Coming Week

I’m delighted to report that Profs. John McGinnis & Michael Rappaport will be guest-blogging this coming week about their new book, Originalism and the Good Constitution. Both are among the most prominent originalist scholars in America, and their book sounds extremely interesting; here is a summary from the publisher:

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities — both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

I very much look forward to the visit! [...]

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Wisconsin Lawyers Interested in Being Pro Bono Local Counsel for an Interesting First Amendment Criminal Harassment Case?

A student and I will be filing a brief in an interesting Wisconsin First Amendment/criminal harassment case, and we need pro bono local counsel, for help with filing and for review for compliance with Wisconsin formatting details. (UCLA will pay any filing and printing fees.) Might any of you folks be interested? If so, please drop me an e-mail at volokh at and I’ll give you more details. [...]

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New Florida Self-Defense Case

It’s the Gabriel Mobley case, State v. Mobley (Fla. Ct. App. Jan. 2, 2014) (2-1 vote). Here’s the summary from the end of the majority opinion:

The record — as corroborated by a video of the events — is that (1) Mobley found himself in the middle of a violent, unprovoked attack on a companion who was standing right next to him, by one of two men who earlier had engaged in an altercation to which he was a witness; (2) after the initial violent attack on Mobley’s friend, the attacker immediately turned his attention to Mobley; (3) less than four seconds after that, the first attacker was joined by the second man involved in the altercation inside the restaurant; and (4) when the second man reached under his shirt after rushing up to join his companion who had not abandoned the field, Mobley believed the second man was reaching for a weapon to continue the attack. With these facts at hand, and with Mobley’s knowledge of these two assailants, the issue for determination was not whether Mobley knew a weapon was possible or whether he actually saw one, but whether a reasonably prudent person in those same circumstances and with the same knowledge would have used the force Mobley used….

It may have been more prudent for Mobley and Chico to skitter to their cars and hightail it out of there when they had the chance; however, as even the State concedes and the court below recognized, Mobley and Chico had every right to be where they were, doing what they were doing and they did nothing to precipitate this violent attack. The only relevant inquiry was whether, given the totality of the circumstances leading up to the attack, the appearance of danger was so real that a

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Wrongful Convictions and Proof Beyond a Reasonable Doubt

Montgomery v. Commonwealth (Va. Ct. App. Dec. 20, 2013) sets aside a man’s rape conviction, because the supposed victim had come forward (several years after the conviction) to say she made up the story and her admission led her to be convicted of perjury. An excerpt:

In October of 2007, Elizabeth P. Coast, then seventeen, reported that when she was ten years old a neighborhood boy named “Jon” sexually assaulted her while the two were alone in her grandmother’s backyard…. Coast identified Montgomery in a photo lineup using his Hampton High School yearbook photo….

On June 23, 2008, … [the trial court] tried and convicted Montgomery in a one-day bench trial for the assault of Coast. Coast testified under oath that Montgomery had sexually assaulted her in 2000. She described the alleged assault in graphic detail. She said that she did not tell anyone what happened at the time of the assault because she thought her parents “would get mad” and she was “really embarrassed.” She explained that she decided to come forward seven years later because she thought she saw Montgomery at Wal-Mart….

Besides Coast, no other witnesses to the incident testified at Montgomery’s trial. Neither was any corroborating physical evidence that an assault occurred ever presented. The trial judge categorized this case as a “word against word situation.” In reaching his verdict, the trial judge concluded that Coast was more credible then Montgomery because she had “no motive whatsoever” to lie. The trial court then found Montgomery guilty of forcible sodomy, aggravated sexual battery, and object sexual penetration. On April 10, 2009, the trial judge sentenced Montgomery to 45 years in prison, with 37 years and 6 months suspended….

On November 1, 2012, Coast voluntarily made a videotaped statement at the Hampton Police Department. After consulting with counsel

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Do Pistol Grips Make Semi-Automatic Rifles More Dangerous, Because They “Aid Shooters when ‘Spray Firing’ from the Hip”?

Laws that ban so-called “assault weapons” often define them with reference to various features, such as a rifle’s having a bayonet mount or “a pistol grip that protrudes conspicuously beneath the action of the weapon” (to quote the New York assault weapon ban upheld by N.Y. State Rifle & Pistol Ass’n v. Cuomo (W.D.N.Y. Dec. 31, 2013)). One reason given for focusing on rifles with such pistol grips is that, in the words of the court, this “feature[] aid shooters when ‘spray firing’ from the hip.”

I’m not an expert on firearms tactics, but I’m very skeptical of this. Here is what I understand to be the sensible way of using such a pistol grip (whether you’re a law-abiding citizen or a criminal):

You’re holding on to the pistol grip with the same hand that’s ready to pull the trigger, but you’re aiming: you’re looking down the barrel of the rifle, because you want to hit what you’re shooting at.

Now here is what I understand to be — more or less — people’s image of “‘spray firing’ from the hip”:

The trouble is that, because you’re not actually sighting down the barrel of the gun, you’re going to be extremely inaccurate (unless you’re Raylan Givens). And while such lack of accuracy may matter less if you’re shooting a fully automatic (not that I recommend shooting this way even with a fully automatic), it will make your shooting much less effective if you’re shooting a semi-automatic — again, whether you’re a law-abiding citizen or a criminal.

People “spray firing” a semi-automatic from the hip are thus making themselves less dangerous to the people they’re shooting at (compared to normal firing when one is actually sighting down the barrel). Nor are they making it easier to fire [...]

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Double Check, Where the Moved Piece Is Not One of the Checking Pieces

An interesting thing happened yesterday in a game between my son and my father: a double check, in which the moved piece was not one of the checking pieces. (In a usual double check, a piece moves, placing the king in check but also discovering a check by another piece. To quote a formulation on the U.S. Chess Federation Site, “Double check is a more dangerous form of a discovered check where not only the hidden piece attacks the king, but also the piece that moves.”) How did this happen? Everyone was following the normal rules of chess.

Note that a move that promotes a pawn, thus creating a check from the promoted piece and a discovered check because of the pawn move, would not qualify as an answer, since the moved piece (albeit not the same one that started the move) is one of the checking pieces. [...]

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Drinking the Kool-Aid

Today’s Abidor v. Napolitano (E.D.N.Y. Dec. 31, 2013), which deals with border searches of electronic equipment, includes the following passage:

Plaintiffs try to bolster their claim for standing in several ways. The NACDL [National Association of Criminal Defense Lawyers] alleges that its members routinely travel abroad to “collaborate with foreign colleagues and/or as part of their representation of their clients.” They almost always travel with electronic devices because those devices “are necessary to take notes, record interviews, perform legal research, draft legal documents, retrieve case files, and communicate.” The NACDL goes on to allege that because its “members have an ethical duty to safeguard attorney-client and other privileged information, they must spend time and money to mitigate the harm that future searches will cause.” Similarly, the NPPA [National Press Photographers Association] argue that the challenged policies “undermine NPPA members’ ability to guarantee confidentiality to the sources they communicate with abroad.” Consequently, “[t]he risk [their] sources’ identities will be revealed to border agents … will lead some sources who otherwise would have shared information or been recorded, photographed, or videotaped to decline to do so.” …

[But] it is difficult to understand how a threshold requirement of reasonable suspicion [which the plaintiffs claim is constitutionally required] significantly alleviates the alleged harm that plaintiffs fear. Reasonable suspicion is a minimal threshold standard for conducting a search…. Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources, or to protect privileged information.

I can’t speak to the Fourth Amendment analysis, which I leave to Orin and others. But my quick check suggests that this is the first use of the idiom “drinking the Kool-Aid” in a federal judicial opinion at the judge’s instance (rather than just [...]

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New York 7-Round Limit Struck Down on Second Amendment Grounds, Assault Weapons Ban and >10-Round Magazine Ban Upheld

The decision, by a federal trial court, is today’s N.Y. State Rifle & Pistol Ass’n v. Cuomo (W.D.N.Y. Dec. 31, 2013). The court’s conclusion:

[T]his Court finds that the challenged provisions of the SAFE Act — including the Act’s definition and regulation of assault weapons and its ban on large-capacity magazines — further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. But, the seven-round limit fails the relevant test because the purported link between the ban and the State’s interest is tenuous, strained, and unsupported in the record.

Further, three aspects of the law — the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) — must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited.

Finally, because the SAFE Act’s requirement that all ammunition sales be conducted in-person does not unduly burden interstate commerce, it does not violate the Commerce Clause.

Here’s the heart of the analysis of the 7-round limit:

The SAFE Act adds New York Penal Law § 265.00(37), which makes it “unlawful for a person to knowingly possess an ammunition feeding device where such device contains more than seven rounds of ammunition.” Unlike the restrictions on assault weapons and large- capacity magazines, the seven-round limit cannot survive intermediate scrutiny.

It stretches the bounds of this Court’s deference to the predictive judgments of the legislature to suppose that those intent on doing harm (whom, of course, the Act is aimed to stop) will load their weapon with only the permitted seven rounds. In this sense, the provision is not “substantially

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O Hear the Angel Voices

An interesting case, In re Stephen O. (Alaska Dec. 17, 2013), dealing with the recurring question of how religious claims can be relevant to mental commitment proceedings. From the three-Justice majority (some paragraph breaks added):

Shortly after Christmas 2009 Stephen O. experienced what he believed to be a religious conversion and, as he described it, “got [his] relationship back” with Jesus. In the weeks leading up to the holiday that year, Stephen had been “a little nervous” because his children were about to depart for a visit to their mother in Seattle for their Christmas vacation, the first Christmas he had spent without the children in a decade. Stephen and his wife of eleven years had separated in May 2009, when she left their home in Haines to live with her mother….

Stephen testified that when the children returned from their visit shortly after Christmas, he began to hear the voice of Jesus speaking to him, telling Stephen that his sins were forgiven and he should “get on a path of repentance.” According to Stephen, Jesus told him to go to church and, in particular, to talk to a neighbor across the street who attended a Pentecostal church. Stephen visited and prayed with the neighbor, who put Stephen in touch with his pastor. The pastor invited Stephen to attend his church.

Around this same time, Stephen’s father became concerned about him after Stephen’s 12–year–old daughter reported that Stephen’s behavior was “creeping her out.” Stephen had awakened his daughter at night and talked to her about Jesus, going to church, and following “a path of repentance.”

Stephen’s father and daughter were alarmed because they believed Stephen’s behavior was similar to behavior he had exhibited about six years earlier, in 2004, when he heard voices that led him to jump off

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Somalia Outlaws Christmas Celebrations

So report GhanaWeb and SomaliCurrent:

A directive released on Tuesday by the Ministry of Justice and Religious Affairs stated that no Christian festivities could be held in Somalia….

“We alert fellow Muslims in Somalia that some festivities to mark Christian Days will take place around the world in this week,” said [the Director of the Religious Matters] during [a] press conference [to announce the ban], adding: “It is prohibited to celebrate those days in this country.”

[The Director General of the Ministry of Justice and Religious Affairs], on his part, stated that all security and law enforcement agencies had been instructed to counter any such celebrations….

The officials did not say anything on whether non-Muslim foreign workers or residents could celebrate or not.

It is the first time that a Somali government bans the celebrations since the last central government collapsed in 1991.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. [...]

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The Crime of “Annoy[ing]” Local Governments Through “Offensively Repetitious” Threats of Litigation

From Tennessee House Bill 540, which has been recommended for passage by the House Local Government Committee:

A person commits an offense who intentionally, without or prior to the filing of a [lawsuit] … communicates, in writing or by electronic communication, with a local government unit or local public servant in an offensively repetitious manner with the intent to influence, persuade, or induce the local government unit or local public servant to terminate, halt or cease a particular policy, practice, action or custom and the person:

(1) (A) Intends the communication to be a threat of initiating legal action against the local government unit or local public servant challenging the particular policy, practice, action or custom, and a reasonable person would perceive the communication to be a threat of initiating legal action; or

(B) Makes a threat within the communication to initiate legal action against the local government unit or local public servant challenging the policy, practice, action or custom; and

(2) Makes the communication knowing that it will alarm or annoy the local government unit or local public servant.

The proposal was apparently prompted by a desire to restrict Establishment Clause challenges — that’s what the rest of the bill is about — but this section would cover all threats of litigation.

The proposal is clearly an unconstitutional content-based restriction on freedom of speech to government officials, and on the right to petition the government for redress of grievances. Petitions need not be just “please be so kind as,” but may also include “or else we’ll petition another branch of government — the courts — to vindicate our rights.” And neither the Free Speech Clause or Petition Clause excludes speech that’s annoying or said “in an offensively repetitious manner.” Narrowly crafted restrictions on certain manners of communications, [...]

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