Eugene Volokh's Blog, page 111

[Orin S. Kerr] The Fourth Circuit's Geofencing Case Ends Not With a Bang But A Whimper

[Fifteen judges produce eight separate opinions—but no view gets a majority.]

Earlier this week, the Fourth Circuit handed down its en banc ruling in the closely-watched geofence warrant case that I have blogged about here at Volokh, United States v. Chatrie. 

The majority opinion is a very quick read.  It consists entirely of the following: "PER CURIAM: The judgment of the district court is AFFIRMED."   After that comes 124 pages of separate opinions, consisting of seven concurrences and one dissent.

Here's a summary of the eight separate opinions, followed by some quick thoughts. I'll assume the reader is familiar with the case from my 2022 post, and just jump into the opinions:

Judge Diaz (solo opinion):  The good-faith exception applies, so we should not reach the merits of how the Fourth Amendment applies to geofencing. These are hard issues and judicial modesty demands we not reach out and try to address other issues. The government should win on the good-faith exception alone.

Judge Wilkinson, joined by Judges Niemeyer, King, Agee, and Richardson (five judges total): Geofencing is not a search.  The third-party doctrine is still good law, and users voluntarily disclose their location to Google.  The government should win on the merits.

Judge Niemeyer (solo opinion):  No search occurred here because the government was essentially just following the tracks left by users, which is not a search.  Also, the good-faith exception applies.

Judge King (solo opinion): The good-faith exception applies.

Judge Wynn, joined by Judges Thacker, Harris, Benjamin, Berner, and mostly Gregory (six judges total): Geofencing is a Fourth Amendment search. We understand Carpenter v. United States to be a transformative decision that replaced the third-party doctrine and announced a new multi-factor test for what is a Fourth Amendment search. We apply the factors and we conclude that geofencing is a search.  Still, the good faith exception applies, so the government wins.

Judge Richardson, with Judges Wilkinson, Niemeyer, King, Agree, Quattlebaum and Rushing (seven judges total):  The government wins under the third-party doctrine, which dictates that there was no search here. Carpenter limited the third-party doctrine, but under Carpenter the rationale of the third-party doctrine applies because the information is limited and was voluntarily disclosed when users opted in to the location history feature.

Judge Heytens, joined by Judges Harris and Berner (three judges total):  Whether or not a search occurred, the good-faith exception applies so the evidence is admissible.

Judge Berner, joined by Judges Gregory, Wynn, Thacker, Benjamin, and in part Heytens (six judges total):  No search occurs when the government gets geofencing information in anonymized form.  So the initial stage of geofence warrants is not a search.  However, when the anonymized data is later linked to a particular individual, a search occurs and a warrant is needed.  We disagree with the Fifth Circuit that geofence warrants are categorically unconstitutional, but we think a warrant individualized to each person is needed at the de-anonymization stage to reveal each person's identity, one warrant per person, which was lacking here.

Judge Gregory, dissenting (one judge total):  The geofence warrant in this case was obviously unconstitutional, so the good-faith exception should not apply.

A few thoughts below:

First, if I'm counting the votes correctly, there is a 7-7 split on whether a search occurred—with the 15th judge, Judge Diaz, not expressing a view either way.  So there is no majority opinion, but instead just a crazy amount of uncertainty. What is the law now, after all this?  I haven't a clue.

Second, the contrasting search rulings diverge based on dramatically different interpretations of Carpenter—ones that fall largely along ideological lines.  For the most part, the GOP-appointed judges see Carpenter as relatively narrow and rule-based, with specific elements you can look to to determine if a search occurred. The third-party doctrine lives unless the specific concerns of Carpenter apply. (I argue in my new book that this view is correct, btw—more on that someday.)  On the other hand, for the most part, the Democratically-appointed judges see Carpenter as a transformative ruling that imposes a new multi-factor test for searches that replaces previous doctrine.  It also comes with a possible new theory of the stage of Fourth Amendment searches.  These are just two fundamentally different ways to read Carpenter.

Third, if I'm counting the votes correctly, five judges expressed a clear view on whether the Fifth Circuit's ruling that geofence warrants are categorically unconstitutional (assuming a search) is correct—with those five judges all agreeing that it was not. Indeed, the underpinning of the Fifth Circuit's ruling is labeled "nonsensical." (p.114)  Another seven judges ruled there was no search in the first place and strongly hint that they disagree with the Fifth Circuit on the constitutionality of geofence warrants, too (see, for example, p.80).

Finally, I flagged back in November that the good-faith exception might mean there was no ultimate ruling on the merits.  As I wrote then:

Although the theoretical basis of the litigation [in Chatrie] is possible suppression of evidence—the defendants have filed motions to suppress—all the uncertainty about the law doesn't mean there's real uncertainty as to who will win. The reason is the good-faith exception to the exclusionary rule, which as a practical matter reserves suppression of evidence for particular violations—typically, ones that were clear ex ante.  The scope of the good-faith exception to the exclusionary rule is uncertain, but the exception is at its strongest when courts resolve novel issues of Fourth Amendment law.  Even with the panel ruling in Smith, the Fifth Circuit's remarkable decision saying that all geofence warrants are unconstitutional, the government won in the end on the good-faith exception.

This echoes a common pattern these days in caselaw on the Fourth Amendment and digital evidence. As a practical matter, litigation over novel questions of Fourth Amendment law provides opportunities for courts, if they want, to issue optional advisory opinions on the law going forward.  In some cases, courts they take the option and issue an opinion that has holdings to guide future courts.  But quite often, courts decline to hand down rulings on the law and say, well, whatever the constitution means, there's no remedy under the good-faith exception. This is what has happened in a bunch of the major cases I have blogged about here, such as the Second Circuit's ruling in United States v. Ganias, and the Fifth Circuit's ruling in United States v. Morton. Lots of discussion of critically important questions, and then, ultimately, no answer.

Unfortunately, the good-faith exception prevented a majority ruling on the search question here, too.   We have no ruling on whether there was a search—and if a search occurred, if it was reasonable—because litigation on novel Fourth Amendment questions is essentially always advisory.

It's a very weird system.  Courts are free to set out what the law is in the future, if they think it appropriate to decide what the law is in a particular case.  But everyone knows that any optional merits ruling is separate from who will win the litigation.  This often makes it difficult to get defense counsel to file challenges in the first place, as defense lawyers equate "novel issue" with "lose on the good-faith exception." And when defense counsel do file a motion to suppress, it means that the end result of years of litigation is often no ruling at all.

I've argued that this is a really bad way to do Fourth Amendment remedies. But it seems to be what the Justices of the Supreme Court want, so we seem to be stuck with it.

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[Eugene Volokh] First Amendment Injunction Against Administration in Perkins Coie Law Firm Case

[The result generally strikes me as correct; but this is surely not the last word on the matter, since I expect a prompt appeal to the D.C. Circuit.]

A very short excerpt from a 102-page opinion today by Judge Beryl Howell (D.D.C.) in Perkins Coie LLP v. U.S. Department of Justice:

Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with "tolerance, not coercion." 303 Creative LLC v. Elenis (2023). The Supreme Court has long made clear that "no official, high or petty, can prescribe what shall be orthodox in politics … or other matters of opinion." W. Va. State Bd. of Educ. v. Barnette (1943). Simply put, government officials "cannot … use the power of the State to punish or suppress disfavored expression." NRA v. Vullo (2024).

That, however, is exactly what is happening here. For this reason, and those explained more fully below, Executive Order 14230 is unconstitutional, and the findings and instructions to Executive Branch agencies issued in its Sections 1 through 5 cannot be allowed to stand….

[P]laintiff is entitled to summary judgment on the following: (1) the claims of unconstitutional retaliation and viewpoint discrimination, in violation of the First  Amendment …; (2) the claim of unconstitutional compelled disclosure, in violation of the First Amendment …; (3) the claim of unconstitutional denial of equal protection of the law, in violation of the Fifth Amendment …; (4) the claims that EO 14230 violates the Fifth and Sixth Amendment right to counsel of plaintiff's clients …; (5) the claim of unconstitutional denial of due process of the law, in violation of the Fifth Amendment …; and (6) the claim that EO 14230 is unconstitutionally vague, in violation of the Fifth Amendment ….

{Plaintiff additionally claims … that Sections 1, 2(b), 3, and 5 of EO 14230 violate the Constitution's inherent separation of powers through the "Unconstitutional Exercise of Judicial Authority." Since resolution of plaintiff's claims alleging violations of the First, Fifth, and Sixth Amendments entitles plaintiff to summary judgment and the full relief sought in this case, … the separation of powers claim asserted in Count I need not be considered.} …

Note that I was one of the many signers of a law professors' amicus brief in the case, generally supporting Perkins Coie's position.

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[Josh Blackman] SG Files Emergency Application in DOGE Case, CJ Roberts Immediately Calls for Response in 10 Days

[The Chief moved quickly, but extended the review period out.]

Today, May 2, the Solicitor General asked the Supreme Court for an emergency stay in . This case was brought to stop DOGE employees from accessing SSA data.

Immediately after the application was filed, the Chief Justice called for a response due on May 12.

Response to application (24A1063) requested by The Chief Justice, due by 4 p.m. (EDT) on May 12, 2025.

Here, Roberts continues his trend by calling for a response immediately. but Roberts apparently does not think this case is urgent. He did not grant even a temporary administrative stay, and granted the Respondents a leisurely ten days to respond.

Yesterday, I tracked the average length of time for shadow docket responses. This will be the second-longest period, only behind Justice Jackson's timeline in the Maine case. I wonder if Roberts too is signaling that the shadow docket should slow down.

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[Ilya Somin] How Trump's Tariffs Threaten the Rule of Law

[By giving one man the power to impose massive tariffs anytime he wants, Trump's policy undermines the predictability and impartiality that the rule of law requires.]

(NA)

Much has been written (including by me) about how Trump's massive new tariffs will severely damage the US economy, and why they are illegal for a variety of different reasons. But more attention should be paid to how they also threaten the rule of law.

The rule of law is a somewhat fuzzy concept that can mean different things to different people. It's important not to confuse it with justice. But one standard component of it that a wide range of people should be able to agree on is that important legal rules should be clearly stated in advance, and not easily changeable at any one person's whim. That is what differentiates the rule of law from "the rule of men." In addition, they cannot be easily manipulated to reward the ruler's allies and punish his political opponents.

Trump's gargantuan trade war is an egregious violation of these principles. Under the administration's interpretation of the International Emergency Economic Powers Act of 1977 (IEEPA), the president essentially has the power to  impose any tariffs, in any amount, on any country, at any time. He can also create exemptions for any given firm, industry, or region of the country, as Trump has already done for various electronics imports.

IEEPA doesn't actually authorize tariffs at all, and invoking it requires the existence "unusual and extraordinary threat" to the US economy or national security, with respect to which the president has declared a "national emergency." But the administration claims the president has unreviewable authority to declare a national emergency whenever he wants, and that even bilateral trade deficits that have existed for decades (and are not actually harmful) constitute an "extraordinary and unusual threat." If so, then virtually anything can qualify as such.

If the president can impose any tariffs he wants, at will, and also reverse them or grant exemptions at will, that is the very opposite of the rule of law. It is essentially the rule of one man. And it's easy to see how such sweeping authority can be readily used to reward friends and cronies, while punishing political opponents. Studies show that firms contributing to the Republican Party were disproportionately likely to receive exemptions from much less extensive tariffs imposed in Trump's first term, while firms contributing to Democratic candidates were more likely to be rejected. Trump's massive "Liberation Day" tariffs are an opportunity to engage in such favoritism on a far greater scale.

In fairness, these dangers are not entirely unique to Trump's tariffs. Many other discretionary exercises of executive power also create legal uncertainty. And political cronyism and favoritism have occurred under administrations of both parties, including those of Barack Obama and Biden. Nor are tariffs the only threat to the rule of law under Trump (far from it).

But the enormous scale of Trump's tariffs is unique in modern times, greatly magnifying the threat they pose to the rule of law. The Tax Foundation estimates that Trump's IEEPA tariffs will impose some $1.4 to 2.2 trillion in tax increases on Americans, over the next decade, and have a massive impact on almost every part of the economy.  For as long as the tariffs continue (and they have no enforceable expiration date), that's an incredible amount of power to be completely concentrated in one man's hands. And a nearly unlimited opportunity for favoritism. The danger is exacerbated by the fact that, under, Trump's interpretation of IEEPA, there are no legally binding rules determining how long the tariffs should last, which imports they should target, and whether exemptions can be granted or denied. Trump likes to call himself to a king, and his tariff policy would make him an absolute monarch over US international trade - and the many parts of the economy dependent on it.

To be sure, Congress could potentially curb Trump's authority by enacting new legislation. But that is unlikely to happen, given the requirement of a two-thirds majority in each house to overcome a veto. One of the purposes of judicial review and rules like nondelegation and the major questions doctrine (both of which Trump's IEEPA tariffs run afoul o) is to prevent the executive from usurping authority in ways that are difficult to reverse after the fact.

The threat to the rule of law is an additional reason why courts should not hesitate to strike down Trump's tariff power grab in the various cases brought against it, such as those filed by the Liberty Justice Center and myself on behalf of five small business, the Pacific Legal Foundation, twelve state governments, and others. Much more than economic harm (as important as that is in itself) is at stake in these cases.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Group chats, monopolies, and corporate espionage.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Over at The Dispatch, IJ attorney John Wrench invokes General Slushington and makes the case that the White House's intimidation of law firms is an existential threat to the rule of law. Click here to read it.

In 2003, Accuracy in Media files a FOIA request with the CIA seeking records related to Vietnam-era POW/MIAs. In 2004, they filed suit after the CIA failed to respond to the request. And in 2025, the D.C. Circuit holds that the CIA still has not shown that it performed an adequate search for the records. Iran provided material support for a Taliban attack that killed 30 Americans, including Navy SEAL Kraig Vickers. Vickers' family sues Iran under the Foreign Sovereign Immunities Act and all recover damages except for Vickers' youngest daughter, whom the district court regretfully holds is ineligible because she was not born until two months after Vickers' death. D.C. Circuit: That limitation isn't in the statute. Iran is on the hook for her damages, too. Allegation: Per some investigative journalism, the Catholic Church used donations for people in dire need to instead fund real-estate investments, Hollywood films, etc. Fraud? Unjust enrichment? District court: Could be. Motion to dismiss denied. D.C. Circuit: Which is not a final decision that we can review. The church-autonomy doctrine isn't a grant immunity from trial and other burdens of litigation, and so says every other circuit to weigh in on this. One of the most-read novellas of all time, Joseph Conrad's Heart of Darkness , clocks in at, depending on what edition you pick up, around 120 pages. Not to be outdone, the Fourth Circuit (en banc) provides 126 pages of non-precedential concurrences, plus one dissent, in addressing whether geofence warrants are unconstitutional. Oh, there is one precedential sentence in the per curium opinion affirming the district court. Sadly, no one referenced any horror. Over the course of 10 years, Louisville, Ky. man is indicted and re-indicted six times on 34 charges including murder, rape, kidnapping—all over the same nexus of events that took place in 2004. (He spends over seven years in prison.) But wait! The state drops the murder charge in 2015 and then all the rest of the charges in 2016. Malicious prosecution? Sixth Circuit: Too late to sue over being framed for murder. You were supposed to file that before you were off the hook for the rest of the charges. Allegation: In private group chat with the mayor and city manager, an Albion, Mich. city council member suggests firing another city official. Yikes! Instead, the council member is arrested and prosecuted for violating a city ordinance that prohibits council members from firing people. (She's acquitted.) Sixth Circuit: Yeah, well, there was probable cause to think she might have been secretly firing people. The ordinance applies to exactly six people on earth, so it's not like the fact that it had never been enforced before means her prosecution was retaliatory. In a challenge to Hawaiʻi's ban on butterfly knives the district court ruled against the plaintiffs. But! At the Ninth Circuit (2023) a 3-judge panel reversed and ruled the law violated the Second Amendment. But! The case went en banc, which immediately vacated the 3-judge panel's judgment. Then, 20 months later, the en banc court ruled the case was moot because the legislature changed the law after the 3-judge panel ruled. So, can the plaintiffs get attorneys' fees, as they did kind of win at one point? Ninth Circuit (en banc) 2025: No, mootness is not a win. Concurrence: This is a dumb rule. Dissent: Like, really dumb. Chinese state-owned company is indicted for corporate espionage for allegedly stealing trade secrets from DuPont concerning the manufacture of titanium dioxide. Company: We're entitled to foreign sovereign immunity because we're owned by the Chinese government and we stole the secrets using "sovereign techniques—namely, espionage." Ninth Circuit: Nice try. Riverside, Calif. officers tase, handcuff mentally ill man who's high on meth. He stops moving, but they continue to pin him down for several minutes. He dies. Jury: Which was not a Fourth Amendment violation, but was negligent under state law. Officers: Both federal and state law hinge on whether we acted "reasonably," so this mixed verdict can't stand. Ninth Circuit: Nope, they are different standards. Pay the $1.5 mil judgment. Allegation: San Diego police arrest mentally ill man who was, it turns out, not high on meth. (He dies in custody.) District court: The results of field sobriety tests were consistent with schizophrenia, not meth use. A jury should decide if the officers lacked probable cause to arrest. Ninth Circuit (unpublished, over a dissent): Reversed. The officers' mistake was not objectively unreasonable. In which the Ninth Circuit (unpublished) reminds us that the Sherman Act only forbids privately created monopolies because monopolies created by state governments are totally super-cool, man. Oklahoma cops seize a 24-year-old's iPhone when he surfaces with a missing 14-year-old and get a state warrant to search for anything on the phone that might be evidence of any crime. Yikes! They uncover child porn and hand the trove to federal officers, who apply for a federal warrant using that evidence. Tenth Circuit: State warrant authorized a pure 18th-century general search, so no good-faith exception; strike the poisoned paragraphs from the federal warrant application and probable cause disappears. Phone suppressed. Reversed, vacated, and remanded. Lowell, Mass. officers cross into Nashua, N.H., pluck a home invasion suspect's phone from his hands mid-call-log-deletion, and return to Mass. where they get a warrant to search the phone. Mass. Supreme Judicial Court: No fresh-pursuit statute, no cross-border aid agreement, and N.H. citizen-arrest law lets you seize people, not property. Later Mass. warrant can't launder the Granite-State-grab, and "inevitable discovery" wasn't raised below. Phone suppressed. Affirmed. And in amicus news, next month IJ will argue to the Indiana Supreme Court that modern zoning runs afoul of the state's rich tradition of protecting the quiet use and enjoyment of property. Not least in the present case, which involves a county zoning board rescinding a conditional-use permit granted to a local recycling facility after a competitor—a big shot national conglomerate—belatedly objected. (The county's belated reasoning: that since the recycling facility doesn't also handle regular trash, it's not allowed under the ordinance that authorizes recycling facilities. Yeah, right.)

First-round victory! IJ client UPSIDE Foods is a California-based startup that produces cultivated meat grown from cells, a process that is certifiably safe and that has been approved by federal health regulators. But last year, Florida imposed a first-in-the-nation ban on cultivated meat, and not because of any health-and-safety concerns. Rather, officials want to protect state agricultural interests from competition. This week, however, a federal judge said that just might violate the dormant Commerce Clause. "UPSIDE is not looking to replace conventional meat, which will always have a place at the table," says Dr. Uma Valeti, CEO of UPSIDE. "All we are asking for is the right to compete, so that Floridians can try our product and see that it is possible to have delicious meat without the need for slaughtering animals." Click here to learn more.

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[Jonathan H. Adler] President Trump Makes First Judicial Nomination of Second Term

[President Trump's first judicial nomination of his second term clerked for Justices Alito and Barrett (and then-Judge Kavanaugh)]

Last night, President Trump announced his intent to nominate Whitney Hermandorfer, Director of Strategic Litigation on the Tennessee Attorney General's Office, to the U.S. Court of Appeals for the Sixth Circuit. She will replace Judge Jane Stranch. This is the first judicial nomination of Trump's second term, and the announcement came late last night in a post on Truth Social.

Hermandorfer has strong and fairly conventional qualifications for a judicial nomination in a Republican Administration. Prior to joining the Tennessee AG's office worked at Williams & Connolly). She also clerked for both Justices Samuel Alito and Amy Coney Barrett on the Supreme Court, as well as for then-Judge Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit and district court Judge Richard Leon. She was first in her class and Editor-in-Chief of the law review at the George Washington University Law School and was graduated magna cum laude from Princeton University, where she was also co-captain of the Women's Varsity Basketball team. (N.B. I believe Hermandorfer is the first Trump judicial nominee to have clerked on the Supreme Court for one of Trump's Supreme Court nominees.)

After this nomination, there are five remaining current or pending appellate vacancies awaiting nominations: One on the First Circuit, two on the Third Circuit, one on the Seventh Circuit, and one on the Ninth Circuit. There are also fifty-five district court openings.

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[David Bernstein] I Don't Mean to Brag, but I Didn't Go to Harvard

[Harvard continues to beclown itself.]

Recent news from Harvard:

(1) Harvard, under a lot pressure from both the government and internal constituencies, released a lengthy report about antisemitism at the university since October 7. It's pretty devastating, and pretty much should shame all those who have been claiming that complaints about antisemitism there have been exaggerated "Zionist" propaganda.

(2) There's a lot of crazy stuff in the Harvard report, but I can't stop thinking about this  chart used in a *required* Education School class.

 

 

It's antisemitic, yes, in suggesting that the ADL, which has been fighting white supremacy for over 100 years, is one of the worst examples of white supremacism in the United States. But it's just batshit crazy more generally, and shows the connection between nutty woke ideologies and antisemitism. The report assures us that the instructor is no longer using this chart. IMHO, anyone who thought using this chart as a serious learning tool can and likely should be fired for cause.

(3) After the Washington Free Beacon revealed blatantly illegal racial preferences at the Harvard Law Review, law review editors took action--they began to try to find and punish the leaker, while defiantly proclaiming that they don't plan to charge their day-to-day policies. Out of curiosity, I dug up Harvard's anti-retaliation policy for whistleblowers, or at least what was the policy as late as this past March. (I had to retrieve it from Archive.org). Going after the student leaker is a blatant violation of that policy. I think we're getting to the point where there is good reason to question the top HLR's editors ability to meet the character and fitness requirements of state bars, given their blatant disregard for any laws or rules that apply to them.

(4) Not being satisfied with blatantly defying both federal law and Harvard policy, the Law Review decided to award a $65,000 fellowship to a rather, umm, interesting recipient. Law review editor Ibrahim Bharmal was caught on video assaulting a Jewish Harvard student. He was prosecuted, without Harvard's cooperation, by the local DA, and a few days ago was sent to a diversion program for first-time offenders in which he will have to pick up trash and do other public service and attend an anger management class. So he wasn't convicted, but the assault is, as noted, on video. Not only did that not stop the Law Review from rewarding him with a fellowship, but he will use the fellowship to work at the antisemitic Council on Islamic Relations' especially antisemitic Los Angeles office.

(5) And speaking of Bharmal, someone at Harvard Law School decided he would make a good poster boy for its clinical programs, and last month gave him a whole page to praise both himself and the clinic he worked for on the law school website. It's almost like certain Harvard affiliates want to give the Trump administration ammunition in its war against the university.

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[Josh Blackman] Today in Supreme Court History: May 2, 1927

5/2/1927: Buck v. Bell decided.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: Solicitor General Seeks Guidance from Supreme Court

[“Where arms may be carried” and “what types of arms people may possess” should be resolved.]

The United States has filed an amicus curiae brief in support of the cert petition in Wolford v. Lopez seeking review of the following issue: "Whether the Second Amendment allows a State to make it unlawful for concealed-carry license-holders to carry firearms on private property open to the public without the property owner's express authorization."  As the brief explains, "after Bruen, five States, including Hawaii, inverted the longstanding presumption and enacted a novel default rule under which individuals may carry firearms on private property only if the owner provides express authorization, such as by posting a conspicuous sign allowing guns."  The Ninth Circuit upheld Hawaii's law.

In doing so, Solicitor General John Sauer explained how multiple Justices and judges have recognized the need for more guidance from the Court on Second Amendment issues.  The brief explains:

Rahimi began the process of clarifying who may possess arms…. This case affords an opportunity to begin addressing where arms may be carried. And the Court should, in an appropriate case, also provide a framework for evaluating what types of arms people may possess…. The Court's consideration of those important questions would help lower courts seeking to interpret the Second Amendment, legislatures seeking to comply with the Constitution, and (most important) ordinary Americans seeking to exercise their fundamental right to possess and carry arms for lawful purposes such as self-defense.

As to the "types of arms" that are protected, as I've posted previously, two cases have been repeatedly relisted and remain before the Court: , which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes, and Ocean State Tactical v. Rhode Island, which asks whether a confiscatory ban on the possession of magazines that are in common use violates the Second Amendment.  These cases have been distributed for the conference of Friday May 2, and both would make excellent vehicles to resolve the issue of protected types of arms.

The SG's brief in Wolford makes the following argument that would apply to a number of the ongoing Second Amendment challenges: "The preliminary-injunction posture in which this case arises should not deter this Court from granting review. The court of appeals did not decide this case in haste; to the contrary, it issued an 81-page opinion nearly a year after petitioners appealed…. And since the court's merits analysis all but foreordains the final outcome, further proceedings in the lower courts would serve no useful purpose."

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