Eugene Volokh's Blog, page 163

[Keith E. Whittington] New Episodes of the Academic Freedom Podcast

[Conversations on campus free speech with Timothy Zick, Jennifer Ruth, and Michael Berube]

In recent weeks, the Academic Freedom Podcast has released two new episodes focusing on campus free speech issues.

First up was a conversation with Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School. He is the author most recently of Managed Dissent: The Law of Public Protests. The episode focuses on the law surrounding public protests on and off college campuses.

Next was a conversation with Jennifer Ruth and Michael Berube about their recent book, It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom. They are both long-serving leaders in the American Association of University Professors, and the book develops a provocative proposal for patrolling the acceptable boundaries of extramural speech by university faculty.

More to come.

The post New Episodes of the Academic Freedom Podcast appeared first on Reason.com.

[Randy E. Barnett] Birthright Citizenship

[A Reply to Critics]

By Randy E. Barnett and Ilan Wurman

Since the publication of our opinion piece on birthright citizenship in the New York Times ("Trump Might Have a Case on Birthright Citizenship"), we have received numerous critiques, some quite thoughtful (others less so), both in this and other venues. In this short essay we recapitulate and elaborate upon the argument of our initial piece, emphasizing especially the parts that are responsive to the criticisms. None of the objections has convinced us that we erred. 

The Common-Law Default

The aim of our NYT op-ed was principally to establish the actual common law rule of birthright subjectship and subsequently birthright citizenship. As readers will know, the questions with which we are confronted today—those involving illegal immigration or temporary sojourning, the latter represented in its most concerning form by those who temporarily visit for the specific purpose of having a child in the United States—were not prominent issues at the time the common law rule developed. Nor has the Supreme Court addressed either issue: in Wong Kim Ark, the Court held that a child born here of domiciled, permanent residents was a birthright citizen.

Thus, we make two overarching points. First, whether the common law rule would have applied to either group can only be determined by understanding the actual principle and operation of the rule and extrapolating it to these situations. Second, we presume, as the Supreme Court has, that the Fourteenth Amendment's language "subject to the jurisdiction" of the United States was intended to encapsulate the rule, whatever it was. It is of course possible that the language was intended to, or simply does as a matter of original meaning, extend or restrict the common law rule. One can therefore disagree with us on any of these points: One can disagree with our characterization of the common law; or with our application of its rule to modern-day questions; or with the presumption that the language of the amendment tracks that rule as opposed to doing something else.

What we emphatically reject is that the meaning of the word "jurisdiction" is somehow plain or obvious. The Supreme Court has famously said that jurisdiction is a word of many meanings. It appears to us that the members of the 39th Congress would have agreed. And, to reiterate, in Wong Kim Ark the Supreme Court presumed that jurisdiction referred to the common law allegiance-for-protection view that we elaborate in our initial piece and further below.

As a methodological matter, we think the original public meaning of the text is what matters. We say more about this below. And if it incorporated the common law rule, the actual content of that historical rule is what matters. But to the extent either is ambiguous as applied to the modern-day questions, the interpretation of either, as Madison once said, can also be "triable by its consequences."

We find it particularly puzzling that opponents of our position, many of whom would normally object to following original meaning, in this case insist on following a particularly feudalistic and archaic conception of subjectship. In our view, the best understanding of the common law rule does not require such feudalistic applications today. At a minimum, how the rule would apply to present circumstances is ambiguous, in which case the feudalistic and archaic conceptions should also be avoided.

We also emphatically reject, however, the claim that the framers of the amendments intended to adopt something other than birthright citizenship. We reject the claim that some scholars have made that the framers were adopting "jus sanguinis," or citizenship by blood, according to which only the parents' citizenship determined one's own status (aside from naturalization). What we do claim, however, is that the status of the parents mattered for jus soli too. That is, we aim to show that even under the birthright rule, the status of the parents mattered. The parents could, indeed, be aliens. We therefore think Wong Kim Ark was rightly decided. But it was not enough merely to be an alien physically present. The exceptions to the rule show this to be the case.

The Puzzles of the Conventional View

One central issue that justifies our exploration of the common law rule is that the standard view of "subject to the jurisdiction" creates a series of puzzles. It is known that certain groups were excluded from birthright citizenship: the children born to (1) ambassadors, (2) Native Americans subject to tribal authority, (3) members of invading armies, and (4) foreigners on foreign vessels in U.S. waters. There is also some reason to think other "nontaxed" Native Americans—those not subject to tribal authority, but who nevertheless had not assimilated—were also excluded.

The question then becomes why they were excluded.

As noted in the New York Times piece, the standard view of the phrase "subject to the jurisdiction" is that it means subject to U.S. law or sovereignty. But this creates some puzzles. For example, it cannot explain the status of children born to loyal Americans in enemy-occupied territory. They are not subject to U.S. law or sovereignty nor do they receive the protection of the United States. (We do not understand how Ilya Somin could say otherwise.) Yet as the Supreme Court said in the Inglis case, they were presumed to be citizens upon reconquest. Conversely, it is obviously true that foreigners on foreign vessels in U.S. waters are subject both to U.S. protection in at least some sense, as well as the application of U.S. law. Numerous state and federal laws are applicable. And yet children born to foreigners on those vessels are not automatic citizens.

Other puzzles abound, about which we are less confident. As noted, at least from the discussions over the Civil Rights Act of 1866, it seems to have been presumed that there was a class of Native Americans on American soil, not subject to tribal authority, but over whom the U.S. had never taken jurisdiction. If they were excluded from birthright citizenship, the traditional rule cannot explain that, either. They were on U.S. soil and neither loyal to, nor under the control of, any tribe.

One thing these exceptions also confirm is this: the status of the parents matters. Whether the child of an ambassador is subject to U.S. law, or U.S. sovereignty, or is under U.S. protection, has everything to do with the parents' status. As Sir Edward Coke wrote in the 1608 decision in Calvin's Case: "[U]nless it be in special cases," there are "regularly . . . three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth . . . ."

We are thus somewhat puzzled by the critics who have asserted that the social compact theory of allegiance-for-protection, which we advance instead of the conventional reading of jurisdiction, cannot apply to newborns whose status must depend entirely on the soil on which they were born. This objection overlooks the obvious point that all the acknowledged exceptions to the natural-born-citizens default rule are based on the status of a child's parents.

In our view—as we explained in the New York Times, and elaborate below—the relevant status is that the parents enter into the social compact and thereby receive the protection of the laws not only for themselves but also for any children they may have within the U.S. And from this allegiance of the parents to the United States, coupled with the protection their children receive, flows the status of birthright citizenship of their children.

Originalist Methodology

Before we continue on to the merits, i.e., our view of the common law rule, we first address whether our approach is even consistent with originalism. We think one of the weakest criticisms of our piece was that our approach was inconsistent with originalist methodology. Part of this stems from the need to omit this paragraph on methodology due to space and the fact that the Times editors found it too "professory" (though to be clear, we thought the editing process greatly strengthened the piece overall):

First a word about methodology. As originalists, we are gratified that, by and large, the first instinct of virtually all commentators—even nonoriginalists—has been to seek the original meaning of these words. We are public meaning originalists who maintain that this question should be answered by how the public would have understood them. If the public would have recognized them as a legal term of art, then we look to the then-established meaning of these terms within the legal community. If there was no consensus among either the public or legal authorities about the meaning of the "letter" of the text, then we must seek the meaning that would best serve its "spirit," by which we mean the functions, ends, objects, or purposes for which the provision was adopted.

(For how originalism incorporates both the letter and the spirit of the text, as one of us has written, see here.) 

In another omitted passage we explained that the term "jurisdiction" is ambiguous in the context of citizenship. It could mean persons who are subject to the power of the government or it could mean persons who are members of the social compact. We find this phrase ambiguous for a number of reasons, but particularly because the conventional reading creates the inexplicable anomalies described above. As we then explained in another omitted passage:

When deciding which of two senses is being used, context is especially important. Both of us are public meaning originalists who maintain that the meaning of the Constitution's text should be gathered from how the public would have understood the words at the time they were written. The legal concepts underlying the amendment and its purposes were well known and help to establish the most likely meaning of this phrase.

All this is, of course, perfectly "originalist." It is not unusual for nonoriginalists—especially those who scorn originalism—to be unaware of its nuances.

Yet, one of the striking things about this debate is how originalist it is. It seems that nonoriginalists love original meaning when they think it is on their side. But nonoriginalists do not always understand how the original meaning is identified. Above all, the original meaning is not the "plain" or "literal" meaning of the text, but is the communicative content of the words in context. And contrary to the familiar refrain by nonoriginalists that originalism fails to yield determinate answers, defenders of the conventional wisdom are adamant that they know the one true original meaning, and that there can be no ambiguity here.

Allegiance-for-Protection

Now to our central claim on the merits of the common law rule of birthright citizenship: it was not nearly as ascriptive as commonly claimed. There is a large degree of ascription to the rule: because one is born under the protection of the king, the king affords that child protection in his or her infancy. That child, in turn, owed a perpetual allegiance to the king as a debt of gratitude for that protection in infancy. Of course, the common law rule evolved in at least some ways by 1868. For example, Americans are not subjects, but citizens, and the obedience demanded is not to a person, but to the laws. The rule of perpetual allegiance was also widely discarded in the nineteenth century, for obvious reasons.

Our central point is that, notwithstanding the ascriptive elements of the common law rule, the rule itself could be traced back to the social compact. By this we do not mean an express contract (which is why we are using "compact" rather than "contract"), nor do we mean that the compact itself implied citizenship. By social compact, we mean only the theoretical agreement at the root of civil society as distinguished from a state of nature. The social compact is more familiar in its Lockean form: we exit the state of nature and give up our own executive power and agree to be bound by the sovereign (allegiance) in exchange for the benefit of that sovereign's laws, and the sovereign's protection against the private violence and private interference with rights endemic in the state of nature.

Contrary to some criticisms we have received, we do not claim that the common law rule as enunciated by Coke in Calvin's Case adopted social compact theory in Lockean terms. It would be anachronistic to say so. But social compact theory existed and was widely discussed before John Locke, and by others besides Locke.

Although this part of the argument did not make it into the New York Times essay, Coke traced the protection-followed-by-allegiance argument back to the initial social compact. If anything came first, allegiance did; but more probably, the two arose from the natural law together. Coke wrote that "magistracy and government" follow from the law of nature and that "ligeance, faith, and obedience of the subject to the Sovereign" existed "before any municipal or judicial laws" because it would have been "in vain to have prescribed laws to any but to such as owed obedience, faith, and ligeance before." Coke later on concluded that "ligeance and obedience" is "due by the law of nature," and that "protection and government [are] due by the law of nature." We do not think it much matters which came first, allegiance or protection; the point is rather that both are due by the law of nature because of the original social compact.

Whatever one thinks of Coke's reasoning in this regard, aliens who came to the country, and who had not received protection from the king in their infancy, more directly enter into a social compact. Aliens who came in amity, Coke said, receive a "local" protection while in the lands and must therefore give a local obedience or allegiance to the sovereign. This exchange is immediate. It hardly matters whether protection or allegiance comes first; the exchange is simultaneous.

What we argued in our New York Times essay is that it is only because of this compact between the alien and the sovereign that birthright subjectship applied to the alien's child. Part of protection owed to the alien parent is protection for any of their children born in the realm. It was that protection of the child in infancy that in turn created an obligation of perpetual allegiance to the sovereign on the part of the child (which by the nineteenth century could be disclaimed by the child when the child reached the age of majority).

Coke said as follows about the local allegiance and protection of an alien: "[this] local obedience being but momentary and uncertain, is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject; a fortiori he that is born under the natural and absolute ligeance of the King . . . ought to be a natural born subject." It is here that Coke then explains why invading armies are excepted: because "It is not cœlum nec solum"—neither the climate nor soil—that makes a subject, but rather being born "under the ligeance of a subject" and "under the protection of the King." 

[UPDATE: Note what Coke is saying. To be a natural born subject, once must be born under the ligeance of a subject. If we are reading this correctly, the child has to be born "under the ligeance of" the parent who is "a subject." Can aliens be subjects? Yes. If they give a local obedience in an exchange for local protection, they become "natural subjects," even if not natural-born subjects, at least for the duration of their stay.]

Of course, Coke was not thinking about illegal migration, so it's hard to say exactly how he would have applied this rule to the modern situation. But [to summarize], it seems to us that what Coke is saying is that the local allegiance of the alien is sufficiently strong to create the right of protection for the child, which protection will in turn demand the child's (defeasible) future allegiance.

The right of the child to protection thus hinges on the alien parent having given a local obedience—that is, on having entered into the social compact with the sovereign. Otherwise, both the child and the alien parents would have to find protection elsewhere, from some other government—namely, the government from which the parents came.

Application of the Rule

If our understanding of the theory of allegiance-for-protection, or protection-then-allegiance, is correct, then it is hardly obvious how it would have applied to persons coming into the realm in violation of the laws and against the wishes of the polity as expressed in its laws. As we noted in our New York Times essay, one cannot give allegiance and a promise to obey the laws through an act of defiance of those laws—most especially when one is consciously aware that the polity has not consented to one's admission thereto.

Even today, persons who enter illegally can often be summarily removed, especially if caught soon after entry. There is no reason such summary removal would not apply to the child, too. To the contrary, neither the parent nor child is entitled to protection from this government in the relevant sense. They must look to the government from which they came for the protection the law of nature requires for all within the social compact.

This account is far more coherent than the conventional wisdom's emphasis on power and sovereignty. The previously mentioned exceptions suggest not only that the excluded groups did not enter into the social compact, they demonstrate that allegiance matters more than protection. Consider Americans in enemy-occupied territory. Their children literally do not receive protection from the United States government. And yet it was presumed they would be natural-born citizens after reconquest. The reason is that their allegiance is what mattered (together with their presence on U.S. soil), and the fact that the government owed them protection, even if it could not deliver that protection de facto. Conversely, the children of ambassadors of course enjoy a "local" protection here. But they are not citizens because their allegiance is to their parents' nation.

Or consider children born on foreign vessels. They are subject to U.S. law and sovereignty locally and temporarily, but obviously did not enter into the social compact here. Their allegiance is to another sovereign, and the ultimate protection for the child must come from that sovereign. The excluded groups of Native Americans "not taxed" on American soil, even if outside the control of a tribe, also hadn't entered into the social compact.

More generally, the sovereignty account suffers from a more absurd defect that gets to the root of today's debate over immigration. The writers on the law of nations universally agreed that sovereignty included the right to exclude from one's territory. It included, in other words, the right to decide which foreigners shall become a member of the society, whether on a temporary or permanent basis. What a republic based on popular sovereignty has decided on the matter will be dictated by its laws.

To say that children born to persons who illegally enter in violation of the nation's sovereignty must be citizens because the nation is exercising the powers of sovereignty over them is a fatal contradiction and absurdity. Of course, the nation is exercising a kind of sovereignty in the sense it can subject them or their parents to some degree of domestic law. But the nation is not exercising sovereignty in any meaningful sense because one of the core rights of sovereignty—to control who enters the territory—is by definition being violated.

Are the Freed People Citizens?

One of the more perplexing criticisms we have received is that under our account of the common law rule, the freed people would not be citizens. Obviously, as we recognized in our New York Times essay, the central purpose of the amendment was to extend citizenship to the freed people. If our understanding of the rule fails to account for that, then that understanding cannot be right.

But our account of the rule does extend birthright citizenship to the newly freed people. To reiterate, by social compact, we do not mean the explicit consent from both parties to citizenship as would be required for a contract between private parties. We mean that allegiance of some kind has been exchanged for protection, remedying the defects of the state of nature. Any child born to someone who had entered into that kind of social compact with America would be a citizen.

The newly freed people obviously qualify. In our view, enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless. It was a failure on America's part that it did not provide the protection that it owed in return for that allegiance. Certainly the free African Americans of the period were given protection in exchange for allegiance. One way or another, at some point, they or their children would have become citizens. The same is true of the newly freed people just prior to the adoption of the Fourteenth Amendment.

It may not be unworthy of mention that we think this a sufficient response to Paul Finkelman's famous article. He argues that there was illegal immigration in the period, namely violations of the prohibition on the Atlantic slave trade. Allegiance and obedience were demanded even of the enslaved persons who were brought into this country against their will and in the violation of its laws. Nor did they knowingly violate the laws of the country when entering; any such violation was committed not by them but by their kidnappers, or what was then called "man stealers."

A nation that fails to prevent such violations of natural right surely owes such individuals protection. This is entirely, and it seems to us quite obviously, different than the situation in which someone willingly comes into the country in knowing violation of the laws governing their entry and presence.

Did We Misread Bates?

As we noted, we presume that the language of the fourteenth amendment was intended to codify the default common law rule defining birthright citizenship. To that end, we stressed the lengthy and detailed 1862 opinion of Attorney General Edward Bates. Bates' opinion reflected the mainstream view of Republicans in Congress and elsewhere. Our limited point was that the existing debate about birthright citizenship had overlooked this important underlying concept of allegiance and protection, which we tried to show was itself rooted in notions of social compact. 

One of our critics, Jed Shugerman, who considers himself to be an originalist, claimed that Bates's opinion contradicts our view:

The bottom line is that their essay backfires, because their main source for their supposed "allegiance-for-protection theory" is a single sentence from Lincoln's Attorney General Edward Bates in 1862), but just a few paragraphs later, Bates clearly endorsed birthright citizenship as "universal principle, common to all nations and as old as political society," and "a historical and political truth so old and so universally accepted that it is needless to prove it by authority."

[UPDATE: Michael Ramsey has made a similar criticism here about our use of Bates' opinion.] But [both he and] Shugerman misunderstand our intervention. We are not disputing "birthright citizenship" as the rule. Far from it, we reject those who do. Rather, we are identifying the scope of the birthright citizenship rule itself. As Bates put the matter:

I have said that, prima facie, every person in this country is born a citizen; and that he who denies it in individual cases assumes the burden of stating the exception to the general rule, and proving the fact which works the disfranchisement. . . .

(We thank Kurt Lash for bringing this facet of Bates' approach to our attention. Space constraints prevented us from mentioning the concept of "prima facie citizenship" in our op-ed. Lash will be elaborating on his understanding of this concept in future work, a preview of which is here.)

Bates, of course, does not address the specific question of whether persons unlawfully present in the U.S. fall within the exception or the rule. Our claim is that the conception of the social compact to receive protection in return for obedience to the laws invoked by Bates, which constitutes "allegiance" in a republic, (a) informed the original meaning of "jurisdiction"; (b) helps us to resolve the ambiguity of "jurisdiction"; and (c) explains, not only the exceptions, but other anomalies that are raised by the "power of the state" conception of "jurisdiction," which has dominated the discourse. 

Bates' opinion is key evidence that the allegiance-for-protection view of birthright citizenship was a core underlying principle that was held by Republicans and made known to the public. We deny, however, that this view was entirely ascriptive. Our whole argument was that the notion of social compact played more into the idea of birthright citizenship than is traditionally believed. 

What About Congress's Statutes?

Although criticism on Blue Sky has been rather unserious, some scholars have made important points. Sherrilyn Ifill, for example, as well as Marty Lederman and Steve Vladek in other forums, have quite sensibly pointed to various congressional statutes that seem to treat aliens who came here unlawfully as falling within the birthright citizenship rule. We take no position on that, and certainly agree that Congress could also extend jurisdiction in the relevant sense over additional groups, and could certainly use its naturalization power. To the extent such laws have been enacted, an executive order that violates them would be improper. We were concerned in our piece with the nature and scope of the default rule, about which the conventional wisdom is overconfident in its understanding. 

The post Birthright Citizenship appeared first on Reason.com.

[Stephen Halbrook] Second Amendment Roundup: 5th Circuit holds suppressors not to be protected "arms"

[It’s time to have a serious discussion about a device that enhances the exercise of the right.]

On February 6, the Fifth Circuit decided United States v. Peterson, holding that noise suppressors (aka silencers or mufflers) are not protected by the Second Amendment.  Written by Chief Judge Jennifer Elrod, the court held that suppressors are not "Arms" within the Second Amendment's purview.  Under Bruen, if an item is an "arm" within the text of "the right to keep and bear arms," the burden shifts to the government to demonstrate that the restriction is consistent with the historical tradition of arms regulation at the founding.

Under Heller, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." To that, the Peterson court added that "to constitute an 'arm,' the object in question must be a weapon." In other words, for a modern-day instrument to be an arm under the Second Amendment's text, the object itself, standing alone, must be an arm.

Peterson argued that suppressors are "an integral part of a firearm," that "a bullet must pass through an attached [suppressor] to arrive at its intended target," and thus they meet Heller's definition as a weapon that casts and strikes.  The court rejected this argument, stating: "A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense."  Of course, neither is a barrel, a trigger, a stock, or a safety, but do they have no Second Amendment protection?

The court stated that the Amendment only protects "items necessary to a firearm's operation, not just compatible with it."  While a barrel is necessary, a safety is not, neither is a trigger guard, recoil pad, or sights.  Are parts that make a firearm safer, more accurate, and useful not protected? They should be protected given Bruen's language, citing Caetano's decision on stun guns, that an arm "covers modern instruments that facilitate armed self-defense." The Supreme Court said "instruments" that "facilitate" armed self defense rather than are "necessary."

The Peterson court relied on United States v. Cox (10th Cir. 2018), which asserted that a suppressor "is a firearm accessory … not a weapon."  Does that mean that a rifle sling, which literally enables the person to "bear" the arm, has no protection?  The Supreme Court made no such distinction in Heller, Bruen, or Rahimi, none of which even use the term "accessory" or "accessories."

Three unpublished cookie-cutter decisions were also cited, two by district courts and one by an appellate court – United States v. Saleem (4th Cir. 2024).  That court conceded that "silencers may serve a safety purpose to dampen sounds and protect the hearing of a firearm user or nearby bystanders," but added, "A firearm will still be useful and functional without a silencer attached…."  According to this logic, parts that make a firearm more useful and more functional are not protected, which implies that laws that restrict firearm designs to be the least useful and least functional would be consistent with the Second Amendment.

The Peterson court also rejected Peterson's argument that under United States v. Miller (1939), "arms" include the "'proper accoutrements' that render the firearm useful and functional."  According to the court, "the 1785 Virginia statute quoted in Miller used that language to describe items like gunpowder, lead, and cartridges—items necessary to a firearm's operation, not just compatible with it."  But the Virginia statute also included "a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket."  And a cartridge box was necessary to the efficient operation of the firearm.  The same could be said for a silencer.

Textually, a restriction on a firearm with a silencer is a restriction on an entire category of firearms – suppressed firearms.  That infringes on the right of the people to keep and bear firearms that fire suppressed rounds.  Heller held that an entire category of arms that Americans choose – in that case, handguns – may not be banned.  Heller also held that arms that are typically possessed for lawful purposes are protected, and as shown below, suppressed firearms are rarely used in crime and are possessed in large numbers.

As the court noted, the "grand jury indicted Peterson for possession of an unregistered suppressor" under the National Firearms Act (NFA).  That was a curious way to represent the indictment, in part because the word "suppressor" is not included in the NFA.  To state an offense against the United States, the indictment had to allege that Peterson had an unregistered "firearm," which is defined to include "any silencer (as defined in section 921 of title 18, United States Code)."  26 U.S.C. § 5845(a)(7).

And when we look at § 921 of Title 18, we find: "The term 'firearm' means … any firearm muffler or firearm silencer…."  The latter two terms are defined in part to include "any device for silencing, muffling, or diminishing the report of a portable firearm…."

Looking at Peterson's brief on appeal, the indictment did indeed allege that he "knowingly received a firearm, to wit: a black cylinder which is a firearm silencer and firearm muffler, not registered to him in the National Firearms Registration and Transfer Record."  As counsel commented in the brief: "Paradoxically, the government now argues that the device for which the defendant received and possessed is not a firearm to deny the constitutional rights of the defendant as provided for by the Second Amendment."

Unfortunately, Peterson's brief went downhill after that.  It states: "Following Heller, the Appellate Courts have employed a two-step inquiry to determine whether a statute violates the Second Amendment."  It then recites the test as involving, first, whether the restriction is a burden within the scope of the Amendment, and second, the duty of the court to "apply an appropriate form of means-end scrutiny…." It then states that "the government's argument is unable to bear its burden of showing the NFA satisfies the appropriate level of means-end scrutiny."

As Justice Thomas wrote in Bruen, "this two-step approach … is one step too many."  While Heller "demands a test rooted in the Second Amendment's text," it does "not support applying means-end scrutiny," and instead "the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms."

But Peterson's brief, which was filed in May 2024, fails so much as to cite Bruen, which was decided in June 2022.  That was inexplicable, as counsel was on notice of the decision because the district court discussed Bruen for over a page in its Order and Reasons that denied his motion to dismiss the indictment.  Counsel included the district court's opinion in the Record Excerpts on appeal.

What's more, as authority for his argument in favor of means-ends scrutiny, Peterson cited the Fourth Circuit's 2017 decision in Kolbe v. Hogan, which upheld Maryland's ban on semiautomatic rifles and which was abrogated by Bruen.  Kolbe was reaffirmed by Bianchi v. Frosh, which the Supreme Court reversed and vacated for reconsideration in light of Bruen.  The Fourth Circuit reaffirmed Bianchi in what is now styled , which is now before the Court and which has been relisted for Friday February 21.

Peterson goes on to argue, "As explained above, using silencers improves accuracy, reduces disorientation after firing, and helps prevent substantial and irreversible damage to users' health."  Unfortunately, while true, nothing of the kind is "explained above," nor is it explained elsewhere in the brief.

The brief argues that suppressors "are (1) commonly possessed by law-abiding citizens (2) for lawful purposes" and "the government's interest in regulating silencers is particularly insubstantial given the infrequency with which they are used in crime."  It continues, "Despite the presence of roughly 1.5 million registered silencers in the United States -- to say nothing of any unregistered silencers -- they are exceedingly rare instruments of criminal activity."

Yet the brief cited nothing to substantiate those claims.  It could have.  According to the American Suppressor Association, there are actually 3,613,983 registered suppressors as of January 2024.  Ronald Turk, ATF Associate Deputy Director, wrote in 2017 that "silencers are very rarely used in criminal shootings. Given the lack of criminality associated with silencers, it is reasonable to conclude that they should not be viewed as a threat to public safety necessitating NFA classification and should be considered for reclassification under the GCA."  And Paul A. Clark's Criminal Use of Firearm Silencers concluded that "the data indicates that use of silenced firearms in crime is a rare occurrence, and is a minor problem."

Counsel could have done a quick internet search and found further legal arguments and empirical information in my article Firearm Sound Moderators: Issues of Criminalization and the Second Amendment.  The article includes information from the medical community about the harmful auditory effects of shooting firearms, even with ear muffs, and the need to reduce the noise at the source.

According to CDC research at a shooting range published in 2011, "The only potentially effective noise control method to reduce students' or instructors' noise exposure from gunfire is through the use of noise suppressors that can be attached to the end of the gun barrel."  While published after the briefs were filed, the following statement by the audiology community published in 2024 is significant: "The American Academy of Otolaryngology-Head and Neck Surgery endorses the use of firearm suppressors as an effective method of reducing the risk of hearing loss, especially when used in conjunction with conventional hearing protective measures."

Not surprisingly, the Biden Administration's brief in Peterson repeated the usual arguments currently being made in Second Amendment litigation: suppressors are not "arms," they are "dangerous and unusual," and even if protected, the NFA's requirements of taxation, registration, and serialization are consistent with Bruen (which, the government delightfully noted, Peterson's counsel did not even cite).

Peterson's counsel did not bother to file a reply brief.  Presumably his client is now serving his two-year sentence in prison for having a "black cylinder" in his safe, harming no one. Indeed, virtually all federal gun control laws constitute classic malum prohibitum, victimless crimes.

The Peterson case was a missed opportunity to have a meaningful constitutional dialogue about whether the Second Amendment protects a firearm device that enhances the right to armed self-defense by reducing harmful noise, blinding flash, and recoil.  The claim that a suppressor is not even an "arm" textually could be applied to any other part of a firearm that increases safety and accuracy but is not absolutely necessary for the bare function of expelling a projectile.  It is time to have a serious discussion about a device that reduces – not actually silences – noise and that would serve the interests that the Second Amendment was designed to protect.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[David Post] More on the Outrageous Eric Adams Deal

[Co-blogger Josh Blackman gets the Eric Adams Affair all wrong]

Co-blogger Josh Blackman disagrees with my take (here and here) that the DOJ's arrangement with Eric Adams is an outrage and a grave threat to those of use who care about liberty.  No, no, no, he says; this is "the sort of thing DOJ does all the time." There's "no 'quid pro quo'" involved, because "there is no bribery if a public act is exchanged for another public act."

He's wrong, and it's not too difficult to demonstrate why.  Here is his argument, broken down into its basics.

First, he observes (correctly) that "the Department of Justice routinely uses carrots and sticks to 'induce' defendants to support DOJ policy objectives." He writes:

More than 90% of federal criminal cases end up in plea bargains. … Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. …  In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form.

All true.

Of course, as he recognizes, Eric Adams is not an ordinary defendant, but a public official, and the conditions he has accepted in return for the DOJ dropping the case against him all refer to his actions as a public official, i.e. actions he is to take as Mayor of NYC.  Blackman asks: Should that matter?

Nope, he says.  "This is the sort of thing DOJ does all the time."

Hmmm. His evidence for that startling proposition is, it turns out, completely non-existent:  one case, United States v. Richmond, in which the DOJ's attempt to condition the dropping of charges against a public official on that official taking a particular action in his capacity as a public official was invalidated by the district court.

Not the strongest foundation for the idea that the DOJ does this "all the time."  

The only other evidence he brings forward is an article written on the Lawfare website by legal scholar Seth Tillman.

That's it, you ask? Yes, that's it.

So I'll ask Josh the same question I asked the commenters on my earlier postings:  If the DOJ uncovers evidence that Amy Barrett has cheated on her income taxes, and convinces a grand jury to indict her, and then offers her a deal:  we'll defer prosecution (but keep the possibility open), as long as you vote in the government's favor in all cases coming before the Supreme Court.

You're OK with that? Is that the sort of thing the DOJ does "all the time"? If you're not OK with that (and I sure hope you're not), how is that different from what's happening here?

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[Josh Blackman] Homer Simpson: "No matter how big of an idiot I am, I can never lose my job. I'm like a Supreme Court Justice."

The Simpsons premiered when I was in Kindergarten. I remember watching the Christmas Special in December 1989 on my TV with rabbit-ear antennas and a manual channel dial--no remote control. (We wouldn't get cable till I was in the Fourth Grade.) Nearly four decades later, The Simpsons is still on. I admittedly stopped watching the show in the late 1990s, but from time to time a clip is relevant.

This one provided just enough comic relief (at 1:31):

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[Josh Blackman] Today in Supreme Court History: February 17, 1801

2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.

Thomas Jefferson

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[Eugene Volokh] May Officials Exclude Journalists from Press Events Based on Disapproval of Journalists' Speech?

[It's complicated.]

"The White House says it will limit Associated Press journalists' access to the Oval Office and Air Force One," because the AP refuses to go along with the White House's insistence that the Gulf of Mexico be called "the Gulf of America." Back in 2009, the Obama Administration tried to exclude Fox News from a press pool interview with an Administration official. Does that violate the First Amendment? A few thoughts:

[1.] The Administration has no First Amendment obligation to provide any press conferences or interviews. The question, though, is whether, once it starts doing that, it may exclude the press based on its viewpoint, or on its supposedly unfair coverage, or on its use of terms that are seen as expressing a viewpoint.

[2.] It seems pretty clear that government officials can choose—including in viewpoint-based ways—whom they will sit down with for interviews. The President may choose to give interviews to journalists whose views he likes, and to refuse to speak with those whose views he dislikes. Indeed, a government official may even order employees not to talk to certain reporters, without thereby violating the reporters' rights. Baltimore Sun v. Ehrlich (4th Cir. 2006). (That decision didn't discuss whether such an order may violate the employees' rights, but that's not really at issue in the current controversy.)

Even precedents which have recognized some journalist rights to access press conferences have made this clear. "Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged. It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all." Sherrill v. Knight (D.C. Cir. 1977).

[3.] It also seems pretty clear that government officials, even in large press conferences, can choose to ignore questions that express views they dislike, or to ignore questioners who have expressed those views. TGP Communications, Inc. v. Sellers (9th Cir. 2022) recognized this in stressing that "Permitting Conradson to attend press briefings pending resolution on the merits" (something the court did order) "would not prejudice Appellees because no one would be obliged to speak with him." And that's just a special case of the broader proposition, recognized in Minn. State Bd. for Comm. Colleges v. Knight (1984), that

Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues.

[4.] This having been said, there are precedents (Sherrill, TGP, and John K. Maciver Inst. for Public Policy v. Evers (7th Cir. 2021)) that recognize a right not to be excluded based on viewpoint from large press conferences that are generally open to a wide range of reporters. Those precedents treat those press conferences more or less like "limited public fora" or "nonpublic fora"—government property where the government may impose viewpoint-neutral restrictions but not viewpoint-based ones. Under those precedents, reporters may not be excluded from being at the press conference based on their or their organizations' viewpoints, though again the government has no obligation to answer their questions.

[5.] But what about in-between events, which are open only to a small set of reporters? Air Force One apparently has 13 press seats, and I take it the Oval Office is likewise limited.

John K. Maciver Inst. seems to suggest that even for such events, reporters can't be selected in viewpoint-based ways: The appeals court there treated even a gathering with select reporters—"an invitation-only, limited-access press event"—as a nonpublic forum, where viewpoint discrimination is forbidden. And this was so even as to the governor's press briefings, "which are limited to an even smaller group of invited members of the press" than the already "limited-access press conferences and other press-exclusive events to which only some members of the press are invited." ("Because this was a small-scale event, hundreds of other journalists and media personnel were also not invited to attend.")

I'm not sure this is right: I would think that when "only some members of the press are invited" the government official should be able to pick and choose those with whom he wants to have a conversation. They seem closer to one-on-one interviews—where, recall, the official can pick and choose whom to talk to based on their viewpoints—than to large press conferences where most of the reporters in any event just watch and listen, and don't get their questions answered. And it's hard to know exactly where John K. Maciver Inst. would have drawn the line; I checked the briefs in the case and couldn't figure out how large the press briefings there were, and the court didn't have to discuss the issue in detail because it concluded that the governor's criteria were in any event viewpoint-neutral.

[6.] So I think that for Air Force One and Oval Office appearances, the best I can say is that the First Amendment analysis is unsettled (especially since all the cases I cite above, except Minn. State Bd. of Comm. Colleges v. Knight, are just federal appellate cases, not Supreme Court cases; I've also deliberately focused on the more influential federal appellate decisions, rather than the less influential federal trial court decisions). But that's just my tentative analysis; I'd love to hear what others think.

Note that, as a policy matter, I think the exclusion of the AP is unsound. That's partly because I think their position on the Gulf question is at least defensible and likely correct. But I also think that even if the AP were clearly mistaken on it, that would be a pretty poor justification for excluding an important news organization whose work has many millions of American readers. In the paragraphs above, though, I'm focusing solely on the constitutional question.

For a more definite view than mine, see FIRE's recent statement on the controversy.

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[Josh Blackman] Trump Administration Appeals Special Counsel Case to SCOTUS—No, Not The Jack Smith Case.

[There are two sides to the constitutional crisis coin: if the president seeks a timely appeal, courts should consider those appeals in a timely fashion.]

On Thursday, I wrote about the case of Hampton Dellinger, who served as the sole director of the Office of Special Counsel. (I use the past tense quite deliberately.) This position has nothing to do with DOJ special counsels, like Jack Smith, who are appointed to investigate the executive branch. Dellinger's position concerns civil servants, whistleblowers, the Hatch Act, and other employment-related matters. Trump removed Dellinger from office.

The District Court entered an "administrative stay" ordering Trump to allow Dellinger to remain in office. The D.C. Circuit did not allow the government to appeal the administrative stay. Then the District Court entered a Temporary Restraining Order, requiring Trump to continue recognizing Dellinger as the Special Counsel. Generally, a TRO lasts for fourteen days, and is not appealable. Courts can only grant a writ of mandamus to dissolve a TRO.

A divided panel of the D.C. Circuit declined to dissolve the stay. The majority found that the opinion was not subject to immediate review. Judge Katsas dissented. He found the order should be subject to immediate review, especially where it arguably infringes on the President's removal power. Katsas points out that in past cases, removed officers sought to challenge their removal by seeking backpay. There is no recorded case where a federal court ordered the reinstatement of a removed officer. Moreover, the injunction seems to squarely run against the President, as it requires him to recognize Dellinger as the head of the department, even though Trump has appointed someone else. There is a long-running dispute under Mississippi v. Johnson about whether the federal courts have the power to enjoin the president. This case screams for urgent appellate review, but the D.C. Circuit said "Come back in two weeks."

The Trump Administration has now filed its first emergency application to the Supreme Court. Acting Solicitor General Harris lays out the stakes:

Until now, as far as we are aware, no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement. Yet the district court remarkably found no irreparable harm to the President if he is judicially barred from exercising exclusive and preclusive powers of the Presidency for at least 16 days, and perhaps for a month. See Federal Rule of Civil Procedure 65(b)(2) (authorizing courts to extend TROs so that they last up to 28 days). And, when the United States sought a stay or, alternatively, mandamus, the D.C. Circuit issued a 27-page decision denying relief late on Saturday night, over Judge Katsas's dissent. App., infra, 33a-59a. . . .

This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will. "Where a lower court allegedly impinges on the President's core Article II powers, immediate appellate review should be generally available." App., infra, at 52a (Katsas, J., dissenting). Yet the D.C. Circuit majority described "[w]aiting two weeks" to exercise the executive power vested by Article II as "not so prejudicial." Id. at 41a. If that reasoning is allowed to stand, it is hard to conceive of any TRO that would trigger appellate review. Such a ruling risks further emboldening district courts to issue TROs enjoining the President from undertaking myriad other actions implicating executive powers.

I'm sure the narrative will be that Trump is the one flouting the rule of law. But the District Court issued an "administrative stay" (of what I do not know), and then issued a non-appealable TRO, that constrains the court removal power. The D.C. Circuit twice declined to review an urgent appeal.

The "constitutional crisis" coin has two sides. On one side, the executive branch is expected to follow adverse court rulings. But on the other side of the coin, the judiciary is expected to allow the President to promptly appeal those adverse rulings. It cannot be the case that one court can strangle the executive branch for two weeks without any sort of appeal rights. Both sides have to play the game. There cannot be unilateral disarmament. And as the Acting SG points out, there is a "trend" of such rulings:

That is no mere hypothetical. The district court's order exemplifies a broader, weeks-long trend in which plaintiffs challenging President Trump's initiatives have persuaded district courts to issue TROs that intrude upon a host of the President's Article II powers. A district court in New York issued an ex parte TRO requiring that access to certain Treasury Department data be limited to "civil servants" and be de-nied to "political appointees." New York v. Trump, No. 25-cv-1144, 2025 WL 435411, at *1 (S.D.N.Y. Feb. 8, 2025). A district court in the District of Columbia issued a worldwide TRO that prohibited the government from "suspending, pausing, or other-wise preventing the obligation or disbursement" of any "federal foreign assistance award that was in existence as of January 19, 2025." AIDS Vaccine Advocacy Coali-tion v. United States Department of State, No. 25-cv-402, 2025 WL 485324, at *7 (D.D.C. 2025). Many other district courts have issued universal TROs that sweep far beyond the parties to those cases and effectively enjoin the President's Executive Or-ders even before agencies have decided how to implement them.1

None of these cases, you'll note, arose from the Fifth Circuit. As best as I can recall, district judges in Texas routinely stayed their injunctions to permit appellate review. Not so here.

Harris asks the Court to vacate the TRO, or in the alternative, grant an "administrative stay."

Let's talk turkey here. The "administrative stay" is the ballgame. If the Court denies relief here, the fourteen days will run, and the case can proceed through the usual appellate process. All too often, the Court will say that relief at this early juncture is inappropriate, but we reserve the right to step back in at some future time. I'm sure the Court will be inclined to say that here, especially since Justice Barrett has complained about administrative stays. She is loathe to consider a constitutional question until the issues are fully developed. And even when they are fully developed, she faults lawyers for not laying out comprehensive constitutional theories. It's caution all the way down.

What about the Chief Justice? In a previous lifetime, White House Attorney John Roberts would have personally walked over to Hampton Dellinger's office and changed the locks. But not now, Roberts cannot be seen as giving into to Trump's DOGEing of the federal government.

I think the Court denies the administrative stay by a 5-4 vote, with Roberts and Barrett in the majority. There will be a short statement urging the lower courts to move with promptness, but stating that relief is not appropriate at this time. Barrett will write a concurrence chastising the lower courts for issuing administrative stays of executive orders, and then declining to stay their rulings. But she will say the issues are not clearly defined enough at this point for the Supreme Court to intervene. Justice Kagan might even join Barrett to give her some backup because why not. Roberts will say nothing more because he doesn't have to. We will get a full-throated dissent from Thomas, Alito, Gorsuch urging the Court to overrule Humphrey's Executor. Justice Kavanaugh will also dissent, suggesting that the time has come to reconsider Humphrey's Executor.

My predictions are usually wrong, so take them for whatever they are worth.

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[Josh Blackman] Today in Supreme Court History: February 16, 1833

2/16/1833: Barron v. City of Baltimore decided.

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