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New Article: The Modern Militia
Read more: New Article: The Modern MilitiaI have posted my new article, The Modern Militia, to SSRN. Here is the abstract: Twentieth-century legal reforms of the military have obscured the distinction between an “army” and a “militia.” For the Framing generation, the distinction between these two kinds of land forces was sharp. An “army” consisted of regular, professional troops, while the…
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Should State Officials Receive Qualified Immunity for Creatively Resisting Bruen?
Read more: Should State Officials Receive Qualified Immunity for Creatively Resisting Bruen?Unhappy with the Supreme Court’s decision in New York Rifle & Pistol Association v. Bruen, New York and New Jersey have passed laws designed to nullify Bruen’s practical effect. California and Maryland look set to join them. Before Bruen, these states denied most residents the ability to publicly carry handguns by making licenses to carry…
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Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules
Read more: Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property RulesWhen the Supreme Court required public school desegregation in Brown v. Board of Education, some Southern jurisdictions resisted through legal chicanery. In Virginia, the Prince Edward County school district “closed” its public schools to avoid integration, while setting up government-funded private schools that were “private” in name only. The Supreme Court was not amused. In Griffin v.…
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A Response to Professor Cornell on the Second Amendment
Read more: A Response to Professor Cornell on the Second AmendmentHistorians and legal scholars are presently debating the historical scope of the right to bear arms. One of the most prominent participants in this debate, Professor Saul Cornell, has a recent post on the Originalism Blog criticizing my work. But his post does not respond to most of the objections that I have raised against his arguments,…
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Half a Precedent Is No Precedent At All
Read more: Half a Precedent Is No Precedent At AllWhy the application of military law to half-pay officers in Britain from 1749 to 1751 does not support the perpetual application of military law to retirees of the Armed Forces of the United States In Larrabee, the D.C. Circuit supported its holding that military retirees are subject to status-based military law jurisdiction with references to…
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Three Statuses, not Two: Why Larrabee Is the Wrong Rule for Nonprofessional Soldiers
Read more: Three Statuses, not Two: Why Larrabee Is the Wrong Rule for Nonprofessional SoldiersIn recent years, the military has court-martialed military retirees for conduct that occurred off base and after retirement. These courts-martial involve civilian offenses (e.g., sexual assault) when the servicemen have essentially returned to civilian life. Congress has authorized such prosecutions under the Uniform Code of Military Justice. But there have been challenges to whether Congress…
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New York After Bruen
Read more: New York After BruenLast Thursday, the Supreme Court held in New York State Rifle & Pistol Association v. Bruen, that New York’s policy of limiting licenses to carry pistols to those who can show “proper cause” is unconstitutional under the Second and Fourteenth Amendments. I will have more to say in the coming days about some of the…
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The Myth of the “Massachusetts Model”
Read more: The Myth of the “Massachusetts Model”The title of Saul Cornell’s recent blog post—The Myth of Non-enforcement of Gun Laws in Nineteenth Century America—leaves the impression that I will argue that nineteenth-century gun restrictions went unenforced. I will make no such argument. In some places, laws regulating the carrying of weapons were enforced strictly. In others, they were ignored. Some authorities…
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Guns at the Airport: Madison Cawthorn and the Increase of Firearms Detected by TSA
Read more: Guns at the Airport: Madison Cawthorn and the Increase of Firearms Detected by TSALast week, airport security screeners detected that Rep. Madison Cawthorn was carrying a loaded 9mm handgun. Rep. Cawthorn was not the first Member of Congress caught with a gun at the airport. (For another recent example involving Rep. Ross Spano (R-Fla.) see here.) Nor was this the first time that Rep. Cawthorn brought a gun…
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Sovereign Immunity and Military Federalism
Read more: Sovereign Immunity and Military FederalismAre the federal war powers so absolute and exclusive that they include the power to subject state governments to nonconsensual suits for monetary damages? That was the issue last Tuesday when the Supreme Court heard oral arguments in Torres v. Texas Department of Public Safety. Le Roy Torres was a Texas State Trooper who also…
Standing His Ground: A legal blog on self-defense, gun control, and the Second Amendment
by Robert Leider
Standing His Ground 