Much as some wish passionately that Heller never happened, that the Second Amendment would disappear, that Bruen didn’t make it worse and even less coherent, the reality as we find it today is that Americans have a fundamental individual right to bear arms and the limits on that right are, well, far more limited than Nino Scalia thought when he wrote his errant paragraph in Heller.

These are not the subjects of argument here, because this reflects the current state of the law and, if one enjoys their constitutional rights, one can’t deny the constitutional rights of others that one doesn’t like as much. Continue reading →

The headline in the New York Times is pure Larry Tribe, very important Harvard con law prof emeritus (as opposed to Dersh, who taught crim law).

Why I Changed My Mind on the Debt Limit

Of the myriad things that could possibly matter, why Tribe changed his mind does not make the list. But if he has an actually sound reason why the debt limit would be unconstitutional under Section 4 of the Fourteenth Amendment, that could actually be interesting. After all, much as he’s demonstrated his gymnastic willingness to bend and twist with the latest progressive fashion, he was still a prawf, even if at Harvard. So did he have anything worthwhile to offer this time in contrast to his genius last time? Continue reading →

Who does it persuade? Who does it inconvenience? Who does it harm? What does it accomplish?

https://twitter.com/RebsBrannon/status/1654973123916095488

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When I first read the words, I knew Lyrissa Lidsky was right. They’ve stuck with me ever since.

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Ross Douthat has a lengthy and interesting column arguing that the progressive revolution is winding down, and its legacy will be of less consequence in journalism than it will be in academia. In the course of getting there, he makes a point that has long been of concern. Continue reading →

ONE: A conversation that almost certainly didn’t happen.

SHG: Hey Chris, heard you’re planning to join the TV and film writers on strike in LA?

Chris: Yeah, I’m gonna do designer drugs and throw cans of soup at art to show my solidarity.

SHG: Hmm, that’s one way to do it. But just so you know, AI can write your columns if you run off to LA.*

Chris: What? You’re saying a robot can replace me? Continue reading →

No New Yorker who rides the subway is unfamiliar with mentally ill, homeless people on platforms or inside subway cars screaming at people, behaving erratically, posing the possibility of violence. We mostly back away and don’t look. We sometimes change cars to avoid them.

When they put on a show or sit in their sad spot holding a sign that they’re hungry, some will throw them some change, but most walk by giving them a wide berth. They smell bad. There are too many of them. We can’t save them, or at least not them all. And we go on with our day. Continue reading →

Back when Chief Justice John Roberts questioned how diversity would contribute an educational benefit to physics during oral argument in Fisher v. University of Texas, I argued that every discipline, physics included, would benefit from having diverse students bring their perspectives to the issue. Many here scoffed at my take, arguing that physics was physics, so different perspectives changed nothing about science.

Since then, the situation has morphed into one that wraps diversity, along with its fellow travelers inclusion and equity, up with meaningless jargon in such a way as to demonize any doubt as racist and sexist. No longer is the issue limited to the approaches that might be brought to solving a question based upon differing experiences, views and perspective, but that one’s having the ideologically correct identity makes one’s solution more valid than a white heterosexual male. What I argued was a sound approach within the limits of reason has not become dogma that ignores merit and validity in favor of the victim hierarchy. This is unsustainable. Continue reading →

Cardozo law prof Kate Shaw and author Julie Suk have resurrected the Equal Rights Amendment as a cure for many of the contentious culture war battles in a New York Times op-ed. Recognizing, no doubt, that there is no chance whatsoever that the ERA, if approved by Congress today, a far-fetched notion, would receive the approval of three-quarters of the states, they argue that it should be deemed approved by glossing over the insurmountable argument that, by its own terms, it failed to achieve approval.

The debate today is over who decides how to treat both deadlines and rescissions. The Constitution’s provisions on amendment are silent on these questions. What Article V of the Constitution does say is that Congress is in charge of proposing amendments that it deems necessary. It also empowers Congress to choose the “mode of ratification,” a power that is understood, even by the Supreme Court, to include control over time frames. If the deadline power belongs to Congress, shouldn’t the power to change any deadlines it imposes — as well as the power to refuse to recognize rescissions — also lie with Congress?

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Joe Tacopina’s cross-examination of E. jean Carroll, who is suing Trump for battery and defamation based upon a sexual assault and rape that she alleges occurred in 1995 or 6, was characterized as pretty harsh.

The fireworks started from the first moment, when Tacopina started, “Good morning, Ms. Carroll.” She did not respond in kind, but instead remained silent—which was appropriate, as there was not question pending. Mr. Tacopina, visibly perturbed, raised his voice and repeated, “Good morning, Ms. Carroll!” At that point, she finally responded, “Good morning.”

It went downhill from there.

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We’re all familiar with the notorious “trial tax” (or plea disount, according to which table you sit at in the courtroom), but what about the “recidivism premium“?

The “recidivist premium” refers to the practice of imposing more punishment on recidivists—or repeat offenders—than if they were first-time offenders.Consider two eerily similar criminal acts. Both offenders, in the same city, pull a gun on a person withdrawing cash from an ATM. After taking the cash, both offenders strike the victim on the head with a butt of the gun. Both victims receive treatment for a concussion and quickly recover. The offenders are both charged with the same crimes, are convicted at trial, and are facing sentencing by the same judge. Adding no other information, we would think that the two perpetrators of these criminal acts should receive similar sentences. Continue reading →