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On Saturday, March 1, I will be speaking at a symposium of the Tennesee Law Review on the next frontiers of the Second Amendment. I will be talking about the First Amendment, Second Amendment, and 3D Guns.

Here is the overview and schedule of the event.

Symposium: New Frontiers in the Second Amendment

In the wake of the Supreme Court’s recognition of personal Second Amendment rights in Heller and McDonald,as well as the recent national debates over gun control, questions have arisen as to exactly what rights the Second Amendment protects and what rights it ought to protect.

The Tennessee Law Review Symposium will include papers and presentations from varied viewpoints discussing the following topics:

· The nature and extent of possible Second Amendment protection of the right to carry firearms.
· The categories and types of weapons that may carry Second Amendment protection.
· The existence, extent, and scope of penumbral, unenumerated Second Amendment rights, such as the purchasing and transportation of firearms; the purchasing, possession, and transportation of ammunition; and protections for firearm-related locations such as firing ranges and gunsmith shops.
· The extent to which “chilling-effect” doctrine may apply to Second Amendment rights, including potential constitutional limitations on the taxing of firearms and ammunition.
· The validity or invalidity of gun ownership restrictions based on an individual’s status as a felon in light of the proliferation of regulatory crimes designated as felonies.
· The extent to which the Second Amendment sheds light on other constitutional rights, enumerated or unenumerated.

Time	Topic	Participants
9:15	Introduction	Cottone and Reynolds*
9:30–10:30	State Regulation and the Second Amendment	O’Shea* and Halbrook*
10:30–11:30	The Second Amendment in the Academy	Wolitz,* Reynolds, Denning, Kopel, O’Shea, Pratt, and Blackman
11:30–12:45	Lunch
12:45–2:45	Defining the Reach of Heller and McDonald: Second Amendment Penumbra and First Amendment Corollaries	Kopel,* Pratt,* Denning,* and Blackman*

Perhaps most importantly, during my trip I learned that the Sun Sphere from the 1982 World’s Fair is in fact real, and it is not full of wigs.

The sun sphere is not filled with wigs pic.twitter.com/VwAFGvhW2Y

— Josh Blackman (@JoshMBlackman) February 28, 2014

I’m not an expert on campaign finance laws, but I’m pretty sure someone running for Congress is required to obtain a whole host of information about the donor, including who they work for, and provide special language about the compliance of the donation. None of this information appears on Doug Kmiec’s campaign page, which is seeking donations of $35, $50, $100, $201.40, $500, $1776, $2014, and $2600. As far as I can tell, contributions can be made by foreign nationals, corporations, or anyone else. And the page requesting credit card information does not ask for any of the required information. The payment page is hosted by FirstData, which does not appear to be a program set up for campaign donations, but rather regular commercial transactions.

I should note that one of Kmiec’s planks indirectly criticizes Citizens United.

The Supreme Court deserves our respect when it honors the Constitution, but not when it finds it easier to fabricate gun and corporate rights than to respect life and democracy.

Screen shots are below.

 Update: The campaign page has been updated, and seems to request hosts of information, though it is not a form that allows you to submit information. It is just listed as text.

Brad Smith offers this commment:

This has now been corrected on their page. But in doing so, they’ve added this:

“We do not accept corporate monies, even as they have been erroneously permitted by a slight majority of the Supreme Court in citizens United overruling close to 100 years of precedent.”

Here, they share many common misconceptions of Citizens United v. FEC. “Corporate monies” may not be contributed candidate campaigns. And if by “precedent” they mean Supreme Court precedent, the oldest case overruled by Citizens United was Austin v. Michigan Chamber of Commerce, a case from 1990. 20 years of precedent isn’t, in most people’s books, even close to 100 years of precedent. Austin itself did not explicitly overrule, but is widely understood as disharmonious with earlier Supreme Court decisions, including Buckley v. Valeo (1976, Congress may not limit campaign expenditures) and First National Bank of Boston v. Bellotti (1978, right to make expenditures extends to corporations in initiative campaign).

It is also ironic that these plucky volunteers think this is a big deal, since they live in California where corporate contributions ARE allowed in state races.

Beyond that, I note that the campaign prides itself on being an “all-volunteer” effort and notes that it has no salaried personnel. That should be a source of pride. Unfortunately, in today’s world of campaign finance regulation, it is also pretty difficult to do, which is why you make mistakes like not requesting legally required information.

As an admirer of Doug Kmiec, I wish them luck. I suspect that by the end of the campaign these doughty volunteers will have concluded, as so many similarly situated, idealistic efforts before them have, that the campaign finance regulation they think they like now is really part of the problem, not the solution, and part of what prevents, not facilitates, campaigns like this one.

Here is a screenshot:

This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.

And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.

Senator Rand Paul has proposed the “Constitutional Check and Balance Act,” which would “authorizes members of Congress to take the administration to federal court if the president, or any other executive branch official, directs federal agencies to not enforce a provision of law.” A similar provision has been introduced in the House.

Here is the text of the act:

(a) CAUSE OF ACTION AUTHORIZED.—If the Presi-
8 dent or any other official in the executive branch of the
9 Federal Government issues a memorandum or other writ-
10 ten statement directing any official in the executive branch
11 to not enforce a provision of law, a Member of Congress
12 who meets the requirement described in subsection (b)
13 may bring an action for declaratory or injunctive relief in
14 an appropriate United States district court to compel such
15 official to enforce the provision of law.
16 (b) REQUIREMENT FOR ELIGIBILITY.—The require-
17 ment described in this subsection with respect to a provi-
18 sion of law is that the Member of Congress cast a recorded
19 vote on final passage of the version of the bill or joint
20 resolution that enacted the provision into law.

In other words, anyone who voted for the law could sue to make sure that it is enforced.

I wonder whether this may have article III problems if it creates standing in the absence of an injury in fact. This was a similar issue to the one the Court punted when it did not resolve First American Financial v. Edwards (Eugene Volokh has a post on a similar case pending now).

In a new article, Neil Seigel contends that federalism in Windsor was just a “Bickelian devices for managing the processes of constitutional change.” In other words, this does not portend an actual, and important doctrinal change in Windsor. Here is the abstract:

This Article asks what the U.S. Supreme Court’s opinion in United States v. Windsor stands for, and finds that it exemplifies doctrine in motion during a time of social and legal change. According to Chief Justice Roberts, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA) because it inferred animus from Congress’s extraordinary intrusion into an area central to state domestic relations law. Like some commentators, Roberts construed the Court’s emphasis on what might be called “extraordinary” evidence of animus as not impugning the authority of states to ban same-sex marriage. The Article shows that such a reading can account for much of the Court’s language, but not for the opinion as a whole given the Court’s emphasis on DOMA’s purposes, effects, and social meanings — none of which seem limited to DOMA.Justice Scalia read the majority opinion as turning on what might be called “ordinary” evidence of animus. On that interpretation, which many commentators endorse, only a desire to harm same-sex couples can explain denying them the same dignity that opposite-sex couples enjoy by being able to marry. This Article shows that such a reading has force, but that there are limits to its explanatory power given the Court’s emphasis on DOMA’s interference with state decisions to allow same-sex marriage. The opinion resists any dispositive interpretation; it preserves a Delphic obscurity.This Article seeks to understand why the Court’s opinion is written that way by examining its most puzzling aspects: its invocation of state control over domestic relations to qualify its embrace of the equal dignity of same-sex couples; its selective use of state developments in the service of living constitutionalism; and its novel, unnecessary use of the breadth of a federal law as evidence of animus. The Article reads Windsor as an exemplar of a phenomenon that is easily overlooked or misunderstood, but that becomes apparent once doctrine is understood dynamically rather than statically. Windsor is what judicial opinions may look like in times of transition, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such periods, federalism rhetoric — like manipulating the tiers of scrutiny and the justiciability doctrines — may be used as a way station toward a particular later resolution.

For reasons I’ve explained elsewhere, I think the arc of federalism jurisprudence in Justice Kennedy’s opinions from Romer to Lawrence to Windsor (and Bond and a few others) is quite significant. Federalism is not just a means, but a means to an important ends of protecting liberty.

Siegel takes the opposite position:

The Windsor Court’s various invocations of federalism are not attributable simply to Justice Kennedy’s idiosyncratic ways of expressing his commitment to limited federal power and to residual state authority, or to his potential ambivalence about same-sex marriage. Indeed, the voting alignment in Hollingsworth v. Perry37 raises the possibility that Kennedy is no longer the median Justice regarding the constitutional rights of same-sex couples. Rather, the Windsor Court’s uses of federalism rhetoric are probably best understood as reflecting a statesmanlike effort to encourage but not to coerce for the time being—to allow continued deliberation and litigation over same-sex marriage in the states, and to move that deliberation toward greater equality for same-sex couples and their children. The Court’s use of federalism rhetoric as a way station thus shares certain similarities with its failure faithfully to apply the tiers of scrutiny in select equal protection cases and its manipulation of justiciability doctrines.38 As just noted, the Windsor majority itself implausibly declared that Section 3 of DOMA flunked rational basis review. And as explored below,39 certain Justices in the Windsor majority may have responded to prudential concerns in Hollingsworth. The phenomenon identified by this Article is limited neither to Windsor nor to federalism. As the Court is discovering, however, the federalism approach may result in a stronger nudge.

Eventually, I will have the time to finish my article on Kenendy, Windsor, and Federalism. I am somewhat eager to incorporate Bond into the opinion.