Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


A Brief History of Judging: From the Big Bang to Cosmic Constitutional Theory

November 27th, 2012

Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Much the same could be said about Cosmic Constitutional Theory by Judge J. Harvie Wilkinson, III, the latest jurist to write about his own constitutional theory—or in Judge Wilkinson’s case, a self-professed lack of a constitutional theory.

Judge Wilkinson views all theories of constitutional laws as “cosmic” in the metaphyhsical sense. “[T]he search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.” Living constitutionalism, the hallmark of the Warren Court, is “activism unleashed.” Originalism—in many respects a moderating-jurisprudence born in reaction to living constitutionalism—to Judge Wilkinson is merely “activism masquerading as restraint.” Pragmatism—the approach endorsed most prominently by Judge Posner—is “activism through antitheory.” Constitutional theories are activism all the way down. So, if living constitutionalism, originalism, and pragmatism are out, what is the best judicial philosophy? To Judge Wilkinson, that is the wrong question. In his view, the ideal jurisprudence is none at all. “So what is my theory?” he asks, rhetorically. “The answer is I have no theory.”

But it is not quite that simple. The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.

Elsewhere, Judge Wilkinson has written that “[w]hen a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.” Judge Wilkinson punts on these important questions quite unconvincingly: outlier “[d]ecisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”

To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and as Gerard Magliocca put it, somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Justice Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans—will happen, and the Supreme Court will confront them.

More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.

And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”

Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.

This review is available on SSRN.

1, 2, 3: The First and Second Amendments Meet Third Dimensional Printing

October 22nd, 2012

Leading up to, and during the time of the American revolution, it was fairly common for people to make their own musket balls, and maybe even and rifle their own muskets. Today, that is not possible. In the age of mass production, the only way to realistically create a firearm is in a factory, or really a series of factories, that can create and assemble a series of specialized parts (if you think building a pencil is complicated, imagine all the work that goes into creating a gun!).

Today, it is simply impossible for an individual to create a firearm at home. People might be able to reload ammunition, but that still requires using existing shell casings manufactured elsewhere. This fact makes firearm laws viable. If a government wants to place a restriction on the nature and distribution of firearms, it can closely monitor and inspect those that manufacture and distribute the weapons.

But that may not always be the case. 3D Printing holds the potential of creating actual, working, functional three-dimensional objects using simple raw materials. At the present, the technology is somewhat limited, though it can already create items with moving parts–such as a pair of scissors. One of the biggest present fears concerns intellectual property piracy. If you thought illegally downloading music or videos or movies on a Torrent was bad, imagine if could download the design for a pair of Nike shoes, or a Rolex watch, or an iPhone, and print one up in your home. The Pirate Bay already offers a way to share designs of objects for 3D Printers. Gerard Magliocca’s has series of posts on IP issues concerning 3D printing.

Already, this concern has led to one patent that would enable DRM in 3D printing.

US patent 8286236, granted on 9 October to Intellectual Ventures of Bellevue, Washington, lends a 3D printer the ability to assess whether a computer design file it’s reading has an authorisation code appended that grants access for printing. If it does not, the machine simply refuses to print – whether it’s a solid object, a textile or even food that’s being printed.

Who else will oppose 3D Printing? The manufacturing sector. The ability to create items at home has the potential to cripple, if not destroy manufacturing jobs. One point that may be lost on some, is that 3D Printers will reduce the need to outsource manufacturing. In fact, it may actually create jobs in the United States, where 3D Printing factories can produce items cheaply, and the items can be transported at a lower cost domestically.

Now there are a few benefits. One, it could enable countries without sophisticated manufacturing sectors, or the means of access to trade, the ability to create goods and products to improve the welfare of its people. That could be a serious international human rights boom. What if malaria nets could be created with a 3D Printer in Sub-Saharan Africa? Or if a water filtration system could be generated in a place without access to clean water? Or perhaps a solar powered generator? The list can go on and on.

But then, there is the gun. What happens if a 3D Printer can create a gun? And, a number of groups are working on this.

The WikiGun from, now known as wants to do this. At 2:15, the video says, “The world no longer must rely on . . . regulations for certain objects.” That means gun control laws.

The site actually created an AR-15 lower using 3D printing.

Is this legal? The FAQ section has this nonsensical legal statement:

Since its inception, it has been legal in the USA to fashion your own firearm, and to talk about doing so. More precise legalities are that it is legal to produce any category of weapon you could ordinarily legally own, so long as you are not providing it for sale or are not prohibited from possessing firearms in the first place. Everything else is free speech, ladies and gentlemen.

The video has some conspiratorial tones about the need to build weapons to combat potential gun control legislation (around 6:30)–somewhat troubling.

Here’s the director of the Wikigun project by the way, holding up an AK-47 and Bastiat’s The Law (I would highly recommend both!).

Here is a .22 caliber rifle manufactured with 3D Printing.

And it turns out the founder is a second year law student at the University of Texas School of Law. Here is a less ominous photo of Texas 2L Cody Wilson.


The Times Bits Blog interviewed Wilson:

 Cody Wilson, a law student at the University of Texas, is in the process of building a completely functional printed gun. “We hope to have this fully tested and put the files online in the next couple of months,” said Mr. Wilson, who runs a Web site called Defense Distributed.

He calls the gun the Wiki Weapon. In a video explaining the project’s goals, he describes the Wiki Weapon as the world’s first “3-D printable personal defense system.”

“What’s great about the Wiki Weapon is it only needs to be lethal once,” Mr. Wilson says in the video, in a monotone voice. “We will have the reality of a weapons system that can be printed out from your desk. Anywhere there is a computer, there is a weapon.”

The Texas Lawyer also interviewed Wilson:

 “I didn’t know I would ever do anything like this,” says Wilson, a self-described civil libertarian. A former English literature major, he says he was on the phone with some more tech-minded friends, trying to figure out what they could do to live up to their libertarian principles. The question raised, he says, was, “How can we contribute to creating those kinds of realities we value, civil libertarian ideals?”. . .

“Everyone has got their opinion about what the Second Amendment really means, what it intended,” Wilson says. “I get involved in rhetorical battles about the second amendment; constitutional law has really helped me.”

And he’s applying for an FFL?

But first, Wilson says, he checked in with the Austin office of the Bureau of Alcohol, Tobacco, Firearms and Explosives. He says his group will set up a limited liability company and obtain the federally required gun manufacturing licenses

It seems that the company that was leasing the 3D Printer to the Wikigun project has stated that they would not permit them to build a gun, and are repossessing Wilson’s printer.

So there are several legal issues that may come into play here that concern the First and Second Amendments.

First. Assume 3D Printing gets to the stage where it is possible to upload to the web plans for a firearm, and anyone with an affordable 3D Printer can print one out at home. Could the government ban these plans? Is there any First Amendment interest in the designs and blue prints? Is there any precedent for Congress banning design specifications? Blueprints of bombs? The anarchist cookbook? Could Congress force 3D Printers to install some kind of DRM software that would not allow it to print guns? What else would the DRM ban? Is there any overbreadth challenge to limitations on what a person can create? What if someone hacks these DRM?

Second, and relatedly, would banning these designs in any way infringe on Second Amendment rights? Now in order to create firearms, manufacturers today need to apply to a whole host of permits and a Federal Firearm License. Could individuals seek to apply for those permits? Or would the activity be banned altogether? My guess is that the activity would likely be banned altogether. Though, the black market for firearms would be flooded. If people can create cheap and affordable firearms, why would anyone drop hundreds, if not thousands of dollars on a gun. And that means no background checks either. Some serious issues to think about.

This Wired Article addresses some of the legal issues.

Legally, however, Guslick did print a firearm. Well, maybe. Under the Gun Control Act of 1968, the receiver is what determines whether or not a gun is a gun. No receiver, no gun. For the nation’s gun lobbies — pro- and anti-gun — that may present a problem. . .  .

“The laws were written assuming people could make their own guns … the law still does regulate and restrict that,” Daniel Vice, senior attorney at the Washington-based Brady Center to Prevent Gun Violence, tells Danger Room. Guslick likely didn’t violate any laws surrounding the manufacturing of the gun without a license, as it’s only for personal use. If he attempted to sell the pistol, or opened up a factory producing the weapons, he’d need authorization from the government.

But Vice said the weapon could possibly be illegal under the Undetectable Firearms Act of 1988, which bans the possession and manufacturing of firearms that can pass undetected through airport security. But U.S. law is unclear whether this would apply to a gun with metal parts. The Glock pistol, for example, uses plastic parts.

The National Rifle Association did not comment by press time. A representative from the Second Amendment Foundation would not speak on the record, either.

Another article in Forbes cries the “End of Gun Control“!!!!

Dave Kopel thinks it may be okay:

According to Dave Kopel, the research director of the Independence Institute, it is legal to create pistols, revolvers and rifles at home, although some states are stricter than others. As long as an inventor isn’t selling, sharing or trading the weapon, under federal law, a license isn’t necessary. Homemade creations also don’t need to be registered with the US Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and are legal for use by the individual who created the weapon. . . .

But Kopel expects 3D gun printing to remain a hobbyist pursuit, at least in the United States.

“If this thing does work I think it would be great for the people in Syria to have a 3D printer so they could start making their own guns and start resisting the mass murderer Assad,” said Kopel. “The guy who is robbing a 7-Eleven isn’t going to buy a 3D printer.”

And apparently the ATF is already on top of this.

Under most circumstances, it is not illegal to build your own gun, but it has been pretty difficult. Ginger Colbrun, a spokeswoman for the Bureau of Alcohol, Tobacco, Firearms and Explosives, said people had made firearms out of pens, books and belt buckles. But those contraptions and conventional firearms require a certain amount of knowledge and skill.

Ms. Colbrun said the agency was keeping a close watch on 3-D printers. “A.T.F. always tries to stay ahead of the illegal activity and the novel firearms trafficking schemes, without impinging on individuals’ rights,” she said.

LOL. Sorry. Being a spokesperson for ATF must be almost as hard as being a spokesperson for the TSA. I digress.

But monitoring whether people make their own guns on a 3-D printer is going to be impossible, barring sticking an A.T.F. agent in every home. It’s also hopeless to try to build a technology into these printers that prevents people from printing a gun. One project mentioned in Mr. Wilson’s video, called the RepRap printer, will be capable of replicating itself by printing other 3-D printers.

After committing a crime with a printed weapon, a person could simply melt down the plastic and reprint it as something as mundane as a statue of Buddha. And guns made of plastic might not be spotted by metal detectors in airports, courthouses or other government facilities.

I’ll write about this at some point in the near future. Just some food for thought for now.


So what happened after Boumedienne that the Supreme Court no longer wants to get involved?

June 11th, 2012

Could it be that the popular opposition to the War on Terror and Guantanamo disappeared after the 2008 election–where the current President’s policies are not much different than the previous President’s.

As Gerard Magliocca noted:

The President, by the way, also doesn’t talk about closing Gitmo anymore. That was so 2008.

Not even a single dissent from the liberal justices? A 9-0 rebuke of the entire series of detainee cases? Maybe the lack of any meaningful movement has sapped the Court’s willingness to defy the other branches. Cf. Health care.

ACA Black Swarn?

April 3rd, 2012

Gerard Magliocca links to a post he wrote in January 2010, analyzing Balkin’s early predictions about ACA:

Jack Balkin has a post outlining his view that the individual health care mandate is constitutional.  He closes with this:

“I assume that as soon as the health reform bill is passed, people will challenge the individual mandate in court. I doubt these challenges will succeed. But stranger things have happened in constitutional law, and I’ve seen some of them in the past twenty-five years I have been teaching in this area. I will, however, say this: The Supreme Court would have to significantly alter its post-New Deal doctrines to strike this tax down. It could not just apply the law as it currently exists; it would have to change the law markedly. At present, I do not think the votes are there for such a constitutional revolution.”

The problem is that Balkin provides no explanation about why or when “stranger things happen” in constitutional law.  This sort of improbable event — a black swan — is treated as random.  That is simply wrong.

John Bingham Didn’t Want Right to Keep and Bear Arms to Apply to Non-Citizen

February 27th, 2012

Gerard Magliocca identifies an odd twist: to offer non-citizens RKBA, you have to ignore the original meaning.

One theme that emerges from an examination of John Bingham’s understanding of the Fourteenth Amendment is that: (1) he wanted the Bill of Rights to apply to the States; and (2) he thought only citizens were entitled to the protections of everything in the first eight amendments. Non-citizens were entitled to due process and equal protection, but not to something like, say, the right to bear arms. The Supreme Court, though, has completely obliterated Section One’s distinction between citizens and persons by incorporating most of the Bill of Rights through the Due Process Clause which, of course, applies to all persons.

Nevertheless, there now appears to be a movement to resurrect Bingham’s distinction as between legal residents (citizens and aliens) and illegal residents. In other words, courts seems hesitant to say that illegal aliens have, for example, a right to bear arms or certain other protections in the Bill of Rights even though the right is recognized as fundamental under the Due Process Clause.

This is the implication Justice Thomas (and Gura, et al) failed to really confront in McDonald. If the right to keep and bear arms was extended to the state through the Privileges or Immunities Clause–which applies only to citizens, not persons–then the right would not protect non-citizens (such as illegal alens).