Joseph Blocher
Originalism-by-Analogy and Second Amendment Adjudication
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced a novel historical-analogical approach to constitutional decisionmaking. The Court sought to constrain judicial discretion, but Bruen’s originalism-by-analogy has enabled judicial subjectivity, obfuscation, and unpredictability. This Article describes Bruen’s methodology, identifies its challenges, and offers solutions.
Navassa: Property, Sovereignty, and the Law of the Territories
The U.S. acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as property, rather than a piece of sovereign territory. The story of Navassa shows how the concept of property is central to the law of the territories—and, perhaps, a useful tool going forward.
Bans
Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.
Firearm Localism
This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate longstanding and sensible differences between urban and rural gun use and regulation. Doing so would protect rural gun culture while permitting cities to address urban gun violence.
Combatant Status Review Tribunals: Flawed Answers to the Wrong Question
116 Yale L.J. 667 (2006) Read Geoffrey Corn, Eric Talbot Jensen, and Sean Watts's Response, Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher.