Latest article: The National Popular Vote Violates the Colorado Constitution. Denver University Law Review Forum (forthcoming 2020). With Hunter Hovenga.
Latest Court citations:
Federal Circuits: Duncan v. Becerra. No. 19-55376, 2020 WL 4730668 (9th Cir. Aug. 14, 2020). Magazine confiscation law violates the Second Amendment. Opinion includes three pages of the history of magazines, based on The History of Firearms Magazines and of Magazine Prohibition. 78 Albany Law Review 849 (2015).
Association of New Jersey Rifle and Pistol Clubs Inc v. Attorney General New Jersey. No. 19-3142, 2020 WL 5200683 (3d Cir. Sept. 1, 2020). Upholding magazine confiscation. Dissent cites: The History of Firearms Magazines and of Magazine Prohibition. 78 Albany Law Review 849 (2015); The Federal Circuits' Second Amendment Doctrines. 61 St. Louis University Law Journal 193 (2017); Amicus brief on behalf of 7 professors of Second Amendment law, Firearms Policy Coalition, and Independence Institute.
U.S. Supreme Court:
New York State Rifle & Pistol Associationv. City of New York. 140 S.Ct. 1525 (Justice Alito dissenting, joined by Justices Gorsuch and Thomas) (Apr. 27, 2020) "[T]he law was upheld based on what we are told is the framework for reviewing Second Amendment claims that has been uniformly adopted by the Courts of Appeals. See Brief for Second Amendment Law Professors et al. as Amici Curiae 8-9.” “It is true that a lawful gun owner can sometimes practice at a range using a gun that is owned by and rented at the range. But the same model gun that the person owns may not be available at a range, and in any event each individual gun may have its own characteristics. See Brief for Professors of Second Amendment Law et al. as Amici Curiae 10-12. Professors brief.
Espinoza v. Montana Dept. of Revenue, 591 U.S.---, no. 18-1195, pp. 2, 6, 6 n.6 (June 30, 2020) (Alito, J., concurring) (citing Independence Inst. amicus brief, and scholarship of Ind. Inst.'s prof. Rob Natelson).
Rogers v. Grewel, 590 U.S.---, no. 18–824, p. 10, note 3 (June 15, 2020) (Thomas, J., dissenting from denial of cert.) (Regarding an advocate's claim about Sir John Knight's Case from England in 1686: "This assertion has been repudiated by subsequent scholarship. See Kopel, The First Century of Right to Arms Litigation, 14 Geo. J. L.& Pub. Pol’y 127, 135, n. 46 (2016)."
State Supreme Courts:
Gund v. County of Trinity. California Supreme Court. No. S249792. (Aug. 27, 2020). Citing The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement. 104 Journal of
Criminal Law and Criminology 671 (2015).
Rocky Mountain Gun Owners v. Polis. Colorado Supreme Court. 2020 CO 66, at 7 n. 3. (June 29, 2020). "Amici Curiae Colorado Law Enforcement Firearms Instructors Association et al. argue that HB 1224 also burdens the article II, section 13 right 'to keep and bear arms . . . in aid of the civil power when thereto legally summoned.' Because Plaintiffs did not address this theory in their complaint, on appeal, or in their briefing to this court, we do not review it." Which means that this portion of the Colorado right is expressly not judicially nullifed.
Magazine confiscation splits Third and Ninth Circuits: Analysis and history. Reason, Volokh Conspiracy. Sept. 8, 2020.
The Declaration of Independence will never be outmoded, as President Coolidge explained. Equality, inalienable rights, and consent of the governed can be opposed only by reactionaries. Reason, Volokh Conspiracy. July 4, 2020.
Does the Second Amendment prohibit slavery? What Lysander Spooner argued in 1845 became the law of the land in 1868. Reason/Volokh Conspiracy. June 19, 2020.
The pro-slavery origins of American gun control. Complete Colorado. June 14, 2020.
Gun control’s racist history still being written. Complete Colorado. June 9, 2020.
Your NRA’s Deep Connection to Memorial Day. Founded in 1871, the NRA began by dedicating itself to the safety of American soldiers. America's 1st Freedom. May 24, 2020.
How the NRA Helped to Reopen Massachusetts’s Gun Stores. America's 1st Freedom. May 14, 2020.
Preliminary injunction against dysfunctional California ammunition background checks. The law made it impossible for many law-abiding citizens to buy ammunition. Reason, Volokh Conspiracy. Apr. 24, 2020.
Our right to arms faces a death by a thousand cuts. The long-term strategy of the gun ban lobby. Colorado Politics. Apr. 8, 2020.
Masks For All: Sensible and Helpful. Wearing improvised masks in public will help defeat the viral invasion. Reason, Volokh Conspiracy. Apr. 3, 2020.
In the Media
Riots Likely Drove 2020's Biggest Gun Sales Spike. Seasonally adjusted sales hit unprecedented levels in June, analysis shows. Washington Free Beacon. Sept. 8, 2020. Charles Fain Lehman and Stephen Gutowski.
National Popular Vote statute violates Colorado Constitution says DU law professor. Complete Colorado. Sept. 6, 2020. Scott Weiser.
Kyle Rittenhouse and his militia defense ignores that private paramilitaries are illegal, NBC Think. Sept. 5, 2020. Erik Schechter.
Alvin York & the U.S. Gun Culture that Saved Europe, GATDaily. Sept. 4, 2020. Miguel Faria.
Knife Rights: Amicus Brief Filed in Hawaii Butterfly Knife Second Amendment Case, Ammoland.com. Sept. 1, 2020. Doug Ritter
Kopel on Red Flag Laws. CrimProf Blog. Aug. 27, 2020.
Joe Biden’s dubious claim about Revolutionary War cannon ownership. Politifact. June 29, 2020. Louis Jacobson.
18-to-20-Year-Olds and the Second Amendment: Challenge to Florida Law Can Continue. So holds a federal district court. The Volokh Conspiracy. May 5, 2020. Eugene Volokh.
Television, Radio, Podcasts
Colorado Inside Out. Sept. 11, 2020. Full episode. Ballot language for Gallagher Amendment people false tells homeowners and residents that their taxes won't go up. National Popular Vote violates Colo. Constitution right of the people of Colorado to directly elect the presidential electors. U.S. Senate race. Denver urban "camping" ban upheld by district court. Ban on Colorado high school sports this season is unscientific. Disgrace and something nice: Rugby is better use of TV time than NFL football these days. Trump deserves applause for three peace deals in one month.
Colorado Inside Out. Sept. 4, 2020. Full episode. CD 3 race, Club 20 debates. Proposed new Denver police contract. Bandimere Speedway rally refuses to obey orders that the extreme Left doesn't have to obey. Disgrace/Something nice: Boulder woman who beat up 12 year old for Trump sign. Democrats are right in the dire accusations about Trump; Republicans are right that Biden is cognitively impaired and that many Democrats want the U.S. be like Cuba and Venezuela.
Colorado Inside Out. Aug. 28, 2020. Full episode. Republican National Convention. Polis and Hancock finally speak out against violent mobs. Lawsuit against Colorado emergency powers law argues that it violates sepration of powers, by delegating unbounded lawmaking power to the governors. Disgrace/Something nice: Sportsball players wearing Nike products made by Uigher slave labor. The illustrious Adams family.
Guns: Culture, Control, and Trump. Devil's Advocate with Jon Caldara. July 24, 2020. Examining increases in gun ownership in 2020, and over the last seven decades. The racist history of American gun control. 36 minutes.
Constitutional Chats, from Constituting Amerca. Federalist Paper 37, The Difficulties of Convention, by James Madison. June 9, 2020. Because of the limits of human knowledge and language, and the diversity of human interests, the proposed Constitution could not be expected to be theoretically perfect. One hour video.
Latest Monographs & Journal articles
The National Popular Vote Violates the Colorado Constitution. Denver University Law Review Forum (forthcoming 2020). With Hunter Hovenga.
Red Flag Laws: Proceed with Caution. 45 (Alabama) Law & Psychology Review (forthcoming 2020).
Federal Circuit Second Amendment Developments 2018. 7 Lincoln Memorial University Law Review 20 (2020). With Joseph G.S. Greenlee
The Second Amendment Rights of Young Adults. 43 Southern Illinois University Law Journal 495 (2019). With Joseph G.S. Greenlee.
The 'Sensitive Places' Doctrine: Locational Limits on the Right to Bear Arms. 13 Charleston Law Review 205 (2018).
History and Tradition in Modern Circuit Cases on the Second Amendment Rights of Young People. 43 Southern Illinois University Law Journal 119 (2018). With Joseph G.S. Greenlee.
Defining "Assault Weapons." The Regulatory Review (Univ. of Pennsylvania). Nov. 14, 2018.
Data Indicate Second Amendment Underenforcement. 68 Duke Law Journal Online 79 (2018). Problems in the Second, Fourth, and Ninth Circuits.
In the Courts and Congress
Zoie H. v. State of Nebraska. No 19-1418. July 24, 2020. Cert. petition amicus brief of Professors of Second Amendment law, Firearms Policy Coalition, Firearms Policy Foundation, California Gun Rights Foundation, Madison Society Foundation, Second Amendment Foundation, and Independence Institute. Can an adult be prohibited from exercising the right to arms based on a juvenile conviction for which a jury trial was not allowed. The amicus brief discusses the history and tradition of arms rights for young adults.
Young v. Hawaii, No. 12-17808 (9th Cir. en banc 2020). Amicus brief for Professors of Second Amendment Law, Firearms Policy Coalition, Firearms Policy Foundation, Cato Institute, Madison Society Foundation, California Gun Rights Foundation, Second Amendment Foundation, and Independence Institute. Hawaii ban on licensed open carry.
Vermont v. Misch, No. 2019–266 (Apr. 24, 2020). Amicus brief of Cato Institute, Firearms Policy Coalition, Firearms Policy Foundation, and Independence Institute. Vermont magazine ban violates the text, history, tradition, and policy of the Vermont Constitution's right to arms. Statutory addendum.
In re: Interrogatory Submitted by the Colorado General Assembly. No. 2020SA000100. Brief of Independence Institute. Mar. 24, 2020.
Rupp v. Becerra. No. 19-56004. 9th Circuit. Feb. 3, 2020. Amicus brief of Firearms Policy Coalition/Foundation, Second Amendment Foundation, Madison Society Foundation, California Gun Rights Foundation, and Independence Institute. By any standard, the semiautomatic firearms banned by California are in "common use," and therefore they may not be prohibited.
Association of New Jersey Rifle and Pistol Clubs v. Attorney General or New Jersey. No. 19-3142. 3d Circuit. Feb. 3, 2020. Amicus brief of Professors of Second Amendment Law, Firearms Policy Coalition/Foundation, Madison Society Foundation, California Gun Rights Foundation, and Independence Institute. Repeating firearms predate the Second Amendment by two centuries; by the time of the Second Amendment, repeaters holding more than 10 rounds were well established. Accordingly, New Jersey's confiscation of all such magazines is unconstitutional.
Espinoza v. Montana Dept. of Revenue. No. 18-1195. U.S. Supreme Court. Sept. 18, 2019. Merits amicus brief. Many state constitutions, including Montana's, prohibit government aid to "sectarian" educational institutions. According to the original meaning, on the nineteenth century, "sectarian" did not refer to religion in general, but only to religions that were considered extreme, heretical, fanatical, or bad.