Our Non-Originalist Right to Bear Arms

District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent. This Article challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth- and twentieth-century case law. This Article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism—not originalism—in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller—and not United States v. Miller—is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this Article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporaneous popular understanding of the right—and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons—an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent lower courts to adopt the “collective rights” interpretation of Miller— an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The Article concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons—which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first-century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions—an approach that sounds more in popular constitutionalism than originalism

The Bipartisan Safer Communities Act: Doctrinal and Policy Problems

In response to recent mass shootings, Congress passed the Bipartisan Safer Communities Act. The Act encouraged states to implement red-flag laws, adopted a more punitive approach to federal gun control, expanded the domestic violence misdemeanors that prohibit firearm possession, and implemented more stringent regulations on young adults purchasing firearms. Because of the difficulties in passing federal gun control laws, Congress hastily passed the Act after a small, bipartisan group of Senators agreed on its text. This stunted legislative process left the new law riddled with ambiguities and technical deficiencies. This Article explores the constitutional, doctrinal, and policy problems created by the Bipartisan Safer Communities Act

The Modern Common Law of Crime

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions. This Article offers a third vision: that modern American criminal law is primarily conventional. That is, much of our criminal law is defined by unwritten common-law-like norms that are widely acknowledged and generally respected, and yet are not recognized as formal law enforceable in courts. This Article makes three contributions. First, it argues that criminal law conventions exist. Second, it explains how nonlegal checks on prosecutorial power bring about criminal law conventions. Third, it provides an account for how legislatures and courts should respond to a criminal law heavily comprised of norms that rely primarily on nonlegal sanctions for their enforcement

Federalism and the Military Power of the United States

This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits. This Article then explains the relevance of deviations from original constitutional design for contemporary legal disputes. Most significantly, although the expansion of federal military power has largely come at state expense, this expansion has also disturbed the allocation of war powers between Congress and the president. In addition, understanding the original division of military power is relevant to determining modern limits on Congress’s power to raise and regulate the armed forces, including its power to impose military criminal jurisdiction on reserve soldiers

Our Non-Originalist Right to Bear Arms

District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent. This Article challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth- and twentieth-century case law. This Article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism—not originalism—in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller—and not United States v. Miller—is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this Article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporaneous popular understanding of the right—and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons—an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent lower courts to adopt the “collective rights” interpretation of Miller— an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The Article concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons—which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first-century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions—an approach that sounds more in popular constitutionalism than originalism

You Are Who Your Friends Are: An Experiment on Trust and Homophily in Friendship Networks

We study the existence of homophily (i.e. the tendency for people to make friends with people who are similar to themselves) with respect to trustworthiness. We ask whether two friends show similarly trustworthy behavior towards strangers, and whether this is anticipated by outsiders. We develop a simple model of bayesian learning in trust games and test the derived hypotheses in a controlled laboratory environment. In the experiment, two trustees sequentially play a trust game with the same trustor, where the trustees depending on treatmen are either friends or strangers to each other. We affirm the existence of homophily with respect to trustworthiness. Trustors´ beliefs about the trustees´ trustfulness are not affected by the knowledge about the (non-)existent friendship between the trustees. Behaviorally, however, they indirectly reciprocate the (un-)trustworthy behavior of one trustee towards his/her friends in later interactions