Supreme Court and constitutional law roundup

  • Litigating the boundaries of religious liberty: Tunku Varadarajan interview/profile with Becket Fund’s Montse Alvarado [WSJ] And mark your calendar for Sept. 28, Cato’s inaugural day-long conference “The Future of the First Amendment” at which I’ll be on a panel on religious liberty;
  • What Hamilton wrote: archive find casts further doubt on theory President isn’t “officer” subject to Emoluments Clause [Brianne Gorod, Take Care] Broad definition of emoluments in suit against Trump might trip up its own lead plaintiff, Connecticut Sen. Richard Blumenthal [Michael Stern] “There is nothing wrong with Justice Gorsuch speaking at the luncheon despite its venue.” [Steve Lubet on Trump-Hotel-as-speech-venue flap]
  • Duties of celebration: Cato amicus urges SCOTUS to consolidate Arlene’s Florist with Masterpiece Cakeshop case [Ilya Shapiro and David McDonald]
  • Maryland gun ban unconstitutionally broad, argue Randy Barnett and Dave Kopel in Cato amicus [Shapiro, Kopel, and Matthew Larosiere] Restore rights to a rehabilitated felon? Sure, says Maryland, but not gun rights. Constitutional check [Shapiro]
  • Federalist Society’s annual Supreme Court roundup speech for last term, by Miguel Estrada, is now online. Unfinished business: 10 certiorari petitions from last term SCOTUS justices should have granted [Mark Chenoweth, WLF] And don’t forget to mark your calendar for Cato’s Constitution Day Sept. 18;
  • By 2019, constitutional law discussions at America’s top law schools were being conducted entirely in emoji [@tribelaw on Twitter on “First or Second Amendment, pick one” question of whether persons assembling for political protest have right to bear arms at the same time]


  • Steve Lubet, not David.

    • Ouch! My mistake. Fixed now.

  • Speaking of the First Amendment, under what theory does the right of the people to “peaceably assemble” Include the right of assembly to threaten, assault, and riot?

    • Under no theory that I am aware of does the right to peaceably assemble include any of those things.

      On the other hand, proving in advance that any group is intentionally planning to do any of those things is likely to be impossible.

      As such, as with speech, the courts should look at any attempt at prior restraint of the right to peaceably assemble with great skepticism.

      • Matt, I am not talking about – or even insinuating – prior restraint.

  • @ John Fembup– I have raised similar points in the past about residential picketers and anti abortion extremists, but it applies equally to today’s neo-communists (communism equals socialism plus repression).

    The word “peaceable” is increasingly forgotten, but so are the words which follow: “The right of the people peaceably to assemble, and to petition the *government* for a redress of grievances.” (*emphasis* added). The First Amendment guarantees you the right to stage your own rally, but not a right to scream at and threaten private individuals that you disagree with.

  • Hugo, you can peaceably assemble and you can redress your grievances, but you do not have to do both at the same time. It is your endowed right to do them both however. I almost wrote permitted, but it’s not a matter of permission, it’s a matter of something the government has no authority to control. If they don’t like it, let them take it up with the creator.
    Lots of folks peacefully assemble at their local ranges with weapons all the time. In fact, I would suggest that having persons with weapons knowledgeable of those weapons has a social benefit. And exactly how many people were shot at Charlottesville? I personally have not owned a firearm since I lost my sight at 14. I was however taught gun safety and how to shoot when I was 6. In fact, I had my own bolt action .22 which I was responsible for maintaining. But I learned with bolt action, semi-auto and a pump action 12 gauge. Sometimes hunters assemble with their weapons and go hunting. Assembly and weapons are not mutually exclusive.