Cincinnati, OH
Joined July 2010
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I enjoyed arguing in the Seventh Circuit yesterday on the question whether Illinois's ban on firearm suppressors implicates the plain text of the Second Amendment. Thanks to NIU College of Law for hosting the sitting.
@JoeyVotto Great to see you interacting with fans on here. I was at your last game at GABP - it was a cool experience.
Pete Patterson retweeted
New #FirstAmendment case from the Ninth Circuit
May @X sue a nonprofit hate-speech monitor for scraping public posts and publishing reports that drove away advertisers? audioarguendo.com/listen.php…
I have published an article on SCOTUSblog addressing Heller's language about presumptively lawful regulatory measures. From the conclusion:
Heller’s discussion of “presumptively lawful regulatory measures” does not provide a “get out of history free” card allowing the federal or state government to avoid meeting its burden under Bruen’s second step. Which is to say, there are not “safe harbors” of people, place, or status that are exempt from normal Second Amendment scrutiny. While Heller identified categories of historical exceptions to the right, it did not define their scope; rather, the court itself stated that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” Until then, it is the government’s burden to demonstrate the historical scope of those exceptions, and to demonstrate that a challenged law fits within that scope. What the government cannot do is point to Heller’s “presumptively lawful” language and end the inquiry there.
Link here: scotusblog.com/2026/09/how-c…
I had the pleasure of presenting argument in the Fifth Circuit today on the question whether the federal ban on individuals purchasing handguns outside of their home state violates the Second Amendment.
Why is this important? The Heller passage is presumptively identifying categories of regulation akin to things like obscenity, incitement to violence, and fraud in the First Amendment context - things that are covered by the plain text of the right, but that are historical limits on its plain-text coverage.
Importantly, while the Court has identified "conditions and qualification on the commercial sale of arms" as a potentially subject of lawful regulation, it has not defined the historical contours of any such exception.
It therefore remains the government's burden to demonstrate that scope historically and to demonstrate that a challenged law is withing that scope, just as it must for the other categories on the list; i.e., restrictions on carry in sensitive places and restrictions on possession by felons and the mentally ill.
Justice Kavanaugh in his Rahimi concurrence confirms that conditions and qualifications on commercial sales are among "traditional exceptions to the right," not textual exclusions from the right.
Quick 2A thread: Heller's treatment of conditions and qualifications on commercial sale of arms demonstrates that such regulations implicate the plain text of the Second Amendment.
The passage is in a paragraph concerning historical limitations on the textual scope of the right, such as sensitive place laws and felon disarmament laws. If conditions and qualifications on commercial sales did not implicate the plain text, there would be no need to include them in the discussion.
Congratulations to @BenFlowersOH!
Confirmed, 49-46: Confirmation of Executive Calendar #775, Benjamin M. Flowers to be United States Circuit Judge for the Sixth Circuit.
Here is the conclusion to my latest on SCOTUSBlog:
The Second Amendment is an increasingly active part of the court’s docket. Second Amendment cases no longer are epochal, groundbreaking jurisprudential events that come along once a decade (or less). Going forward, we can expect more terms like this one, with the court deciding one or more Second Amendment cases as it continues to define the contours of the right under the Heller-Bruen regime.
