Joseph Blocher

Bio: Joseph Blocher is an academic researcher from Duke University. The author has contributed to research in topics: Constitutional law & Doctrine. The author has an hindex of 7, co-authored 71 publications receiving 382 citations. Previous affiliations of Joseph Blocher include University of Notre Dame & University of Tulsa.

Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights

Abstract: The study of “rights dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can help deepen understandings of the nature of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “doctrinal dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly, for example in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying different constitutional guarantees, and the sometimes inextricable relationship between particular rights and their constitutive doctrines. In this Essay, we explore the definitional challenge—what is doctrine?—before identifying some lessons learned when doctrine migrates between rights, and when it stays home.

The Geography of a Constitutional Right: Gun Rights Outside the Home

Abstract: Over the past few decades, the right to keep and bear arms has been on the move. Most notably, it has stepped from the realm of pure politics into the world of positive law. Where once the right to keep and bear arms operated primarily as a political slogan, it is now an operational, oft-litigated constitutional right— albeit one still facing important questions of scope and strength. In making its transformation, the right to keep and bear arms has presented courts and scholars with new questions about the constitutionality of gun regulation. The answers to those questions vary depending on where those regulations apply, including perhaps most importantly whether they restrict the keeping of arms to the home. Understanding the “geography” of the Second Amendment is therefore a central challenge for courts and scholars—a challenge that this symposium addresses. As with so many other questions of gun rights and regulation, the starting point is the Supreme Court’s 2008 decision in District of Columbia v. Heller. It was Heller that effectuated the transition of the right to keep and bear arms from a powerful political and cultural force into a matter of constitutional doctrine. That of course did not end the political debate over gun rights and regulation. But after Heller, the debate is a matter for the courts as well. In the first decade after the Supreme Court’s decision, they resolved more than 1,000 Second Amendment challenges. Those challenges involve many different dimensions of the right to keep and bear arms, including who can claim it, what weapons it covers, and how the government can regulate the people and weapons that are not categorically excluded. Heller tells us that “felons” are excluded from Second Amendment

Viewpoint Neutrality and Government Speech

Abstract: INTRODUCTIONIt is a bedrock principle of the First Amendment that "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."1 And yet, "the Government's own speech . . . is exempt from First Amendment scrutiny," even when it has the effect of limiting private speech.2 The upshot of these apparently conflicting principles is that, pursuant to government speech doctrine, the government may be able to restrict private expression "because of its message, its ideas, its subject matter, or its content," so long as in so doing it is expressing its own viewpoint.3 Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another?4 Has government speech doctrine undermined the First Amendment's seemingly inviolable viewpoint neutrality requirement?5Government speech doctrine is young, and its youthful exuberance and ambition-not to mention its adolescent awkwardness-has become cause for some parental concern. In 2009, in Pleasant Grove City, Utah v. Summum, the U.S. Supreme Court's most recent government speech case, Justice Souter warned, "it would do well for us to go slow in setting its bounds, which will affect existing doctrine in ways not yet explored."6 As the doctrine grows, the constitutional exemption it receives is increasingly bumping into another apparently absolute First Amendment principle-the requirement that the government be viewpoint neutral when it restricts private speech.7 The prevention of viewpoint discrimination has long been considered the central concern of the First Amendment,8 and yet in some cases government speech doctrine seems to allow-if not outright encourage-viewpoint discrimination in the extreme. Indeed, one way for the government to prevail in a government speech case is to show that a private speaker's message is contrary to, and interfering with, its own.9This does not (yet) mean that government speech doctrine has swallowed the rest of the First Amendment by permitting unchecked viewpoint discrimination against private speakers.10 Many incidents of government speech arguably can be viewpoint neutral, at least from the government's point of view. Although the government speech doctrine does not permit total bans on the expression of a private viewpoint, it does allow what had previously been thought forbidden: the burdening, even if not silencing, of private viewpoints because the government disagrees with them.Summum provides a perfect example. In that case, a religious order called the Summum sought to erect a monument in a public park that already contained other privately donated monuments.11 Pleasant Grove City rejected the monument on the grounds that it was not consistent with the city's purported message of celebrating local history and community.12 The city argued that the placement of monuments in a public park was not susceptible to public forum analysis, but was instead an incident of government speech and therefore exempt from scrutiny under the Free Speech Clause.13 The Court agreed, holding that "the City's decision to accept certain privately donated monuments while rejecting respondent's is best viewed as a form of government speech. As a result, the City's decision is not subject to the Free Speech Clause . . . ."14Although some have described Summum as an "easy" case,15 others are made uneasy by the fact that it blessed a government action that was for all intents and purposes indistinguishable from viewpoint discrimination in a public park-the prototypical example of impermissible speech regulation.16 What this discrepancy illustrates is that some criticisms of government speech-and there have been many trenchant criticisms17-have failed to grasp fully the nature of the beast. It is generally supposed that government speech is dangerous because it threatens to drown out or distort private discourse due to the government's limitless resources and powerful platforms for communication. …

Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment

Abstract: A great deal of everyday expression is, strictly speaking, nonsense But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcomeThis Article is the first to explore thoroughly the relationship between nonsense and the freedom of speech; in doing so, it suggests ways to determine what “meaning” means for First Amendment purposes The Article begins by demonstrating the scope and constitutional salience of meaningless speech, showing that nonsense is multifarious, widespread, and sometimes intertwined with traditional First Amendment values like autonomy, the marketplace of ideas, and democracy The second part of the Article argues that exploring nonsense can illuminate the meaning of meaning itself This, too, is an important task, for although free speech discourse often relies on the concept of meaning to chart the Amendment’s scope, courts and scholars have done relatively little to establish what it entails Analytic philosophers, meanwhile, have spent the past century doing little else Their efforts — echoes of which can already be heard in First Amendment doctrine — suggest that free speech doctrine is best served by finding meaning in the way words are used, rather than in their relationship to extra-linguistic concepts

The Positive Second Amendment: Rights, Regulation, and the Future of Heller

Abstract: The Second Amendment is among the most recognized provisions of the Constitution It is also perhaps the most misunderstood Common misconceptions about the amendment - what it forbids, what it permits, how it functions as law - distort the gun debate and America's constitutional culture In The Positive Second Amendment, Blocher and Miller provide the first comprehensive post-Heller account of the history, theory, and law of the right to keep and bear arms Their aim is not to pick sides in the gun debate, but rather to show how a positive account of the 'constitutional' Second Amendment differs from its political cousin Understanding the right to keep and bear arms as constitutional law will challenge many deeply held beliefs But it may also provide a better way to negotiate the seemingly intractable issues that afflict America's debate over gun rights and regulation

United States V. _____

Abstract: FACTS An officer in Midvale, Utah was doing some paperwork in his patrol car when he was approached by man, later identified as Nitokalisi Fonua (hereinafter, “Nick”). Nick “looked suspicious,” mainly because he was “jittery, looking around and appeared to be very nervous.” Nick’s suspicion rating jumped dramatically when, for no apparent reason, he informed the officer he had stolen a white GMC Blazer, which he had parked nearby. Naturally, the officer asked Nick if he would show him the Blazer, and Nick said sure. When they located the Blazer, the officer walked over and looked inside. The first thing he saw was a sawed-off shotgun on the back seat. Then he noticed some markings on the shotgun, “markings that looked gang-related.” Nick told the officer that the key to the Blazer was inside his motel room at the Days Inn. Also in the room, he said, were his “cousins,” meaning “people he knows from the streets.” The officer asked Nick “if we could obtain the keys to the vehicle so we could turn those back over to the owner.” Nick said the keys “were in the room somewhere” and that he “didn’t care” if the officer went in and retrieved them. Nick also gave the officer his key to the room. When backup arrived at the motel, officers knocked on the door which was opened by a man named Vake. There were two other occupants: a woman and Kimoana, the defendant. By this time, the officers were aware that Kimoana—not Nick—had rented the room. The first thing the officers saw as the door opened was the woman pointing “an unidentified black object” at the wall. Concerned for their safety, they ordered the occupants to “show their hands.” Then they pat searched them. Finding no weapons (the “unidentified black object” was a television remote control), they holstered their guns. Although the officers already had Nick’s consent to search the room, they sought and obtained consent from Vake. During the search, they found a “long-barreled revolver” under a mattress. As the result, Kimoana was convicted of being a felon in possession of a firearm.

Land-based investments for rural development? A grounded analysis of the local impacts of biofuel feedstock plantations in Ghana.

Abstract: The rapidly growing biofuel sector in Africa has, in recent years, been received with divided interest. As part of a contemporary wave of agricultural modernization efforts, it could make invaluable contributions to rural poverty. Conversely, it could also engender socioeconomically and environmentally detrimental land use changes as valuable land resources are converted to plantation agriculture. This research analyzes the impacts and impact pathways of biofuel feedstock development in Ghana. It finds that companies are accessing large contiguous areas of customary land through opaque negotiations with traditional authorities, often outside the purview of government and customary land users. Despite lack of participation, most customary land users were highly supportive of plantation development, with high expectations of ‘development' and ‘modernization.' With little opposition and resistance, large areas of agricultural and forested land are at threat of being converted to plantation monoculture. A case study analysis shows that this can significantly exacerbate rural poverty as communities lose access to vital livelihood resources. Vulnerable groups, such as women and migrants, are found to be most profoundly affected because of their relative inability in recovering lost livelihood resources. Findings suggest that greater circumspection by government is warranted on these types of large-scale land deals.

Governing Extractive Industries: Politics, Histories, Ideas

Abstract: Proposals for more effective natural resource governance emphasize the importance of institutions and governance, but say less about the political conditions under which institutional change occurs. This book synthesizes findings regarding the political drivers of institutional change in extractive industry governance. The authors analyse resource governance from the late nineteenth century to the present in Bolivia, Ghana, Peru, and Zambia. They focus on the ways in which resource governance and national political settlements interact. Special attention is paid to the nature of elite politics, the emergence of new political actors, forms of political contention, changing ideas regarding natural resources and development, the geography of natural resource deposits, and the influence of the transnational political economy of global commodity production. National elites and subnational actors are in continuous contention over extractive industry governance. Resource rents are used by elites to manage this contention and incorporate actors into governing coalitions and overall political settlements. Periodically, new resource frontiers are opened, and new political actors emerge with the power to redefine how extractive industries are governed and used as instruments for development. Colonial and post-colonial histories of resource extraction continue to give political valence to ideas of resource nationalism that mobilize actors who challenge existing institutional arrangements. The book is innovative in its focus on the political longue durée, and the use of in-depth, comparative, country-level analysis in Africa and Latin America, to build a theoretical argument that accounts for both similarity and divergence between these regions.