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.

Does the Second Amendment Make Gun Politics Obsolete?

Abstract: InAmerican law, the boundaries of regulation are set by—among other things— politics and the Constitution. Either one can serve as a constraint. Regulations that are politically unpopular or otherwise unfeasible are non-starters regardless of whether they satisfy the Constitution. Regulations that violate the Constitution, on the other hand, may be tremendously popular but will often be struck down by courts. The line between these political and constitutional constraints is never entirely clear, as political rhetoric and constitutional doctrine borrow from one another in innumerable ways. Elected officials take oaths to uphold the Constitution; judges often act in ways that appear political. But in a broad sense, judges are more commonly associated with the enforcement of constitutional law and regularly deny that they are doing politics—a matter for elected officials. Recognizing some slippage between the categories, we can draw a line between judge-enforced constitutional law and democratic politics. Formost of American history, the balance of gun rights and regulationwas set by politics—not, as one might suspect from its prominence in the current gun debate, the Second Amendment. Decisions about gun law were made by elected officials at the federal, state, and local level, responding to different forms of political pressure.

From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms after Heller

Abstract: As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it. This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion — state and federal, trial and appellate — from Heller up until February 1, 2016. The dataset is deep as well as broad, including dozens of variables regarding the content of each challenge, not just whether it prevailed. Our findings help provide an objective basis for characterizing Second Amendment doctrine and framing new scholarly inquiries. This is a particularly important task now, as the Amendment becomes a part of “normal” constitutional law and increasingly susceptible to the standard tools of legal analysis.

Selling State Borders

Abstract: Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.

Gun Rights Talk

Abstract: INTRODUCTIONThe Second Amendment plays a massive - some would say outsized - role in our often-dysfunctional national gun debate.1 It serves as a banner for gun- rights supporters, a common enemy for gun-control advocates, and a consistent headache for scholars, lawyers, and judges. But the full force of the Amendment's influence over the scope and extent of gun control cannot be found in casebooks. Even after the Supreme Court's decision in District of Columbia v. Heller,2 relatively few gun laws - all of them unusually stringent - have been struck down on Second Amendment grounds.3The Amendment has, however, been an enormously effective tool for keeping those gun laws from taking root in the first place. Indeed, the Second Amendment's underwhelming impact in litigation is largely reflective of its own success: because invocations of the Amendment have been so politically powerful, there is simply not as much left for it to do, legally speaking, as some might suppose.4 This makes it somewhat difficult to argue that constitutional "dysfunction" itself has blocked the kind of regulations that many gun-control supporters want. After all, most Americans support the "individual" right to keep and bear arms recognized in District of Columbia v. Heller,5 and very few support confiscatory gun control or outright gun bans.6Nevertheless, "gun rights talk" does have drawbacks that contribute to political dysfunction. This does not necessarily make it unique as far as constitutional rhetoric goes. In fact, the basic character of gun rights talk is familiar to critics of rights talk more generally7: "[I]ts starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with regard to personal, civic, and collective responsibilities."8 If anything, the extreme forms of gun rights talk simply provided an especially powerful illustration of the standard rights talk critique.The traditional remedy prescribed for overuse of rights talk is to minimize exposure, thereby giving more rhetorical space to underlying - and presumably more soluble - political disagreements.9 Excavating the gun debate from the constitutional rubble indeed might be a step in the right direction, as it could enable a more direct discussion of the proper role of gun rights and gun control in the United States, free from misunderstandings and misinterpretations of constitutional doctrine.10 But it would not necessarily cure the disease, as gun rights talk is also a symptom, not simply a cause, of the dysfunction. The deeper one digs, the more it becomes evident that gun rights talk is not just about rights, has even less to do with the Constitution, and may not even be about guns. It is, at root, a debate about culture and values.11 Clearing away the rights talk might only uncover a culture war, not a political debate. And resolving that cultural dispute will require a kind of public discourse that has thus far proven elusive.The charge of this Symposium is to focus on the constitutional connections, causes, and cures of America's political dysfunction. As a legal matter, the Second Amendment is not necessarily the villain that advocates of gun control sometimes suspect it to be.12 Existing doctrine permits reasonable gun control. The dysfunction, inasmuch as it exists, is not a result of gun rights, but of gun rights talk, and on a deeper level a cultural conflict that lacks a vocabulary for political engagement. Solving that problem will require remedies that lie outside the law, and yet - perhaps counterintuitively - the Second Amendment might still have a useful role to play in facilitating discourse.I. HELLER'S WHIMPERAs a doctrinal matter, the story of the modern Second Amendment begins with District of Columbia v. Heller, which held that the Amendment protects an "individual" right to bear arms for self-defense, and that a citywide ban on handguns in the District of Columbia was an unconstitutional infringement of that right. …

Disuniformity of Federal Constitutional Rights

Abstract: Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric. Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is entirely convincing. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not identical throughout the nation. The application and even definition of federal guarantees varies geographically, sometimes to a surprising degree. Moreover, there are reasons to favor some degree of disuniformity — some of the same reasons, in fact, that Sutton gives for favoring state constitutional law. But the fact of diversity and the strength of the arguments in favor of it point to a difficult set of questions: How much and what kinds of non-uniformity are desirable when it comes to federal constitutional rights? This Essay attempts to sketch a few answers.

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.