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Journal ArticleDOI

Protesting with guns and conflating the First and Second Amendments: The case of the Bundys

03 Jul 2021-Vol. 55, Iss: 2, pp 102-125
TL;DR: In this article, the legal discourse surrounding two armed anti-government confrontations, at Bunkerville, Nevada, in 2014 and the Malheur National Wildlife Refuge in Oregon in 2016, is analyzed.
Abstract: This article analyzes the legal discourse surrounding two armed anti-government confrontations – at Bunkerville, Nevada, in 2014, and the Malheur National Wildlife Refuge in Oregon in 2016 – to und...
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TL;DR: In this paper , the riot at the United States Capitol building on January 6, 2021, was placed within the longer history of white-led race riots in United States, as both state and vigilante actors have twisted the memory of that history toward maintaining an antidemocratic and racist status quo.
Abstract: In this article, we situate the riot at the United States Capitol building on January 6, 2021, within the longer history of white-led race riots in the United States, as both state and vigilante actors have twisted the memory of that history toward maintaining an antidemocratic and racist status quo. Motivating such riotous eruptions is what we call reactive memory in reference to the formation of historical mythologies that valorize a “return” to a whitewashed past in response to perceived threats against socioracial domination in the present. We contribute to rhetoric and communication scholarship on memory and far-right nation-building by examining the mobilization of reactive memory in “1776” discourses and the rhetoric of extremist paramilitary groups. In doing so, we demonstrate how reactive memory is conjured to justify the right’s saturation in white supremacy and antidemocratic intervention, including and especially riotous violence – not because its adherents have no other rhetorical recourse in the political state of affairs, but because they situate political violence to be their historically sanctioned prerogative.
Journal ArticleDOI
TL;DR: The authors synthesize Aristotle's and Kenneth Burke's interrelated conceptions of tragedy to analyze these opposing activities in St. Louis by property and gun rights advocates versus the Expect Us political protestors as a tragedy.
Abstract: On June 28, 2020, St. Louis “Expect Us” racial justice protesters marching to their mayor’s front door encountered Mark and Patricia McCloskey aiming guns at them as they walked past the couple’s mansion on a private road. A clash of “rights” erupted in this situation when viewed through the opposing participants’ lenses. On one hand, two persons pulled guns on unarmed protesters that they viewed as encroaching dangerously on their private property. On the other hand, peaceful protesters pursuing their collective cause were forced to detour onto a private street and were met by two persons brandishing guns. This essay examines this troubling encounter in St. Louis when two parties convinced of their starkly different rights protected by law collide. I synthesize Aristotle’s and Kenneth Burke’s interrelated conceptions of tragedy to analyze these opposing activities in St. Louis by property and gun rights advocates versus the Expect Us political protestors as a tragedy. First, I discuss six historical events in St. Louis from 1906 to 2021 that contextualize this confrontation. Next, I explore the essence of the rights protected by the First and Second Amendments to the Constitution and how they pertain to this encounter. I then define and apply five overlapping features of Aristotle’s and Kenneth Burke’s accounts of tragedy to consider the implications of this highly publicized event as a microcosm of our presently polarized American society.
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Journal Article
TL;DR: The Second Amendment right to carry a concealed firearm outside the home has been a hot topic in the post-Heller era as mentioned in this paper, with many legal scholars attacking the Heller decision for its revisionist rewriting of constitutional history.
Abstract: Introduction I. History and the Future of Gun Regulation: Heller's Legacy II. The Scope of the Right to Bear Arms in the Founding Era III. Gun Regulation in the Founding Era and Early Republic: Myths and Realities IV. The Pistol and the Lash: Slavery and the Permissive Right to Carry V. No Right to Carry: The Emergence and Spread of the Massachusetts Model Conclusion: The Past and Future of the Right to Carry Arms Outside the Home INTRODUCTION Emboldened by their victory in Heller, (1) gun rights advocates are waging a relentless campaign to strike down what little remains of the nation's relatively anemic gun control regime. (2) The Heller opinion itself is also partly responsible for generating a seemingly limitless parade of new lawsuits. (3) Legal scholars from across the ideological spectrum have attacked the controversial five-to-four decision, both for its revisionist rewriting of constitutional history and for its poor judicial craftsmanship. (4) The opinion raised more questions than it answered and left lower courts scrambling to decipher what was prohibited by Heller, if anything, short of a total ban on handguns. (5) The decision articulated no theory of judicial scrutiny, provided no black letter rules, and failed to create any categories of analysis to guide judges. Instead, it left the courts with an incomplete laundry list of presumptively lawful regulations to serve as a model of what remained legal. (6) In United States v. Masciandaro, Judge J. Harvie Wilkinson aptly summarized the problems that Heller's poor judicial craftsmanship wrought: "This case underscores the dilemma faced by lower courts in the post-Heller world: how far to push Heller beyond its undisputed core holding." (7) The first section of this Article examines the continuing relevance of history in the post-Heller era. The second section focuses on conceptions of the right to bear arms and the right to carry in the Founding era. Apart from service in militia, there is little evidence of a broad constitutional consensus on a right to carry arms in public. The third section analyzes some of the myths and realities about early American gun regulation. The fourth section locates the legal ideal of traveling armed in public in a distinctively southern tradition that was a minority strain within Antebellum law. The final section of this Article explores the alternative theory of robust arms regulation that emerged by the era of the Fourteenth Amendment and became the dominant tradition in American law. The existence of this regulatory tradition has remained hidden from modern scholars and courts because support for high levels of gun regulation was so pervasive outside of the South that few of these laws were ever challenged in court. I. HISTORY AND THE FUTURE OF GUN REGULATION: HELLER'S LEGACY Rather than close the book on historical argument, Heller appears to have done the opposite. The court stated this point succinctly in United States v. Masciandaro: "[H]istorical meaning enjoys a privileged interpretative role in the Second Amendment context." (8) Unfortunately, judges are in the unenviable position of evaluating the complex and contradictory historical evidence paraded before them. Separating historical myths from historical realities, distinguishing historical fact from error, and disentangling law office history from rigorous historical scholarship are serious problems for the courts in this area of the law. (9) One of the most controversial issues to arise in the wake of Heller is the right to carry firearms outside of the home. This issue is currently being litigated in the Fourth Circuit and a decision may well be rendered by the time this Article is published. (10) Masciandaro reveals the problems that Heller has created. In Masciandaro, the defendant was arrested for possessing a loaded firearm in a national park. (11) The court applied an intermediate scrutiny test and found that the statute in question, which prohibited loaded firearms in national parks, easily passed constitutional muster. …

3 citations

Journal Article
TL;DR: Non-judicial actors produce precedents that are more pervasive than those made by courts in constitutional law as mentioned in this paper, and they perform many functions besides constraint-serving as a mode of constitutional argument, settling constitutional conflicts, implementing constitutional values, and shaping structure, national identity, and culture.
Abstract: This Article attempts to reenvision constitutional law through the perspective of non-judicial precedents. Most constitutional scholars equate precedents with judicial decisions, particularly those of the Supreme Court, and discount the constitutional significance of precedents made by non-judicial actors. Using a wide range of examples, I show how shifting our perspective from the Court to non-judicial actors allows us to see constitutional law in significantly new ways. First, I suggest that the one essential feature common to all non-judicial precedents is their discoverability-the public efforts made to invest certain past non-judicial activities with normative force. To illustrate how discoverability makes non-judicial precedents recognizable, I compare three easy cases for spotting non-judicial precedents with three practically impossible ones. Second, I demonstrate that non-judicial precedents have other distinctive features-they are more extensive than judicial precedents, they are frequently enduring, they are designed largely to exert binding or persuasive authority, and they generally have limited path dependency-weak force to dictate outcomes over time. Third, I show that they perform many functions besides constraint-serving as a mode of constitutional argument, settling constitutional conflicts, implementing constitutional values, and shaping structure, national identity, and culture. The more extensively that they are citated with approval, the more secure their meanings and values become. Fourth, I argure that non-judicial precedents are instrumental to solving some classic conundrums in constitutional theory, including "the counter-majoritarian difficulty." Because so much judicial doctrine is grounded in non-judicial precedents in such forms as historical practices, customs, norms, and traditions, few judicial decisions are strictly "counter-majoritarian." The less firmly grounded judicial decisions are in concrete, majoritarian-approved expression(s) of law, the more vulnerable they are to political attacks. The Article concludes that shifting perspective on precedent from courts to non-judicial actors enables us to see how non-judicial actors are actually supreme in making constitutional law. INTRODUCTION This Article proposes a new paradigm for analyzing the role of precedent in constitutional law. The conventional perspective equates precedent with judicial decisions, particularly those of the Supreme Court,1 and almost totally ignores the constitutional significance of precedents made by public authorities other than courts.2 Yet, nonjudicial actors produce precedents that are more pervasive than those made by courts in constitutional law. Non-judicial precedents are not only confined to the backwaters of constitutional law, but they also pertain to serious constitutional matters-presidential succession, secession, congressional power to remove Presidents and Justices, and the respective authorities of the President and Congress to regulate war, just to name a few. By reenvisioning constitutional law through the lens of nonjudicial precedent, this Article develops several new insights into constitutional law generally and precedent in particular. First, shifting perspective improves the precision and clarity of the terms we employ in constitutional analysis. I define non-judicial precedents as any past constitutional judgments of non-judicial actors that courts or other public authorities imbue with normative authority. Once we understand non-judicial precedents in this way, they are more recognizable, and, in turn, their constitutional significance is more apparent. Second, shifting our perspective from that of the courts to that of other actors illuminates the considerable influence of non-judicial precedents in constitutional law. The Supreme Court is shaped by non-judicial precedents on its size, composition, jurisdiction, and funding; these non-judicial precedents take such diverse forms as administrative and historical practices, tradition, norms, culture, and custom. …

2 citations

Book ChapterDOI
02 Sep 2021

1 citations

Journal Article
TL;DR: Magarian as discussed by the authors argued that the Second Amendment does not serve collectivist or individualist purposes, and that the First Amendment serves a collective interest in deterring and, if necessary, violently deposing a tyrannical federal government.
Abstract: When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the right's scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment's protections for expressive freedom to support their proposals for Second Amendment doctrine. In this Article, Professor Magarian advocates very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment's legal potency. Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines. He then contends that longstanding debates about whether constitutional speech protections primarily serve collectivist or individualist purposes present a useful model for interpreting the Second Amendment. The language of the Second Amendment's preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment. The individual right to keep and bear arms, contrary to the Heller Court's fixation on individual self-defense, must serve some collective interest. Many gun rights advocates have long urged that the Second Amendment serves a collective interest in deterring-and, if necessary, violently deposing-a tyrannical federal government. That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change. Professor Magarian contends, however, that we should prefer debate to insurrection as a means of political change and that, in fact, the historical disparity in our legal culture's attention to the First and Second Amendments reflects a long-settled choice of debate over insurrection. Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment. Professor Magarian concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action. Language: en

1 citations