Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding arms, and what practical implications, if any, the latter right would have. The Article concludes—albeit with some important qualifications—that a right not to keep or bear arms is implied by what the Supreme Court has called the “core” and “central component” of the Second Amendment: self-defense, especially in the home. Recognizing such a right might call into question the constitutionality of the growing number of “anti-gun control” laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession.
Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama’s signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation’s individual mandate to buy health insurance is unconstitu-tional. Virginia’s lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed to its political salience also require its dismissal for lack of statutory subject matter jurisdiction. [...]
byKenneth T. Cuccinelli, II, E. Duncan Getchell, Jr. & Wesley G. Russell, Jr.
Critics of Virginia’s challenge to the constitutionality of the Patient Protection and Affordable Care Act have asserted that Virginia lacked standing to even raise the issue. Such criticism is inconsistent with foundational understandings of the role of states in providing a check on federal power and with the modern standing jurisprudence of the Supreme Court, especially as reflected in the Court’s decisions regarding a state’s sovereign interest in defending its code of laws. This Article demonstrates that, as a matter of constitutional design and history, as well as under relevant precedents, Virginia clearly had and has standing to bring its challenge.
In the name of national security, federal and local governments have begun to intervene domestically in the religious lives of Muslims and into Islam itself. Taken together, these interventions form part of the emerging strategy of counter-radicalization, by which officials aim to diminish the pull of radical Islamic ideology in part by promoting more “mainstream” theological alternatives. Both the official opposition to radical Islam (as opposed to the violence that it is thought to generate) and the support for more palatable (to the state, that is) religious alternatives generate friction with the Establishment Clause and the values that it enshrines. But the prospect of establishing “Official Islam” is not the only worry surrounding counter-radicalization. Counter-radicalization also suffers from a number of strategic flaws that have become apparent in the context of British counter-radicalization efforts undertaken over the last five years. Most fundamentally, Western governments, including our own, are unlikely to succeed in tackling the risk of future terrorism by attempting to shape religious ideology. In fact, this strategy is likely to backfire by stoking animosities and fear. This Article describes the emergence of American counter-radicalization and its roots in the British example, highlights the tension between this area of official endeavor and the Establishment Clause, and reveals the tight connection between the legal and strategic challenges with which American counter-radicalization must contend.
Politicians across the political spectrum, from Barack Obama to Sarah Palin and Rand Paul, routinely castigate lobbyists for engaging in supposedly corrupt activities or having unequal access to elected officials. Since attaining office President Obama has imposed unprecedented new lobbying regulations, and he is not alone: both Congress and state and local legislative bodies have done so in recent years. At the same time, federal courts, relying upon the Supreme Court’s new campaign finance decision in Citizens United v. FEC, have begun striking down lobbying regulations, including important regulations that limit campaign finance activities of lobbyists and impose a waiting period before legislators or legislative staffers may work as lobbyists. Two courts have held such laws could not be sustained on anticorruption grounds, and they are unlikely to be sustained on political equality grounds either. [...]
This Note seeks to answer a set of questions prompted by the Supreme Court’s 2010 decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In that case, six Justices recognized that the Constitution provides some protection against so-called judicial takings—court decisions that, like executive and legislative action, might be deemed to take property rights. But the Court’s fractured holding provided little guidance on a handful of practical issues that will be of immense interest to potential judicial takings plaintiffs, like whether such claims can be brought in federal court and what remedies might be available. I argue that a judicial takings plaintiff should be able to bring her case in federal district court, notwithstanding the barriers the Supreme Court has erected that keep the vast majority of federal takings litigation in state court. I further argue that while the Eleventh Amendment likely precludes a federal court from awarding money damages in a judicial takings case, equitable relief—in the form of invalidation of the offending state court opinion—should be available.