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As detailed in a recent alert,1 U.S. District Judge Dabney L. Friedrich, in Alabama Association of Realtors v. U.S. Department Of Health And Human Services,2 found that the Centers for Disease Control and Prevention (CDC) did not have authority to impose a nationwide eviction moratorium (CDC Order) under the Public Health Service Act (PHSA). Since the decision, there has been a spate of activity in that case and throughout the country regarding the CDC Order and its enforceability. With the CDC Order set to expire on 30 June 2021 and increasingly encouraging national COVID-19 data, it seems less likely that the CDC Order will remain in place for an extended period. Individual states, however, may ultimately keep certain pandemic protection measures in place in order to protect residential tenants. While landlords and tenants await an official decision from the CDC about a further extension of the moratorium, courts will continue to rule on the enforceability of the CDC Order.

In Alabama Association of Realtors, Judge Friedrich determined that while COVID-19 created a serious public health crisis with unprecedented challenges for public health officials, the PHSA did not grant the CDC with the legal authority to impose a nationwide eviction moratorium.3

As expected, the U.S. Department of Health and Human Services (DHHS) immediately appealed to the D.C. Circuit Court of Appeals.4 In addition, DHHS asked Judge Friedrich, on an emergency basis, to stay her order pending appeal.5 Given its immediate appeal and emergency motion, DHHS confirmed that, despite the improved public health outlook, it remains resolute in its defense of the nationwide eviction moratorium.

On 14 May 2021, after full briefing, the trial court granted DHHSs emergency motion to stay pending appeal. While Judge Friedrich found that DHHS had little chance of success, she nonetheless granted the motion after determining that there was sufficient risk of irreparable harm if the CDC Order does not remain in place.6

Following the decision, both parties filed briefs in the trial court and the D.C. Circuit. The plaintiffs filed a notice of their intention to not only file a motion in the D.C. Circuit, but also that they intend to file an application to vacate the stay in the Supreme Court of the United States,7 while DHHS filed its opposition in both courts arguing that the plaintiffs challenge to the CDC Order is meritless and that the balance of equities favors the government.8

On 2 June 2021, the D.C. Circuit declined to lift the stay, finding that the government made a sufficient showing that it is likely to succeed on the merits.9 In response, the plaintiffs asked the U.S. Supreme Court to stay enforcement of the policy during a further appeal. Submitting an application to Chief Justice John Roberts, who handles emergency appeals from the D.C. Circuit on the courts so-called shadow docket, the plaintiffs urged the justices to intervene and lift the stay of the CDC Order because the stay will prolong the severe financial burdens borne by landlords under the moratorium and [the] governments sweeping position is contrary to the text and structure of the statute.10 The shadow docket includes cases that do not proceed via the Supreme Courts normal briefing and argument process. The speed with which the Supreme Court and D.C. Circuit handles the cases could impact any further extension to the CDC Order. Also, with the CDC Order set to expire on 30 June 2021, there is a chance that the pending appeal could conceivably become moot before there are any further rulings from any court.

Another court addressed the CDC Order as impacted by a new Consumer Financial Protection Bureau (CFPB) rule. In April 2021, the CFPB introduced a new interim rule to, among other things, help residential tenants facing eviction, requiring debt collectors to provide written notice to delinquent tenants informing tenants that they may be eligible for relief under the CDC Order. The rule states that the disclosure of the CDC Order must be made in any jurisdictions where the CDC Order applies. A group of property managers filed suit in the Middle District of Tennessee challenging this rule as violative of their First Amendment rights where it compelled false speech and sought a temporary restraining order to block it.

In The Property Management Connection, LLC v. The Consumer Financial Protection Bureau,11 the court first noted that several federal courts, including the 6th Circuit,12 have determined that the CDC exceeded its authority in issuing the CDC Order, thus making the CDC Order inapplicable. The court then addressed the CFPB rule, determining that by its own terms it only applies during the effective period of the CDC Order, only to tenants to whom the CDC Order reasonably might apply, and only in jurisdictions in which the CDC Order applies.13 The court further highlighted that the CFPB itself opined that the rule does not apply where the CDC Order is inapplicable. Thus, the court concluded that since binding 6th Circuit precedent invalidates the CDC Order, the CFPB rule, by its own terms, does not apply. Because the CDC Order did not apply, the plaintiffs claimed First Amendment violation was not viable, according to the court, because the inapplicable rule compels no speech. Therefore, the court found that the plaintiffs could not demonstrate a likelihood of success on the merits, and it denied the requested relief.

In the Middle District of Florida, a group of realtors with more than 200,000 members and a real estate business filed their own federal lawsuit challenging the CDC Order on 17 May 2021. Like earlier suits, the plaintiffs in Florida Association of Realtors, Inc. v. Centers for Disease Control and Prevention14 contend that the CDC overstepped its authority in issuing a national eviction moratorium. The plaintiffs allege that the CDC does not have the authority to be the landlord-in-chief and that estimated losses from the CDC Order may exceed tens of millions of dollars.15 At this stage, it is unclear whether the CDC will respond to the complaint before deciding whether to extend the moratorium.

Given the DHHSs aggressive defense of the CDC Order in Alabama Association of Realtors, it seems likely that the CDC may be planning to further extend the moratorium even where numerous courts have determined that it does not have the authority to do so. In any event, landlords and tenants alike will be paying close attention to the CDCs decision, as cases addressing the CDC Order will likely take center stage. Regardless of its prospects for longevity, the CDC Order remains in place in most jurisdictions, but its days seemed numbered. Also, no matter the fate of the CDC Order, landlords and tenants will need to monitor state-by-state restrictions. Stay tuned for further updates.

1 See Sean R. Higgins, Edward J. Mikolinski, & Scott G. Ofrias, COVID-19: Federal Judge Rules CDC Not Authorized To Issue Nationwide Eviction Moratorium, K&L GATES HUB (May 10, 2021).

2 Memorandum and Order on Plaintiffs Motion for Expedited Summary Judgment, Defendants Motion for Summary Judgment and Partial Motion to Dismiss, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., 1:20-cv-03377 (D.D.C. May 5, 2021).

3 Id.

4 Notice of Appeal, Ala. Assn of Realtors, 1:20-cv-03377. Although the emergency motion appears to have been filed on behalf of all defendants, the memorandum opinion only addresses DHHS.

5 Emergency Motion to Stay, Ala. Assn of Realtors, 1:20-cv-03377.

6 Judge Friedrich analyzed the four factors necessary to grant a stay: (1) whether the stay applicant has made a strong showing that he or she is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies. Judge Friedrich found that while DHHS did not make a strong showing it was likely to succeed, the court determined that DHHS made a sufficient showing as to the other three factors, and the magnitude of these additional financial losses [if a stay is imposed] is outweighed by DHHSs weighty interest in protecting the public. Memorandum Opinion regarding Defendants Emergency Motion to Stay, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., 1:20-cv-03377 (D.D.C. May 14, 2021) at 9.

7 Notice, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., 1:20-cv-03377 (D.D.C. May 17, 2021).

8 Response in Opposition, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., No. 21-5093 (D.C. Cir. May 24, 2021).

9 Order, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., No. 21-5093 (D.C. Cir. June 2, 2021).

10 Application (20A169) to vacate stay, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., No. 20A-____ (U.S. June 3, 2021).

11 3:21-cv-00359 (M.D. Tenn. 2021).

12 Tiger Lily, LLC v. U.S. Dept of Hous. & Urb. Dev., 992 F.3d 518 (6th Cir. 2021). In this case, the court also found that defendants had little chance of success on appeal, which was enough to deny the stay. That case remains pending.

13 Memorandum Opinion of the Court, The Prop. Mgmt. Connection, LLC v. The Consumer Fin. Prot. Bureau, 3:21-cv-00359 (M.D. Tenn. May 14, 2021) at 6.

14 8:21-cv-01196-WFJ-SPF (M.D. Fla. 2021).

15 Id.

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COVID-19: Moratorium Madness: Will Challenges to the Eviction Order Force the CDC's Hand? - JD Supra

That may be an overstatement. Mr. Wizner, who runs the A.C.L.U.s free speech project, has represented the National Security Agency whistle-blower Edward Snowden and rattled off important cases his lawyers handled. But FIRE, he acknowledged, has taken a strong lead on campuses, where so many consequential battles are fought.

FIRE does not have the same tensions, Mr. Wizner said. At the A.C.L.U., free speech is one of 12 or 15 different values.

Traditionally, the A.C.L.U.s state affiliates monitor and argue free speech cases, but in recent years some shied from such fights. Here are a few examples:

In 2015, University of Missouri students protested racism and established an encampment in a campus quad. When a student journalist tried to take photos and talk to protesters, students and a journalism professor physically blocked the reporter from doing so. The A.C.L.U. of Missouri applauded the courageous leadership of student activists and faculty members, and two national A.C.L.U. officials wrote columns about the protests. They did not mention First Amendment rights.

Four years later at the University of Connecticut, two white students walking home late at night loudly repeated a racial slur. In the ensuing uproar, the university police arrested and charged the students with ridicule on account of race.

The A.C.L.U. of Connecticut demanded that the university hire 10 Black faculty and staff members and require a freshman course on ending racism on campus. It made no mention of the arrests, other than to opine that the police force is an inherently white supremacist institution.

Two days later, Mr. Cole issued a corrective: The students conduct is not criminal, he stated. The First Amendment protects even offensive and hateful speech.

Even the New York Civil Liberties Union, traditionally an independent-minded A.C.L.U. affiliate that has produced several national executive directors and stood at the forefront in defending free speech cases, did not want to talk about those issues. A spokeswoman for its executive director, Donna Lieberman, said, We dont feel well have anything to add.

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Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis - The New York Times

Throughout my life, conservatives have believed the U.S. Constitutionmeans what its authors intended. While it can sometimes be challenging to apply the document's verbiage to modern times, conservatives know that when the founders wrote, "Congress shall make no law" they meant that, "Congress shall make no law." Easy peasy, as the saying goes.

By contrast, liberals have often championed a"living and breathing"Constitutionone that evolves with the times. They don't mean proper change via amendment, but through "enlightened" court interpretations. Like shamans, liberal justices don't obsess over the founders' intentions, but on truths found in penumbras. Go figure, but their divinations usually conform to their own biases.

In a bizarre twist, conservatives are now sounding like liberal jurists rather than traditionalists on some key constitutional questions. Let's take theFirst Amendment, which the founders viewed with particular significance given that they placed it, well, first in the Bill of Rights. These days, conservatives are busy reinterpreting its meaning and have been quite creative with their new interpretations and divination.

For instance, Florida's Republican Gov. Ron DeSantis recently signed alawthat applies governmental moderating standards to social-media companies. It fines tech companies if they suspend political candidates prior to elections, lets the state attorney general and even private citizens sue these companies if they believe they've been treated unfairly, and gives online publishers a list of enforceable editorial conditions.

That's obviously a government restriction on speech given that the government is mandating that private publishers behave in a certain way. Yet writing inAmerican Spectator, the Heartland Institute's S.T. Karnick has discovered such a novel method of interpreting that law that he would have made former Justice Thurgood Marshall, the late justice who was known for his creative constitutional gyrations, quite proud.

"Defenders of Big Tech routinely argue that these companies have a right to do whatever they want because they are not government entities. That is false," Karnickwrote. "The fact that they are in the private sector does not change the definition of the word" censorship. If we erase the distinction between private censorship (which we all do) and government censorship, however, we essentially erase the First Amendment.

The Constitution forbids Congress specifically from regulating private speech, but then the 14thAmendment applied most of the Bill of Rights to the states and their governments. Karnick alsoarguesthat the 10thAmendment gives Florida the right to exercise its authority on this basic-rights issue, which is a rather odd position for a conservative.

If the10thAmendment, which vests many powers in the states rather than the federal government, can be justified to obliterate constitutionally protected rights, then California can ban firearm ownership, despite what the Second Amendment says. If you don't think rights should apply to tech companies whose decisions anger you, then they might not apply when your decisions anger others.

The"Fairness Doctrine,"which mandated equal time for political views on "public" airwaves, offers a template for what conservatives now are suggesting. Its elimination allowed for the proliferation of conservative talk radio, given that such imbalanced programming previously was verboten. What would happen if the Biden administration could force broadcast outlets to balance the views of Mark Levin and Tucker Carlson? Take a guess.

Many of these conservatives are like liberals in another important way. They seek to control private-sector companies because they don't like how they operate. For instance,David Marcuscomplained in a Fox News column last week about the media's Johnny-come-lately coverage of the theory that the coronavirus emerged from a Chinese laboratory.

Yes, the media mostly treated that story as a conspiracy when Donald Trump had postulated itbut are treating it seriously now that Trump is gone. So what? Publications can print whatever they choose, some do a lousy job and all of them are biased. My conclusion is the media should learn from its mistakes, but Marcus' take is more draconian.

"Nobody is checking the fact checkers, and it is time that changed," hewrote. "It's time for government to regulate the fact checking industry." He named Politifact and Associated Press as examples of organizations that need government oversight as they advise social mediaeven though they are journalism organizations.

Marcusclaimsthe First Amendment forbids regulation of "in-house" fact checkers, but he carves out the exception for independent checkerssomething he appears to have pulled from thin air just like the living-and-breathing jurists. "This may seem antithetical to traditional conservative values of small government," he says, but we ought not be "slaves to orthodoxy."

Perhaps the Biden administration should appoint a regulator to fact-check Marcus' writing for the next few weeksand then he can report on the experience. Thanks to First Amendment "orthodoxy" that won't happen, but it's time for conservatives to grow a thicker skin and stop attackingthe constitutional protections all of us enjoy.

This column was first published in The Orange County Register.

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Conservative Attacks on 'Big Tech' Are Turning the Constitution on Its Head - Reason

In February, Rep. Bennie Thompson, chairman of the House Committee on Homeland Security, sued President Donald Trump, his lawyer Rudy Giuliani, and the far-right extremist group the Oath Keepers, among others, for damages arising from the Jan. 6 Capitol insurrection. The lawsuit, brought by the NAACP and soon joined by 10 other members of Congress who were present in the Capitol that day, alleged violations of 42 U.S.C. 1985(1), a Reconstruction-era statute creating civil liability for conspiracies that prevent public officials from holding any office or discharging any duties.

Last week Trump, Giuliani and the Oath Keepers filed their motions to dismiss. The defendants raise a variety of arguments in the motions, some of which are peripheral, speculative or simply incoherent. But the core of the defenses for Trump and Giulianithat the pair were exercising their First Amendment rights in their statements up to and during Jan. 6, and that Trump has absolute immunity for official actions taken during his presidencyare formidable. The lawsuit will likely continue in some form, but its certainly possible that Thompson v. Trump will become Thompson v. Oath Keepers before long.

Presidential Immunity

As one of us argued when the lawsuit was first brought, Trumps strongest argument is that he enjoys absolute civil immunity for actions taken in his official capacity as president. As the Supreme Court explained in Nixon v. Fitzgeraldand as Trumps brief emphasizesformer presidents are entitled to absolute Presidential immunity from damages liability for acts within the outer perimeter of [their] official responsibility. The importance of immunity for official acts of the president, and executive branch officials, is further reflected in the Westfall Act, a statutory tort immunity for federal employees, which Trump argues also bars the suit on the grounds that the allegations arose out of his allegations of political speech, clearly within the scope of his employment.

Presidential immunity is not unbounded. In Clinton v. Jones, another case that Trump cites, the Supreme Court permitted a lawsuit against a sitting president for purely private acts taken largely before President Clinton assumed office. The question, then, isassuming that Jones could be extended to actions taken taken wholly during a presidents stay in officewhether Trumps repeated lies about the 2020 election and his inflammatory rhetoric at the Stop the Steal rally were within the outer perimeter of his office. In other words, the court might have to decide if the outer perimeter encompasses remarks that included If you dont fight like hell youre not going to have a country anymore and We will never give up, we will never concede.

There is no straightforward test for the boundaries of presidential immunity under Fitzgerald. Rather, the Supreme Court has applied a functional approach that stresses the diversity of the presidents duties and responsibilities and the need to preserve as much latitude as possible for the presidents functioning. As the Supreme Court wrote in Fitzgerald, Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve. Thus, even illegal actions do not necessarily fall outside the realm of official duties.

Here, Trumps brief invokes the recent history of election challenges by federal officials to argue that [p]ost-election challenges are not unusual. In a lengthy introduction, Trump points to several instances of Democratic politicians challenging the validity of elections. Of course, these comparisons miss important contextmost obviously, the scope and severity of Trumps attacks on the democratic process and the political disturbance that it caused.

But here Trumps tendency to believe his own lies may paradoxically strengthen his argument, as it did during his first impeachment: By many accounts Trump really did (and still does) believe that the election was stolen. Delusional and baseless as that belief was (and is), Trump appears to have been sincere in believing that questioning the election was necessary to preserve, protect and defend the Constitution of the United States. In his motion, Trump explicitly argues that the President questioning whether election procedures comported with the Constitution and holding a rally for those who also were concerned with fair processare in fact Presidential duties as the Constitution requires that the President preserve, protect, and defend the Constitution of the United States... and take Care that the Laws be faithfully executed[.] Trumps understanding of his constitutional obligations was a perversion of those very obligationswhich was the core of both of his impeachmentsbut behavior grounded in a perverse understanding of an official duty may still remain an official duty.

The First Amendment

Even if Trumps immunity argument fails, his motion to dismiss makes a colorable argument that his rhetoric, however reprehensible, was constitutionally protected speech. And for Giuliani, who as a private citizen cannot claim immunity, the First Amendment is his strongest defense.

As with all cases involving speech that leads to violence, the key case here is Brandenburg v. Ohio: The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (emphasis added). Imminence is a vague term, but the substantial case law devoted to its elaboration has made clear that there is a high bar for punishing speech on the grounds that it leads to violence.

The Brandenburg test applies to civil cases as well. For example, Trump cites NAACP v. Claiborne Hardware Co. (an ironic detail, given the NAACPs leading role in bringing this lawsuit), in which the Supreme Court unanimously overturned a Mississippi Supreme Court decision finding an NAACP that boycotted businesses in Claiborne, Mississippi, liable for lost business. Although the field secretary of the NAACP chapter, Charles Evers (who, in another twist, endorsed Trump 50 years later) reportedly told a large gathering, If we catch any of you going in any of them racist stores, were gonna break your damn neck, the Supreme Court recognized that the speech was protected under Brandenburg because [a]n advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. Trump cites the case to underscore the Supreme Courts position that speech on issues of public matters sits at the highest rung of the hierarchy of First Amendment values.

Of course, there are important differences between the facts of Brandenburg and Claiborne on the one hand and those of Jan. 6 on the other. Most importantly, in neither Brandenburg nor Claiborne Hardware did violence immediately following the speech at issue; on Jan. 6 it did. Indeed, as the court made clear in Claiborne Hardware, [i]f that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. By contrast, Trump ended his Jan. 6 speech around 1:10 p.m., telling his supporters, Were going to the Capitol, and his supporters had broken windows to enter the Capitol at 2:30 p.m.

Ultimately, determining whether a causal connection exists between Trumps and Giulianis speech and the Capitol riot will depend on a careful examination of both the speech and the larger context. Here both sides have plausible arguments. Trump and Giuliani argue in their motions that the majority of their rhetoric was peaceful; Trump, for example, points to his encouragement to the crowd to peacefully and patriotically make your voices heard. And Giuliani also argues that even his most inflammatory rhetoric was, all things considered, mild. His motion describes his now-infamous call to trial by combat as clearly hyperbolic and not literal[.] In truth, from Giuliani it does seem like just one more example of his trademark over-the-top, octogenarian puffery.

But however Trump and Giuliani try to spin their participation in the Jan. 6 rally, this was not the case of some isolated rabble-rousers ranting on a street corner. The president of the United States and his chief lawyerhimself a world-famous public figure and one-time leading presidential candidateused flagrant lies to rile up hundreds of people, many of them armed members of extremist militias, to march down to the Capitol and express their displeasure at the peaceful transition of power. Since Jan. 6, some rioters, including the QAnon Shaman, have even argued in separate criminal proceedings that they would not have stormed the Capitol but for the specific words of the then-President. As one Capitol rioters defense lawyer said in court, The president of the United States of America was telling citizens something evil has happened and you all have to go fix it.

Trump points to the unique features of the situation as a reason to extend even stronger First Amendment protections to their speech. As one of the cases that Trump cites makes clear, political speech is entitled to the fullest possible measure of constitutional protection. And public figures, and the president in particular, can plausibly argue that courts should be particularly careful not to chill their speech, in part because of the same separation-of-powers concern that underlies presidential immunity and in part because of the unique role that presidential communication plays in American democracy.

Theres no obvious answer to the First Amendment arguments in this case, not least because of the profoundly unprecedented nature of what occurred on Jan. 6. The court may be able to avoid a difficult First Amendment analysis in Trumps case if it finds that the lawsuit must be dismissed on presidential immunity grounds. But since immunity is not an option for Giuliani, the court will likely have to engage with the First Amendment at least with respect to him.

Statutory Elements

Constitutional issues aside, Thompsons suit raises standard issues of statutory interpretation and civil procedure. Here Trump, Giuliani and the Oath Keepers make a wide variety of arguments. Some of these are fairly technicalTrump, for example, argues that members of Congress cant sue under 1985 because, as elected representatives, they are neither officers under the United States nor do they hold office under the United States. And the Oath Keepers argue that members of Congress cant sue under 1985 because the Constitution provides that Electoral College votes are to be counted and certified in the Presence of the Senate and House of Representatives, and thus the power at issue is an institutional one held by the two houses of Congress, not by any individual congressperson.

But the core statutory claim that all three defendants make is simply that the conspiracy that 1985 prohibits has not been adequately pleaded. The first requirement of any civil plaintiff is to provide a short and plain statement of the claim showing that the pleader is entitled to relief. Importantly, it is not enough simply to assert facts that would give rise to a cause of action; the plaintiffs allegation must be facially plausible in that it pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. And the more particular the facts the plaintiff alleges, the more likely it is that the complaint will satisfy a motion to dismiss.

As one of us has previously explained, the question of whether Trump and Giuliani in particular conspired to incite a riot against the Capitol is a difficult one:

[C]onspiracy defendants must have a shared objective and [t]he defendant held liable as part of the conspiracy must have intended to bring about the tortious wrong that was the subject of the agreement. Here, the tort is to to prevent, by force, intimidation, or threat one of the 1985 predicates. Based on the planning alleged in the complaint, this should be relatively straightforward to establish in the case of the Oath Keepers and the Proud Boys, two of the named defendants. Establishing this as to Giuliani (or Trump, assuming his immunity claim fails) will be more difficult, as their degree of coordination with the Oath Keepers and Proud Boys remains unknown.

The test for whether a complaint alleges sufficient facts to plausibly establish a claim is notoriously vagueor, as the Supreme Court has euphemistically explained, is context-specific, requiring the reviewing court to draw on its experience and common sense. The evidence is likely sufficient to satisfy pleading standards for the Oath Keepers, given the voluminous physical and digital evidence of that groups involvement in coordinating many of the events of Jan. 6. But a judge could legitimately conclude either way as to the claims against Trump and Giuliani. Of course, if Trumps immunity and Trumps and Giulianis First Amendment claims are accepted, that will render the statutory issues moot.

***

Thompsons lawsuit is far from dead in the water, but, at least with respect to Trump and Giuliani, it faces formidable constitutional and perhaps statutory challenges. And if Thompson is unsuccessful, his legal failure will underscore an important point: Across a number of constitutional, statutory, and procedural doctrines, the U.S. legal system is not well placed to deal with presidential attacks on American democracy. If accountability for Trump and his enablers is to be had, the nations political elites, and the voters who support them, will have to play the leading role.

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Presidential Immunity, the First Amendment and the Capitol Riot - Lawfare

The Supreme Courts decision to hear a case pertaining to New Yorks strict limits on carrying guns outside the home provides conservative justices the opportunity to apply one of their pet theories: originalism.If they are intellectually honest about doing so, the restrictions will stand.

One of the conservatives favorite tropes over the past several decades is a defense of the original intent of the founders. Conservatives have deployed this judicial doctrine against what they decry as judicial activism, rulings on the part of judges that, conservatives insist, abrogate the separation of powers mandated by the founders in the Constitution. Curiously, however, these same conservatives have yet to apply originalismto the Second Amendment.

The proper approach to the Constitution, these originalists argue, is to discern what the founders intended rather than treat the Constitution as a living document that articulates fixed principles that must be adapted to changing historical and cultural circumstances.

As the late Antonin Scalia, the Supreme Court justice most identified with originalism, said in 2012, The Constitution is a static being. A decade earlier Scalia had declared, The Constitution I apply is not living but dead, or as I put it, enduring.

Originalists, for instance, insisted that the Equal Protection Clause of the 14th Amendment should not be applied to sexual orientation and the right to marry. Because the amendment was drafted to protect freed slaves, the argument goes, it has no applicability to same-sex marriage.

For Scalia and other originalists, determining original intent requires,immersing oneself in the political and intellectual atmosphere of the time, somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.

Some conservatives have taken originalism to ridiculous extremes. Years ago, while touring the South with students from the Columbia School of Journalism, I sat in shocked disbelief as Roy S. Moore, former chief justice of the Alabama Supreme Court (and, more recently, defeated Republican nominee for the U.S. Senate) informed us that the Free Exercise Clause of the First Amendment applied only to Christianity because the founders did not know any religion besides Christianity. That assertion, of course, is demonstrably false. The founders were well aware of Jews and Muslims as well as other religions, but it illustrates conservatives almost slavish allegiance to originalism.

Lets return to Scalias comments about immersing oneself in the political and intellectual atmosphere of the time and shift our attention from the First Amendment to the Second Amendment, which reads, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Surely any self-respecting originalist, someone sincerely trying to understand the political and intellectual atmosphere of the time, would not ignore the full text of the amendment. Although the National Rifle Association and other gun advocates routinely quote the second half of the amendment, the right of the people to keep and bear Arms, shall not be infringed, a more honest reading would include the initial clause,A well regulated Militia, being necessary to the security of a free State.

Indeed, historians have demonstrated that the founders were eager to ensure that militias were properly armed against the British. Very likely, therefore, the founders intended to secure the right to bear arms for members of militias. Whenever I see a gun enthusiast swaggering with a firearm, Im tempted to ask (very politely, of course, and in a conversational tone)the name and location of his militia. Tempted, as I say, but Ive found that discretion is the greater part of valor when dealing with someone heavily armed.

Even if we set aside the militia argument, an originalist approach to the Second Amendment, one concerned about the political and intellectual atmosphere of the time, would surely strain to justify a constitutional right to brandish the modern weapons used to create the carnage we have seen again and again. Did the founders really intend to ensure civilian access to the AR-15 essentially the semi-automatic version of the militarys M16 automatic rifle that a mentally unbalanced teenager used to kill 17 in Parkland, Florida? Or the semi-automatic weapons used in Boulder, Orlando, Las Vegas, Sandy Hook, Aurora, San Bernardino, Pittsburgh or Midland/Odessa? (Im sure I missed a few in that accounting.)

A true originalist might reasonably argue for the constitutional right to wield a musket, but modern weapons of war, with their power, range and capacity, would surely go beyond the bounds of original intent. The founders had no knowledge of such weapons. Instead, the National Rifle Association has announced yet another advertising campaign, this one for $2 million, to ensure constitutional rights and thwart any attempt at sensible gun safety, and lawmakers in Texas recently voted to allow anyone to carry weapons without a license.

After still more horrific shootings (Indianapolis, San Jose, Miami Beach) we hear once again that conservatives' thoughts and prayers are with the victims families. Rather than accept another round of empty pieties, we should demand that they, along with Scalias acolytes on the Supreme Court, embrace their own rhetoric and apply the doctrine of original intent to the Second Amendment, thereby clearing the way for sensible measures on gun safety.

(Randall Balmer is a professor at Dartmouth College andauthor of Solemn Reverence: The Separation of Church and State in American Life.)

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My Turn: Whatever happened to 'originalism?' - Concord Monitor