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Category: Constitutional Issues

COVID Lays Bare the Need for Attending to Second Amendment Theory

COVID Lays Bare the Need for Attending to Second Amendment Theory

As angry protesters, some clad in tactical gear and armed with semi-automatic rifles, storm state capitols to decry COVID-related orders, it’s worth asking why the Second Amendment resides in our Bill of Rights. In District of Columbia v. Heller, the Court held that it was there because the founding fathers wanted to protect the existence of citizen militias. But the reason for codifying the right, said the five-Justice majority, did not confine its substantive scope—of law-abiding citizens “to keep and…

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The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

Parties have begun filing lawsuits seeking to “reopen” their states. These lawsuits challenge business closures and stay-at-home orders mandated by state and local governments. The Supreme Court has acknowledged, in the due process context, “the authority of a State to enact quarantine laws and ‘health laws of every description.’” Beyond due process, however, at least one of these lawsuits has raised dormant commerce clause issues, contending that, by ordering businesses to close, the state is unconstitutionally interfering with Congress’ Article…

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Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the RFRA

Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the RFRA

On March 27, the Hillsborough County Emergency Policy Group unanimously issued an order restricting the gatherings of non-essential businesses and services. The Rev. Rodney Howard-Browne responded that he would only cancel church services for the Rapture and that pastors who canceled services were “pansies.” After holding church services on March 29, county authorities arrested Howard-Browne for unlawful assembly and violating the public health emergency order. While the Religious Freedom Restoration Act (RFRA) of 1993 applies only to the federal government,…

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Korematsu in the Age of COVID – A Note on The Constitution in Times of Crisis

Korematsu in the Age of COVID – A Note on The Constitution in Times of Crisis

The case of Korematsu v. United States lives in constitutional infamy as the case which upheld the military policy of Japanese internment during WWII. In doing so, the Court—led by former KKK member Justice Black—did not deny that Japanese internment constituted a deprivation of constitutional rights. Instead, they found that the deprivation was justified due to the fact that the United States was at war. Because of this justification, Korematsu is one of several cases which stands for the proposition…

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South Dakota’s COVID-19 Response is a Battleground for Tribal Sovereignty

South Dakota’s COVID-19 Response is a Battleground for Tribal Sovereignty

In a May 5 post Assistant Attorney General for the Navajo Nation Department of Justice Paul Spruhan argued that Indian tribes should have authority to restrict movement through their territories in order to stem the tide of the COVID-19 epidemic. Those very principles are now being put to the test in South Dakota, where Gov. Kristi Noem has demanded that Oglala Sioux tribal leaders remove the checkpoints set up to regulate traffic through the reservation. Gov. Noem has previously come…

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Closed for Business – Open for Litigation?

Closed for Business – Open for Litigation?

Can a business-closure regulation of commercial property in a pandemic be a taking?  In the midst of a pandemic, it generally falls to government to enact laws and regulations in an effort to curtail the spread of disease. For example, the Supreme Court discusses compulsory vaccination in Jacobson v. Massachusetts and quarantines in Smith v. Turner.  In a liberty-oriented constitutional federalist democratic republic like America, this can be challenging–indeed, the volume of published opinions in this area of law show…

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Surveillance Intrusiveness in a Pandemic

Surveillance Intrusiveness in a Pandemic

Government surveillance capabilities have always been a matter of public concern, but the current pandemic makes the issue especially salient. We set out to discover what Americans think of government surveillance during this crisis. Americans have been inundated with media reports of novel forms of public health surveillance since the crisis began. Apple and Google just announced a partnership to create a smartphone contact-tracing application, which would use Bluetooth to trace a person’s movement and contacts. Apple is also using…

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Protests During the Pandemic

Protests During the Pandemic

As a general rule, the government is permitted to restrict activities, including protesting, during the COVID-19 pandemic. The government can regulate the time, place, and manner of speech in public forums with a content neutral restriction so long as the restriction is narrowly tailored to “serve a significant government interest” and “leave[s] open ample alternative channels for communication of the information.” A shelter-in-place order can constitutionally prevent public gatherings for a period of time (many of these orders are in…

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The Necessity of Firearm Stores During the COVID-19 Pandemic

The Necessity of Firearm Stores During the COVID-19 Pandemic

Gun owners and would-be gun purchasers are arguing that state measures to prevent the spread of the novel coronavirus infringe on their Second Amendment rights. To the extent the premise is correct—the Second Amendment guarantees access to a firearm store—it’s not clear that their conclusion follows. In response to the COVID-19 pandemic, forty-five states have issued statewide stay at home orders. These orders are based upon guidance from the Center for Disease Control and other public health agencies that have…

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