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Open Thread

2026-06-08T07:29:22.310-04:00

By Eugene Volokh - June 8, 2026 at 03:00AM

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Second Amendment Roundup: No Protection for Heroin Trafficker

2026-06-08T02:29:27.278-04:00

By Stephen Halbrook - June 7, 2026 at 10:27PM

On June 2, the Fifth Circuit decided United States v. Squire, which posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation." As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…."

Suspecting him of involvement in a shooting in New Orleans, police secured a warrant to search the home of Curtis Squire, where they found a handgun. While the handgun was not found to have been used in the shooting, Squire was charged with felon-in-possession, 18 U.S.C. § 922(g)(1), based on his prior convictions of conspiracy and substantive counts of possession with the intent to distribute heroin, possession of a firearm with a controlled dangerous substance, and obstruction of justice. In the same case, he had been convicted of a conspiracy count to possess stolen things, and in another case, burglary and unauthorized use of a motor vehicle.

Fifth Circuit precedent recognized § 922(g)(1) to be unconstitutional as applied to some felons, as "[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny." Non-violent felonies such as marijuana possession without evidence of present intoxication were subject to as-applied challenges. As the court wisely wrote, "If Congress could escape Bruen's reach by simply classifying a crime as a felony, we would be confined to uncritically rubber-stamping class-based determinations, subjecting disarmament laws to a form of rational-basis, government-always-wins, type of review." Those words are worth their weight in gold.

By contrast, predicate offenses involving a dangerous or violent crime justified disarmament. For that proposition, the court saw no need to make out an empirical case for the fact that heroin trafficking while armed is dangerous and involves violence. Drug gangs wage war with each other and with law enforcement. Drug traffickers use threats of violence and violence to enforce their illegal dealings as well as to protect their turf. And heroin is a type of poison on which users often overdose and die. One who traffics in heroin poses a physical danger to others.

Instead, the Squire court conducted the usual Bruen analysis of looking at historical analogues, having already concluded that Mr. Squire's ability to have a firearm in his home was covered by the Second Amendment's plain text. The English Militia Act of 1662 directed the disarming of "dangerous and disaffected persons," even though, as Rahimi notes, the Glorious Revolution reduced the Crown's power to do so. Catholics were disarmed as not having loyalty to the government. In the American Revolution, persons refusing to swear an oath of allegiance were disarmed.

Native Americans and African Americans were also disarmed. While use of these analogues is problematic, the court explains: "Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment…. Nevertheless, these laws give us a glimpse into how early Americans understood their right to bear arms, how the legislature could determine classes of people to be dangerous, and the scope of their disarmament."

The Supreme Court should use the opportunity in Wolford, which concerns Hawaii's "vampire rule" banning exercise of Second Amendment rights in most public places, to disown the use of racist historical analogues. My amicus brief in Wolford on behalf of the African American Gun Association makes that point in detail about an 1865 Louisiana black code provision. And as Justice Kavanaugh wrote in his Rahimi concurrence: "Ratified in 1868, [the Equal Protection] Clause sought to reject the Nation's history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution."

Squire sought to distinguish his situation by the fact that he possessed the handgun at home, but the court found that argument to be "mugged by the reality that our historical laws support his disarmament, even in the special confines of his home." (I guess "mugged" is a term Squire would readily understand.) As the court concluded, "§ 922(g)(1) as applied to drug traffickers permits arms dispossession based on dangerousness, not location." That is a narrow holding, as "We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order."

The panel distinguished other courts that have refused to recognize any as-applied challenge to the felon-in-possession ban by postulating the basic difference between dangerous and violent crimes from mala prohibita, victimless crimes such as mere possession of marijuana. We'll see what the Supreme Court says about that when it decides Hemani, which presents the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent." See my post here.

* * *

In footnote 1 of Squire, Judge Clement rejected the argument that the ban exceeds Congress's power under the Commerce Clause as foreclosed by circuit precedent. Unsuccessful attempts to rein in Congress on the issue included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus. Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent. Query whether the Supreme Court will ever return to the premise that local crime is not interstate commerce.

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1776 All-Stars: Samuel Adams Was the Most Libertarian Founder

2026-06-07T09:29:24.781-04:00

By Jack Nicastro - June 7, 2026 at 06:00AM

This is part of 1776 All-Stars, a series about Reason's favorite American Founders. Read more here.

Joanna Andreasson

The American Battlefield Trust describes Samuel Adams as "a rabble-rouser and propagandist" for American independence. His tireless advocacy and organizing for liberty, his limited time in major political office, and his disdain for hereditary aristocracy make him the most libertarian Founding Father.

You can find a couple of libertarian-leaning legislators wandering the halls of the Capitol, but libertarians often operate outside of elective office, as rabble-rousers and propagandists first and foremost. Albert Jay Nock eloquently expressed as much in his 1936 essay "Isaiah's Job." The libertarian's usual task is to fan the torch of liberty and pass it on to the next generation of always-lonely liberty lovers so that the world may be made marginally freer over time.

But Samuel Adams did not merely keep liberty alive in the hearts and minds of a minority of Americans. He fanned so much oxygen into the flame that it grew into the inferno of the American Revolution.

Adams was precocious: He matriculated at Harvard when he was only 14 years old. There, he was introduced to and influenced by the political and moral philosophy of the natural rights theorist John Locke. Adams' philosophical education contributed to his denunciation of hereditary aristocracy, as evidenced by his contempt for the nepotistic governor of Massachusetts, Thomas Hutchinson. Eight years after graduating from Harvard, Adams launched The Independent Advertiser, a publication dedicated to "defend[ing] the rights and liberties of mankind."

Adams wasn't just a firebrand, of course. He was actively involved in patriot politics. Before the revolution, he served as a member of the Massachusetts General Court. He was a delegate to the First and Second Continental Congresses, the Confederation Congress, and the Constitutional Convention. He served as lieutenant governor and then governor of Massachusetts. He also served a while as a Boston tax collector. While his acceptance of that last role might not weigh in favor of the Most Libertarian Founder appellation, his execution of it did: The National Constitution Center reports that he "often did not collect the taxes, especially when his fellow townsmen could not meet their bill."

James Otis Jr., the Massachusetts lawyer credited with originating the "no taxation without representation" slogan, was Adams' political mentor. When the Stamp Act was imposed without colonial consent in 1765, Adams spearheaded the protests that ultimately resulted in the Stamp Act Riots. After London responded by passing the Townshend Acts and stationing 2,000 British regulars in Boston, Adams wrote a piece defending the right to bear arms and the right of revolution. Invoking the English jurist William Blackstone, Adams defended "the right of having and using arms for self-preservation and defence…to protect and maintain inviolate the three great and primary rights of personal security, personal liberty and private property."

A year later, a customs officer shot and killed 11-year-old Christopher Seider. Adams responded by leading a huge funeral procession that honored the young patriot and galvanized opposition to the British presence. The Boston Massacre would occur less than two weeks later.

Adams referenced "Mr. Locke" by name in his 1772 essay "The Rights of the Colonists," but he hardly had to: Adams' essay was minarchism exemplified. Presaging the Declaration of Independence, Adams identified the right to life, liberty, and property, and the means to defend these rights, as natural and inalienable. "The grand end of civil government," he wrote, "is for the support, protection, and defence of those very rights." Men may not renounce these rights, he added, because they are "the gift of God Almighty" and "it is not in the power of man to alienate this gift and voluntarily become a slave."

Speaking of which: Unlike George Washington and Thomas Jefferson, Adams never owned any slaves. When presented with an enslaved girl in 1765, he immediately freed her.

In response to the Tea Act of 1773, which granted the British East Indian Company a monopoly on the tea trade to the colonies, Adams utilized the Boston Committee of Correspondence to coordinate resistance to taxation and trade restrictions. This resistance was realized in the form of the Boston Tea Party, when somewhere between 60 and 90 members of the Sons of Liberty—allegedly at Adams' signal—threw 42 tons of British tea into the Boston Harbor.

Adams was a prolific polemicist and an adept organizer. If not for his persuasive prose and tireless rabble-rousing, the American Revolution might never have happened.

1776 All-Stars, a series about Reason's favorite American Founders:

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Open Thread

2026-06-07T04:29:35.571-04:00

By Eugene Volokh - June 7, 2026 at 03:00AM

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Judge Ryan Nelson (9th Cir.) Arrested for Allegedly Knocking off Man's Glasses in Parking Space Dispute

2026-06-07T01:29:23.411-04:00

By Eugene Volokh - June 6, 2026 at 10:50PM

Still from the surveillance video included in the Idaho State Journal article.

Idaho State Journal (Jimmy Hancock) reports (including video):

U.S. 9th Circuit Court of Appeals Judge Ryan Douglas Nelson faces two criminal charges [for] {misdemeanor battery and malicious injury to property} after police say he battered a man by swiping the glasses from his face, tossing them across an asphalt lot and stomping on them during an April confrontation over a parking space in Idaho Falls….

The alleged victim says Nelson's truck was angled into a parking space — the bulk of his truck in one spot with the right front tire and bumper hanging over the right line and into the spot to the right and the left rear part of the truck hanging over the left line and into the parking space to the left, effectively blocking three parking spots in the lot directly in front of the nearby businesses.

As the alleged victim was exiting his white pickup truck, Nelson started his truck to leave the parking space. That's when the alleged victim spoke.

"I say 'learn how to park,'" the alleged victim said. "I said it twice. That's when he went crazy." …

"When I spoke with Nelson he admitted to knocking his glasses from (the alleged victim's) head but stated he did not touch him. He also admitted to stomping on his glasses," [a police officer's] affidavit states.

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Native Americans Taught Colonists How To Fight—and To Live Without Kings

2026-06-06T08:29:23.671-04:00

By Charles C. Mann - June 6, 2026 at 06:00AM

In a special America 250 issue, Reason takes a look back at our country's founding people and ideas. Read more here.

Joanna Andreasson

The American Revolution took place in Indian country.

This is true in two senses. First, the physical landscape of the Revolution—the fields and forests through which troops marched and fought—was shaped by the continent's original inhabitants. Second, and more important, the mental landscape of the Revolution, from its originating conflicts to its military tactics to the Founders' ideas about freedom and the role of government, was also shaped by the continent's original inhabitants.

Before the arrival of Europeans, New England had been inhabited for at least 11,000 years. Those first peoples didn't like biting insects, thorny underbrush, and poison ivy. They did like berries, nuts, and tubers. Regular burning of undergrowth helped get rid of the bad stuff and promote the good stuff. Natives set fires in spring or fall, when dampness made the flames easy to control. Centuries of burning transformed big swaths of the eastern forest into woodlands so open and parklike that John Smith, of Pocahontas fame, boasted he could gallop a horse through them.

Native villages clustered around New England's many rivers. Cornfields and gardens filled the riverbanks and drifted back into fire-maintained mosaics of berry fields and orchards. Threaded through this edible landscape was a network of trails—although trails may be the wrong term to describe roadways that were as much as 10 feet wide and many miles long.

With the British came epidemic diseases, especially smallpox, that depopulated the villages. Warfare further cleared the land. Settlers erected their new homes atop the old, their fields on land already cleared for farms. The first 50 colonial villages in New England were built on the sites of emptied native settlements. The roads among them were constructed over native roads.

Much as the Thirty Years' War in Europe was fought on the geography created by the Roman Empire, the Revolution was fought on the geography created by native people. When Gen. Benedict Arnold went to capture Fort Ticonderoga, he marched along an ancient Indigenous trade route between Massachusetts Bay and the upper Hudson Valley. Today that road is Route 2, the "Mohawk Trail," the main highway across northern Massachusetts. On their final, victorious march to Yorktown, the army led by Gen. George Washington and French Gen. Rochambeau went down the King's Highway, a network of widened native roads that linked the 13 colonies. Yorktown itself had been one of the capitals of Tsenacommacah (Powhatan Confederacy), the native imperium encountered by the English at Jamestown, the first permanent English settlement in North America. And so on.

In a way that is difficult to imagine now, natives and newcomers lived cheek-by-jowl during the colonial era. Settlers in New England smoked tobacco, planted corn, carried wampum to trade, wore moccasins and deer hide to travel, and fished in canoes (rather than coracles). Indians cooked with steel knives and bowls, cut wood with European axes, and sometimes adopted Christianity. Cultural appropriation was two-way and rampant, and it moved at giddy speed.

As the decades went by, mingling hardened into acrimony, but the mutual influences remained. When natives and newcomers came to blows, Indians carried English weapons but attacked in their own style, with surprise raids by small parties darting in from the trees—what the missionary John Eliot called "the skulking way of war." In the first big "Indian war," the Pequot War of 1636–38, colonists shocked by Indigenous military victories ended up adopting their opponents' tactics wholesale. "God pleased to show us the vanity of our military skill, in managing our arms, after the European mode," Eliot wrote with chagrin. Fifty years later came King Philip's War (1675–78). This time, the English waged war like natives—and won decisively.

The lessons carried over to the Revolution. "They did not fight us like a regular army, only savages, behind trees and stone walls," one British soldier complained after the opening Battle of Lexington and Concord. The colonists, he wrote, are "full as bad as the Indians." After the war, British Lt. Thomas Anburey grumbled that the rebels, infected by "the Indian's idea of war," "delight more by murdering from the woods, walls and houses, [rather] than in shewing any genius or science in the art military."

Both sides wanted the powerful Haudenosaunee (Iroquois) to fight on their side. In May 1775, the colonial militia leader Ethan Allen begged them to "Join with me and my Warriors"—the Green Mountain Boys, as his guerrilla force was known. "I know how to shute and ambush just like Indian and want your warriors to come and see me and help me fight Regulars. You know they Stand all along close Together Rank and file and my men fight as so as Indians Do." The Haudenosaunee, a league of six Indigenous nations, was leery of involvement in what it saw as a foreign civil war. But individual members were drawn in on both sides, splitting the confederacy. Swept into the fight alongside them were another dozen native societies.

The contribution of native-style warfare—and natives themselves—to the Revolution should not be exaggerated. Washington was leery of both Indians and their tactics. Throughout the conflict, he sought to fight European-style, with massed armies blasting away at each other in open fields—although he did sometimes look for soldiers who were, as he put it, "accustomed to the irregular kind of wood-fighting practiced by the Indians." Gradually he warmed to working with such allies as the Iswa (Catawba) and Lënapeyok (Lenape), but he relied on them only for specialized roles—scouting, spying, and safeguarding the frontier—rather than as infantry troops in pitched battles.

If natives' impact on the battleground was limited, their impact on the war's origins, political and intellectual, was enormous.

A turning point occurred in 1763. In January, European nations signed the Treaty of Paris, which ended the Seven Years' War between Britain and France (and their respective allies). Dismaying the war-weary British government, Pontiac's Rebellion erupted barely four months later. It was a monthslong, broad-scale assault by a coalition of native nations on British forces in Michigan and the Ohio Valley. ("Pontiac" was the English name for Obwaandi'eyaag, who led the Odawa, or Ottawa, in Michigan.)

NATIVE LANDS ESTABLISHED BY PROCLAMATION OF 1763

Map: Courtesy of Charles C. Mann

In October, seeking to defuse what was becoming a long and costly conflict, King George III banned colonists from moving into land west of the Appalachians. The royal proclamation gave natives permanent title to what had been the eastern half of France's American holdings—all of the land between the Mississippi River and the crest of the Appalachian Mountains, plus the western half of Georgia, all of Florida, and a big chunk of Canada. It blocked off an area of something like 600,000 square miles.

Leave aside natives' annoyance at being "given" title to land they had occupied for generations. Colonists reacted with fury. From their point of view, the king was taking back the free land he had promised them—the reason that many had left their homelands, the goal of fighting the Seven Years' War. Worse, he was giving it to "savages."

Nowhere was the anger more volcanic than in Pennsylvania, through which many migrants had intended to move into the rich Ohio Valley. Even as the conflict with Pontiac continued, tensions rose between Pennsylvania's colonists and their government in Philadelphia. Settlers harassed soldiers ordered to enforce the king's proclamation. Pennsylvania's legislature, Benjamin Franklin moaned, was under siege by a "mad armed Mob."

British Gen. Thomas Gage and Pennsylvania Gov. John Penn initiated peace talks with Pontiac in March 1765. The negotiators left Philadelphia with a caravan of more than 80 packhorses loaded with goods as guarantees of London's words. Viewing the talks as a sellout, a backwoods militia known as the "Black Boys" raided the supply train, attacked English forts, and kidnapped English soldiers. Penn convened a grand jury to charge the Black Boys. It refused to indict them.

Encouraged, the Black Boys seized much of western Pennsylvania, controlling traffic through the area, assaulting British forces, even issuing their own passports. The conflict continued until July 1776, when Pennsylvania, after a constitutional convention dominated by the Black Boys, became the first colony to establish an independent government, one intended to be responsive to the popular will. It was the first big revolt against British authorities—a dress rehearsal in miniature for the Revolution that was to follow.

Anger about Pontiac's rebellion and the Proclamation of 1763 bubbled into the Declaration of Independence. When the Declaration decries the king's support of "the inhabitants of our frontiers, the merciless Indian Savages," it is referring to his attempts to compromise with the native coalition in the Ohio Valley. And when the Declaration denounces the king's measures to "prevent the population of these States"—that is, to discourage immigration to the colonies—by "raising the conditions of new Appropriations of Lands," it is talking about the Proclamation.

The Revolution had causes other than the Proclamation: taxation, trade controls, forcing colonists to house troops, and so on. One of the most important was one of the most intangible: the rebels' beliefs about freedom, liberty, and governance. These, too, were deeply entwined with North America's original inhabitants.

The first European ventures into North America occurred as Enlightenment figures such as John Locke, Jean-Jacques Rousseau, and Voltaire were questioning Europe's absolute monarchies, state religions, and rigid class rules. All of these thinkers were fascinated by the recently revealed existence of Native Americans—living, breathing products of societies with wholly different social, political, and spiritual traditions. All of them made Indians central to their work.

None of these thinkers were ethnographers in the modern sense. The "natives" featured in their work mainly are foils—convenient human illustrations for ideas. Consider the protagonist of Voltaire's popular novella L'Ingénu (1767). A naive young man, half-French and half-Wendat (Huron), he was less an actual character than a vehicle for the author to mock French hypocrisy and corruption. Locke, interested in the origins of society, used Indians in his work as examples of early human development, preserved as if in amber. ("In the beginning," he wrote, "all the world was America.") Rousseau had similar views. The difference was that Locke didn't think much of these supposedly primitive societies and Rousseau admired them.

At the same time, other Europeans actually were interested in native life—and drew lessons from it. Again and again, foreign visitors to New England and Quebec described their inhabitants as having vastly more personal liberty and autonomy than Europeans. "They imagine that they ought by right of birth, to enjoy the liberty of wild ass colts, rendering no homage to anyone whatsoever," wrote Paul Le Jeune, a Jesuit missionary in France's Canadian colony from 1632 to 1649. "They have reproached me a hundred times because we fear our Captains [nobles and kings], while they laugh at and make sport of theirs."

Unlike Locke, Rousseau, and Voltaire, Le Jeune had a conception of native life that was basically accurate. As he reported, native rulers had little formal authority; they had to persuade others to follow their ideas. The Haudenosaunee, for example, have a tadadaho, who presides over the Grand Council, which itself was comprised of male leaders of the league's six member nations. Tadadaho is traditionally a lifetime appointment, like a king, but the role is more like today's speaker of the House—someone who shapes the agenda but must marshal the support of the other representatives to make anything happen. Even if the tadadaho won the Grand Council's backing, he could not act without the approval of a second, all-female council, traditionally formed of clan mothers.

Unlike European kings and nobles, Haudenosaunee leaders could be deposed if their people lost faith in them (although this was relatively uncommon). They had to have the consent of the governed and worked hard to keep it. Were the colonists who rebelled against King George and established a republic inspired by this? Surely not directly. But it seems clear that the colonists on the Atlantic seaboard were imbued with views about freedom that were strikingly different from those of their ancestors, and that they identified those views with native people.

Europeans at the time widely believed in the "Great Chain of Being," in which society was organized by divine mandate into a rigid social hierarchy. At the top was the king, whose authority was endowed by God. One rung below him was the nobility, whose noble blood made them superior to the merchants and peasants below. So important was the social ladder that European nations had sumptuary laws prohibiting commoners from passing themselves off as their betters by donning their attire—in England, for instance, only the nobility could wear beaver-felt hats. Failing to kowtow to people of superior status was a violation of the Christian order. It was sinful, unthinkable, unnatural.

The Wendat, Haudenosaunee, and other northeastern Indigenous groups thought all that was hooey, and they loudly told this to the Europeans. They "brand us for slaves, and call us miserable souls, whose life is not worth having, alleging that we degrade ourselves in subjecting ourselves to one man [the king] who possesses all the power," reported the Baron de Lahontan, who spent nine years in French Canada. De Lahontan's accounts of his American sojourn, translated into half a dozen languages, include a 1703 book of "dialogues" with a Wendat leader, Kondiaronk, who scoffed at European pretensions. "I have the absolute disposal of myself, I do what I please," Kondiaronk told de Lahontan. The baron, he said, was a fool for "choos[ing] rather to be a French slave than a free Huron."

The appeal of native freedom was anything but theoretical. The Swedish botanist Pehr Kalm spent three years in the Northeast and returned with a best-selling account of colonial life. When Indians captured settlers in war, Kalm reported, most "never wanted to return….They found the Indians' independent way of life preferable to that of the European." Similarly chagrined observations came from Benjamin Franklin. By the time of the Revolution, wrote the aristocratic settler John Hector St. John, "thousands" of Europeans had joined native societies, "and we have no examples of even one of those Aborigines having from choice become Europeans!"

An instinctive dislike of overweening hierarchy is lodged deep in the U.S. character. Some of that surely is because settlers came to the Americas already dissatisfied with what Europe offered them. But one cannot dismiss the impact of seeing other, freer ways of life up close.

When the colonists swarmed the docks of Boston for the Boston Tea Party, they began a call for liberty that led to the Revolution. What did those colonists do to announce their quest for freedom? They disguised themselves as Indians.

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Open Thread

2026-06-06T07:29:22.201-04:00

By Eugene Volokh - June 6, 2026 at 03:00AM

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Review: Visit Independence Hall, Where Founders Signed Their Own 'Death Warrants'

2026-06-05T09:29:41.490-04:00

By Eric Boehm - June 5, 2026 at 06:00AM

The signing of the Declaration of Independence is often seen as a victory, a vindication of a free people's "self-evident" rights in the face of an oppressive government. Yet nothing was certain to the 56 men who risked their lives, their fortunes, and their sacred honor by putting their names to parchment on that fateful July day.

The occasion was not celebratory. Benjamin Rush, a Philadelphia physician who signed the Declaration, recalled in a famous 1811 letter "the pensive and awful silence which pervaded" the final roll call as the signers approved "what was believed by many at that time to be our own death warrants."

It's impossible to know exactly how that felt. But the best way to get a feel for it is to stand in the very room where the Revolution was declared: Independence Hall in downtown Philadelphia.

Even amid the inevitable tourists and schoolchildren, there is a sense of seriousness, and one of uncertainty and trepidation. Underlying it all is a question that remains relevant: If your government turned authoritarian and disrespected fundamental rights, what would you do?

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Open Thread

2026-06-05T07:29:37.012-04:00

By Eugene Volokh - June 5, 2026 at 03:00AM

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Today in Supreme Court History: June 4, 1923

2026-06-04T09:29:25.513-04:00

By Josh Blackman - June 4, 2026 at 07:00AM

6/4/1923: Meyer v. Nebraska decided.

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Open Thread

2026-06-04T07:29:23.225-04:00

By Eugene Volokh - June 4, 2026 at 03:00AM

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Trump's Dubious New Section 301 Tariffs

2026-06-04T00:29:25.831-04:00

By Ilya Somin - June 3, 2026 at 08:17PM

Last night, the Trump Administration revealed plans to use Section 301 of the Trade Act of 1974 to impose massive new tariffs on imports from some 60 countries around the world, under the pretext that this is necessary to combat their importation of goods that use forced labor:

The Trump administration has taken a key step toward rebuilding a tariff wall around the U.S. economy, announcing new restrictions on goods from 60 trading partners that U.S. officials say lack sufficient prohibitions on the use of forced labor.

Under the plan, goods from nations that the U.S. says have not banned forced labor, including China, India, Britain and Japan, will face 12.5 percent tariffs. Goods from the European Union, Canada, Mexico and other nations that the U.S. says have failed to enforce bans will face 10 percent levies, the administration said in a late-night announcement Tuesday.

While he's relying on a different statute, the tariffs Trump plans to impose here seem very similar to the 10% Section 122 tariffs recently invalidated by the US Court of International Trade, and the International Emergency Economic Powers Act (IEEPA) tariffs struck down by the Supreme Court in February, in a case I helped bring. The tariff rates (10-12.5%) are similar and so are the various exemptions outlined by the administration.

In addition, I am extremely skeptical of the claim that all of these sixty countries - including numerous affluent liberal democracies - are actually more lax about importing goods produced by forced labor than the US is. And if forced labor were really the concern, there would be no reason to impose massive tariffs on virtually all imports from those nations, even though the vast majority of those goods have little or no connection to forced labor. It sure looks like the forced labor issue is just a pretext for large-scale protectionism of the same kind courts blocked earlier. This looks like yet another presidential power grab seeking to usurp Congress' authority over tariffs, granted by Article I of the Constitution.

In an analysis on Twitter/X Georgetown University law Prof. Peter Harrell - a leading expert on international trade law - notes that the "proposed tariffs are pretty clearly a straightforward attempt to recreate the IEEPA tariffs, and not the sort of detailed and precise country-by-country actions that 301 has been used for in the past." He adds that "while there is some country-by-country analysis of how individual investigated countries either do not have or do not enforce prohibitions on importers made by forced labor, there is not detailed country-by-country analysis about how those imports harm US commerce [as Section 301 requires]. Instead, USTR relies on the case studies and more general, global macroeconomic studies of forced labor in the global economy to argue harm."

In a recent article on Just Security, legal scholars Gregory Shaffer and Jeremiah May argue that the use of Section 301 to impose sweeping tariffs on many nations and goods at once is vulnerable to the same types of nondelegation and "major questions" challenges as helped bring down the IEEPA tariffs. The major questions doctrine requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance."

I agree with most of their analysis, and would add that three of the six majority justices in the IEEPA Supreme Court case (Chief Justice Roberts, Barrett, and Gorsuch) relied in large part on the major questions doctrine in ruling against the IEEPA tariffs. The same is true of the Federal Circuit ruling against those tariffs; Federal Circuit precedent is binding on the US Court of International Trade, which would review any challenges to the Section 301 tariffs. The imposition of massive tariffs imports from 59 countries, plus all of the European Union, is undeniably a major question, just like the IEEPA tariffs were. And, like those tariffs, they will - if allowed to remain in place - raise prices for consumers and inflict massive damage on the US economy, while further poisoning relationships with our allies and trading partners.

Furthermore, the Supreme Court majority in the IEEPA case emphasized that "the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Chief Justice Roberts went on to note that, while some statutes do grant the president tariff authority (among which they specifically cited Section 301), "[w]hen Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits," including "demanding procedural prerequisites." As Shaffer and May explain, Section 301 targets specific "unfair" trade "policies" and "practices" and is not a general grant of tariff authority to be used whenever the president wants. The proposed Section 301 tariffs, they emphasize, go far beyond anything done under Section 301 in the past.

Ultimately, the new Section 301 tariffs appear to be yet another attempt to give the president a blank check to impose tariffs at will. The same is true of the administration's plans to use Section 301 to target "structural excess capacity," which rely on the absurd premise that it is somehow an unfair trade practice for countries to be able to produce more goods than they can use themselves.

The new Section 301 tariffs cannot go into effect until there is a notice and comment period. Interested groups can submit comments until July 6. Peter Harrell urges stakeholders to submit comments opposing the tariffs, and I agree! They are unlikely to change the administration's position, but could potentially help plaintiffs in future litigation against the tariffs, when and if they are imposed.

Should the administration go ahead with these plans, I urge industry groups, public interest organizations (like the Liberty Justice Center, which I worked with on the IEEPA case), and state governments to bring lawsuits challenging the Section 301 tariffs. The IEEPA and Section 122 cases show that courts are willing to strike down massive tariff power grabs, and will not give unlimited deference to the executive. That doesn't guarantee victory. But it is grounds at least for cautious optimism.

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Open Thread

2026-06-03T07:29:42.823-04:00

By Eugene Volokh - June 3, 2026 at 03:00AM

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Trump's Self-Promotion Is Always Shameless and Sometimes Illegal

2026-06-03T01:29:22.932-04:00

By Jacob Sullum - June 3, 2026 at 12:01AM

President Donald Trump has a long history of naming things after himself, including Trump Tower, the Trump National Golf Club, the Trump Taj Mahal casino, Trump University, Trump Steaks, Trump Vodka, and Trump: The Game. But as he discovered last week, such self-promotion can be legally problematic when it requires congressional approval.

On Friday, a federal judge ruled that Trump's appointees exceeded their statutory authority when they attached his name to the John F. Kennedy Center for the Performing Arts. The decision was the latest reminder of the president's tendency to trample the rule of law in his rush to glorify himself.

The Kennedy Center's Board of Trustees, which is chaired by Trump himself and stacked with his cronies, approved the name change on December 18, and it was immediately reflected in the lettering on the front of the building. The new name was also featured in the center's website, logo, and emails.

Not so fast, said U.S. District Judge Christopher Cooper: Congress had clearly established the Kennedy Center's name, and only Congress could change it. Trump was predictably perturbed by that assault on his vanity, saying, "Judge Cooper should be ashamed of himself!"

The implication that Trump is familiar with the concept of shame seemed inconsistent with the conduct at issue in that case. And this was by no means the only time that Trump has courted controversy by using his position to quench his thirst for public adulation.

A couple of weeks before Trump slapped his name on the Kennedy Center, the State Department announced that the U.S. Institute of Peace, a think tank that Congress established in 1984, had been renamed to honor "the greatest dealmaker in our nation's history." That change, which likewise was reflected on the front of the building, was similarly hard to reconcile with federal law.

Trump also has lent his name to a new class of battleships. But unlike the Kennedy Center and the U.S. Institute of Peace, those vessels have not been built yet and may never be funded by Congress.

The "Trump Gold Card" seems even iffier. That program, which Trump purported to authorize in September, is supposed to lure foreign investors by giving them permanent resident status in exchange for a "contribution" of $1 million to the U.S. Treasury. But because Congress has not approved any such program, the legal rationale for it requires rewriting the statutory criteria for EB-1 and EB-2 visas, which hinge on qualifications distinct from sheer wealth.

The Trump administration nevertheless created a website that offers a place in line to wealthy would-be immigrants who fork over a $15,000 "processing fee." But given the program's dubious legality, that promise seems just as phony as the outsized mockup of the Trump Gold Card that the president displayed in the Oval Office last fall, which featured the Statue of Liberty, a bald eagle, a head shot of Trump, and his signature.

Trump's face and signature are also central elements of the "commemorative U.S. passports" that the State Department plans to start issuing soon, ostensibly in honor of the nation's 250th birthday. Trump's signature, but not his face, will appear on American currency too, occupying the spot usually reserved for the U.S. treasurer—a revision that Treasury Secretary Scott Bessent describes as a "powerful way to recognize the historic achievements of our great country and President Donald J. Trump."

Both of those tributes are unprecedented but legal. The same cannot be said of the fanciful plan to create a $250 bill featuring Trump's picture, which would violate federal law in two ways: by honoring a living person and by creating a new denomination.

Last year, Rep. Joe Wilson (R–S.C.) introduced a bill that would have eliminated those obstacles and required the Treasury Department to "commemorate the semiquincentennial of the United States" by producing the Trump bills. But that legislation went nowhere, underlining a point that Trump already understood: Doing things the legal way is hard.

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Today in Supreme Court History: June 2, 1952

2026-06-02T10:29:19.017-04:00

By Josh Blackman - June 2, 2026 at 07:00AM

6/2/1952: Youngstown Sheet & Tube Co. v. Sawyer decided.

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1776 All-Stars: Benjamin Franklin Reminds Us To Just Do Things

2026-06-02T10:29:18.063-04:00

By Eric Boehm - June 2, 2026 at 06:00AM

This is part of 1776 All-Stars, a series about Reason's favorite American Founders. Read more here.

Joanna Andreasson

When Benjamin Franklin was 17 years old, he did that most American of activities: He ran away from home.

More precisely, Franklin fled an apprenticeship in Boston and made his way to Philadelphia, the city with which he is still synonymous. Under the laws of the time, this made Franklin a criminal and a fugitive. Perhaps that taught the gifted youngster something about how to deal with unjust laws.

Franklin was not an immigrant by the technical, bureaucratic meaning of the word. Still, he arrived without wealth or connections in his new city, and he got to work building both.

While laboring in a print shop, the 21-year-old Franklin formed a debating society whose members committed to respectful discussion of science, morals, and philosophy. The members of the Leather Apron Club were soon doing much more: They founded Philadelphia's first lending library, first fire department, and other civic institutions meant to benefit the growing city.

It turns out that you can just do things, as Franklin and his friends demonstrated.

After opening his own printing press and starting a newspaper, Franklin became an American Aesop. His annual Poor Richard's Almanack often reminded readers that public liberty depends on private virtue and discretion. "Don't throw stones at your neighbors, if your own windows are glass," reads one of the aphorisms that have long outlived him. "Wish not so much to live long as to live well," goes another, a personal favorite.

Franklin lived long and well and took on many roles. He was an inventor, a scientist, a rabble-rouser, a diplomat, a philanderer, and (yes, unfortunately) a politician and America's first federal postmaster.

When you started reading this article, you likely conjured an image in your head that includes a kite, a key, and a lightning bolt. Whether Franklin ever actually conducted that famous experiment is somewhat uncertain, although he was undeniably fascinated by electricity and its possible uses. More certain is that he designed the first lightning rod and thus saved untold scores of buildings from storm-related fire damage.

Perhaps more than any other Founder, Franklin left a legacy that would be worth remembering and celebrating even if the colonists had remained loyal subjects to the British crown. That is to say, in a world where politics did not matter at all, Franklin's achievements would still make the history books. He was the embodiment of the American Enlightenment. Max Weber singled out Franklin as the exemplar of the Protestant work ethic that makes capitalism successful. He was personal friends with Voltaire!

If you had to sum it all up in one sentence: Franklin was an optimist.

One doesn't run away from home except in the hope that things could be better somewhere else. Similar can be said of the other events in his life, including the American Revolution itself. The ideas—rhetorical, philosophical, and scientific—that Franklin explored and articulated helped lay the groundwork for experiments that are ongoing. That same momentum animated the civic institutions that Franklin helped create.

Franklin didn't always have it all figured out, but he never stopped trying. He owned slaves but argued for abolition in his later years. He was endlessly curious and invited others to chase the horizon too.

"The rapid Progress true Science now makes, occasions my Regretting sometimes that I was born so soon," Franklin wrote to a friend in 1780, when he was 74 years old. At some time in the distant future, he speculated, it might even be possible for man to conquer gravity, allowing "easy Transport" of "large Masses."

As I was writing this, America launched a massive rocket carrying four astronauts to circumnavigate the moon. I imagine Franklin would be delighted.

Near the end of his life, as Franklin sat through the Constitutional Convention of 1787, he reportedly considered another horizon. On the back of the chair occupied by George Washington as he presided over the convention, there was a carving of half a sun. "I have the happiness to know that it is a rising and not a setting sun," Franklin declared as the convention ended—or so they tell you when you visit Philadelphia's Independence Hall, where the famous chair still resides.

It is sometimes difficult to feel like America is still lit by a rising sun. But politics is not what really matters, as Franklin's life reminds us. No doubt he'd argue that there is better still to come, as long as you're willing to chase it.

1776 All-Stars, a series about Reason's favorite American Founders:

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Open Thread

2026-06-02T06:29:32.618-04:00

By Eugene Volokh - June 2, 2026 at 03:00AM

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Surging Antisemitism Threatens Jews and America

2026-06-01T11:29:31.770-04:00

By J.D. Tuccille - June 1, 2026 at 07:00AM

In Santa Monica, California, last week, a Jewish couple was attacked by a man with a vicious dog and a baseball bat. Several weeks ago, synagogues and homes were vandalized with swastikas in New York City, and then a mob hostile to the Jewish state of Israel clashed with Jews outside a synagogue in Brooklyn. As disturbing as those incidents were, they paled in comparison to the fiery attack on a Michigan synagogue in April, the murder of two Israeli embassy staffers last May, and other violent crimes.

An Explosion of Antisemitism

These incidents come against a backdrop of revived antisemitism or—to give it its proper name—Jew-hatred around the world. In the United States, re-mainstreaming of Jew-hatred began among popular influencers like far-left Hasan Piker and far-right Nick Fuentes but is now spreading among regular Americans.

Few officeholders are as openly bigoted as Rep. Ilhan Omar (D-Minn.), who constantly voices anti-Jewish and anti-Israel statements before walking them back. Increasingly, though, Jewish lawmakers complain of an "explosion of antisemitism" directed at them by the public, as recently reported by Axios's Andrew Solender. It's likely to get worse.

In April, Pew Research polling revealed that "60% of U.S. adults have an unfavorable view of Israel, up from 53% last year," particularly among Democrats and younger Americans.

Examining the Fall 2025 Yale Youth poll, Samuel J. Abrams and Steven M. Cohen of the American Enterprise Institute (AEI) found that "respondents who opposed Israel's existence were far more likely to agree that Jews in the United States are more loyal to Israel than to America — a claim with a long and poisonous history. They were far more likely to support boycotting Jewish American-owned businesses in response to the war in Gaza, a form of collective punishment aimed explicitly at Jews as Jews. And they were far more likely to agree that Jews have too much power in American society, one of the most enduring antisemitic canards."

Antizionism Is Just Repackaged Hatred of Jews

Some of the revived animus against Jews is open and explicit, but much of it is barely camouflaged as "antizionism," implying hostility to Israel and not to all Jews. Apologists for this tactic point to a recent poll finding that only a minority of American Jews identify themselves as Zionist which, they claim, means attacking Israel isn't bigotry. But the same poll finds that 88 percent of Jews "believe Israel has the right to exist as a Jewish, democratic state," which is the definition of Zionism. As "Zionist" has become a slur, Jews have backed away from the word, but not from support for the world's sole majority-Jewish country and home for almost half of all Jews that it represents.

Or, as AEI's Abrams and Cohen concluded, "the claim that anti-Israel activism bears no relationship to antisemitism is no longer merely unconvincing. It is empirically false."

Attacking Zionists really is a proxy for attacking Jews, as if we couldn't guess that from the violence and vandalism directed at synagogues and Jewish-owned businesses. While every government is subject to criticism for its conduct, reframing hatred of Jews as exaggerated concern about the existence of a foreign state is a convenient way to tailor an ancient hatred for modern sensibilities.

"If we think about the core libels of antizionism today—colonizer, apartheid, and genocide—they're really just the inverse values of the moral codes of our time," says anthropologist Adam Louis-Klein. "They're not necessarily talking about Jews having big noses or controlling the banks. Some do, but they don't have to. So they say, 'Well, it's not antisemitic,' and their intuition is somewhat justified as long as we're associating antisemitism only with its older forms." He points out that "antisemitism" originated as a self-identifying term among Jew-haters meant to convert ancient bigotry into a racialized 19th-century ideology; the term "antizionism" again reinvents the same bigotry for the 21st century. That reframing has deep roots in efforts by totalitarian governments to reshape morality.

Totalitarian Roots and Foreign Funding

In an April report, the Network Contagion Research Institute (NCRI) examined how totalitarians engage in "an inversion of morality, reframing tyranny as justice and evil as righteous action" to influence public opinion. "We focus in part on anti-Israel ideology, which played a central role in earlier anti-Western propaganda systems, including Soviet and Nazi campaigns, because the same narratives have reemerged today under the banner of antizionism. Appealing to the idea of universal human rights for its legitimacy, the current antizionist ideology presents itself as morally principled and anti-oppressive."

Many modern mouthpieces for Jew-hatred don't even disguise their totalitarian connections. Hasan Piker endorses communism and says, "China is probably the closest, I would say, to an example that we should follow." Nick Fuentes manages to simultaneously praise both Adolf Hitler and Joseph Stalin, reinforcing the fact that there's little point in differentiating among brands of totalitarianism.

Ironically, researchers find that much funding for antizionist (and anti-American) groups in the U.S. comes from Qatar and from a network linked to the Chinese Communist Party that's managed by Neville Singham, a wealthy socialist who made his money in the U.S. and then moved to Shanghai. So much for arguments by bigots who allege that Jews have divided loyalties between Israel and the U.S. At least Israel, like America, has open debate and elections. China and Qatar do not.

Revived Jew-Hatred Threatens American Individualism and Liberty

The reemergence of Jew-hatred is worrying for Jews, their friends, and their families, for obvious reasons. But revived collectivist animus toward a group should concern everybody. Historically, Jews have been an easy target for bigots, who change only the rhetoric they use to justify their actions. But once one group is vilified, it's easy to extend collective hatred to other groups that can be singled out for ill treatment. The bigotry that threatens Jews undermines the whole individualist liberal order.

Enemies of the United States recognize the threat. Western societies, as NCRI pointed out in April, are based on "principles and liberties enshrined by pluralistic, liberal democracies; among them, freedom of speech, equality under the law, tolerance of difference, individual rights and freedoms, the rule of law, and free, fair, and regular elections in a representative democracy." Reviving collective hatred and framing it as a righteous movement undermines the philosophical foundations of our freedom.

By whatever name, Jew-hatred is back. It's a threat to Jews, but it's also a danger to a liberal society and the values that underlie the free, individualistic American way of life.

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Brickbat: Who's Laughing Now?

2026-06-01T08:29:42.288-04:00

By Charles Oliver - June 1, 2026 at 04:00AM

Police in Ohio arrested Waterford High School teacher Matthew Warden on two charges of assault for allegedly punching one student in the jaw and trying to punch another during gym class. According to court documents, Warden told the students they were "pissing him off" and instructed them to "stick out their chins" before throwing punches. He missed one student but made contact with the other, reportedly leaving him with a red mark and jaw pain. Investigators said Warden confirmed that the incident happened but claimed he was "only joking around" with the students. School officials say the district is still investigating.

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Open Thread

2026-06-01T04:29:37.268-04:00

By Eugene Volokh - June 1, 2026 at 03:00AM

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Today in Supreme Court History: May 31, 1860

2026-05-31T09:29:20.796-04:00

By Josh Blackman - May 31, 2026 at 07:00AM

5/31/1860: Justice Peter Daniel's death.

Justice Peter Daniel

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Open Thread

2026-05-31T05:29:37.911-04:00

By Eugene Volokh - May 31, 2026 at 03:00AM

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A Private Reprimand From The Fifth Circuit With Dissents To Make It Public

2026-05-31T02:29:33.929-04:00

By Josh Blackman - May 30, 2026 at 11:28PM

I continue to remain confounded by the Eleventh Circuit's Judicial Council decision to make Judge Betsy's reprimand private. (Yes, I know her name, but Judge Betsy has stuck.)

As I noted in a post quickly written before sundown yesterday, the Council identified a clear conflict of interest, but left the public unaware of which judge possesses that conflict. How can litigants possibly determine if a judge should be disqualified if they do not know the identity of the judge? I would propose a per se rule: whenever the Council identifies a clear conflict of interest, the reprimand must be public.

How could it be that not a single member of the Eleventh Circuit Judicial council felt compelled to dissent? Indeed, the Eleventh Circuit does not even publish the names of the members of the Council on the memorandum, other than Chief Judge Pryor. I've been unable to find the current members of the Council anywhere online. I found another order from August 7, 2025 that lists the following names:

WILLIAM PRYOR, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges; ALTONAGA, PROCTOR, HOWARD, GARDNER, BEAVERSTOCK, MARKS, BAKER, and WINSOR, Chief District Judges.*

I understand this membership may change every year, so I'm not sure which members remain.

I would gladly point to several distinguished members of the Fifth Circuit who took a different path.

In May 2024, the Fifth Circuit Judicial Council issued a private reprimand of a judge. The facts were serious:

A law enforcement agency filed a complaint against a United States district court judge. The complaint alleges that the subject judge revealed sensitive and confidential information regarding a law-enforcement public corruption investigation, which the judge learned in a sealed bench conference in a criminal case pending before him, to a family member. The complainant alleges that the information was eventually relayed to the target of the investigation, and that the disclosure allowed the target to attempt to obstruct the investigation and brought the investigation to an early end. The target of the investigation was convicted of obstruction of justice and other offenses.

But the "subject judge" was not outed because he was really, really sorry, and promised it would never happen again. (Sound familiar?)

In a letter to the Special Committee, the subject judge stated that he would never intentionally interfere with a law enforcement investigation and he understands the risks and consequences of disclosing confidential information about government investigations. He also committed to avoid such disclosures in the future. The Special Committee found the judge's representations to be sincere and that his commitment to avoid such disclosures in the future appropriately addresses their concerns raised by the complaint.

Nineteen members of the Judicial Council considered this case:

RICHMAN, Chief Judge, ELROD, STEWART, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, OLDHAM, WILSON, ZAINEY, JACKSON, FOOTE, MILLS, REEVES, KINKEADE, ROSENTHAL, GILSTRAP, and MOSES

But four members dissented, and would have disclosed the name of the "subject judge"

Pursuant to Rule 24(a)(2) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, it is ordered that the name of the subject judge not be disclosed. Circuit Judges Jennifer W. Elrod, Gregg J. Costa and James C. Ho and District Judge Carlton W. Reeves would publicly disclose the name of the Judge who is the subject of the complaint.

Good for Judges Elrod, Costa, Ho, and Reeves. And for those keeping score at home, these judges are on very different positions along the ideological spectrum, yet they all agree on this important ethical issue: people who misbehave should receive public scrutiny.

Other judges on the Council, who I know and respect, were silent. Why?

While I'm at it, let me raise another issue. It is unclear when the original complaint was filed. But this case stretched at least 2.5 years. A footnote lays out this timeline:

The judges named in the caption were members of the Judicial Council when this matter was considered and approved by the Council in November 2021, and they concurred in the decision. Judge Costa resigned from the Court effective August 31, 2022. The Judicial Council terms of Judges Willett, Ho, Duncan, Foote, and Rosenthal expired December 31, 2021.

It took nearly three years to settle this matter. In the interim, Judge Costa had resigned from the court, and other members were no longer participating on the Council. I favor a legislative reform to put a clock on settling these matters. The public needs to know about misconduct in a timely fashion.

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Today in Supreme Court History: May 30, 1865

2026-05-30T11:29:14.198-04:00

By Josh Blackman - May 30, 2026 at 07:00AM

5/30/1865: Justice John Catron dies.

Justice John Catron

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Open Thread

2026-05-30T05:29:36.385-04:00

By Eugene Volokh - May 30, 2026 at 03:00AM

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