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Brenda Brooks, a former school bus driver in Ohio, received the maximum sentence of 18 months in jail and five years of probation after pleading guilty to six counts of child endangerment and one count of driving under the influence. Last fall, Brooks drove an elementary school bus with students on board while impaired. When she left the school, she turned the wrong way, then began swerving across the road and missing stops. One child called her parents for help, and her father had to pull in front of the bus to stop it.

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United States v. DeBorba, decided on June 3, is the latest Ninth Circuit decision that seeks to exclude firearm parts from protection in the reference to the “arms” that the people have a right to keep and bear.  The court held that “‘optional accessories’ to firearms—such as gun slings, scopes, and, importantly, silencers—fall outside of the Second Amendment’s plain text because they are ‘accoutrements’ and not arms.”  The test for whether an object is included in “arms” is supposedly based on whether it “is necessary to the ordinary operation of the weapon.”  “Ordinary” means anything you want it to mean.

That conclusion derives from the Ninth Circuit’s 2025 en banc decision in Duncan v. Becerra, which claimed that a ten (or fewer) round magazine is necessary to operate a semiautomatic firearm and is thus protected, but a magazine that holds over ten is not necessary and therefore has no protection.  For the basis for this illogic, see my post here.

It’s no surprise that the DeBorba court applied that “test” to the much-derided suppressors, but gun slings and scopes?  Perhaps the court is laying the groundwork for the California legislature to ban “assault slings” and “assassin scopes.”  After all, slings may be used in the standing (off-hand) position to shoot more accurately, as they often are at shooting matches.  But that could make spray firing more accurate as well.  And despite their use in hunting, scopes are inherently “military-style” as depicted in the movie American Sniper, making them adaptable to political assassinations.

Absurdities aside, slings and scopes should be considered within the term “arms” as they are very much part of the arms on which they are used.  Bruen held that the “general definition [of ‘arms’] covers modern instruments that facilitate armed self-defense.”  The Court said “facilitate,” not just barely essential for a shot to go off.  That necessarily includes instruments equipped with various features, whether characterized as so-called “accoutrements” or not, that enhance or otherwise affect the functionality of a firearm.

Under the Militia Act of May 8, 1792, a citizen was required to “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges.”  Reference was made to “the arms, ammunition and accoutrements, required as aforesaid.”  Taken together, these items constituted “arms.”  A musket would not fire without a flint, even though Duncan listed flints as accoutrements, not arms.  And ammunition was necessary to fire a shot.  There was nothing about use of the term “accoutrements” that excluded items from Second Amendment protection.

That brings us to the facts in DeBorba, which involved an unregistered suppressor.  It is noteworthy that the Gun Control Act itself defines “firearm” to include a “firearm silencer or firearm muffler.”  And in DeBorba, “When the ATF attached DeBorba’s device to a portable firearm and fired the gun, the device ‘reduced sound reporting by at least twelve decibels.'”  That certainly made it, to use Bruen‘s terms, an instrument that could “facilitate” armed self-defense.

The Ninth Circuit’s test is that anything that the legislature may ban that is not absolutely necessary for a gun to go bang is a mere accessory excluded from the term “arms.”  If that includes a scope, it also includes just regular sights.  Indeed, that’s been the antigun argument all along, that features (like a pistol grip or adjustable stock) that make a firearm more accurate and comfortable to fire make it “unusually dangerous” and thus subject to prohibition.  Under that logic, a firearm could be stripped of every feature other than the barrel and firing mechanism, and since it would still go bang, that’s all that is protected by the Second Amendment.

Even if suppressors have Second Amendment protection, DeBorba continues, footnote 9 in Bruen creates a presumption of constitutionality for permitting processes that “do not require applicants to show an atypical need for armed self-defense” and for which “‘narrow, objective, and definite standards’ guid[e] licensing officials.”  The NFA is a “shall-issue” scheme under which one need only file a written application with fingerprints and photograph and await ATF to register the suppressor.

But that overlooks that footnote 9 concerns permits to carry firearms, not authorization merely to possess a firearm as does the NFA.  Licensing involves checking whether a person is disqualified from possessing arms, while registration involves the government tracking who possesses what guns.  No national consensus has ever existed that mere possession of a firearm warrants permanent registration with the government, including the persons’ fingerprints, photograph, and address.  Carrying firearms in public has always been distinguished by law from possession of firearms in the home.  Whatever the historical justification for the “shall-issue” permitting schemes, no historical analogues exist for NFA-type restrictions as applied to the private keeping of arms.

In Heller II (D.C. Cir. 2011), D.C.’s witnesses admitted that no crimes were ever solved with the District’s registration scheme.  As then-Judge Brett Kavanaugh wrote in his dissent:

D.C.’s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right.

The Ninth Circuit’s devotion to excluding various firearm features from being included in protected “arms” recalls the pre-Heller days when some federal courts were only too happy to exclude actual people from “the people” in the Second Amendment, when it would have sufficed to hold that some people, like violent felons, lose their rights under the Amendment.  João Ricardo DeBorba’s real crimes included repeated violations of restraining orders, being an illegal alien, and lying on firearm forms, all the while being in unlawful possession of firearms based on such status.  Nothing in the court’s coverage of those issues raise any red flags for purposes of the Second Amendment.  Inventing “tests” that infringe on the rights of law-abiding citizens does a disservice to the Constitution.

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Today, the US and Iran announced an agreement to end the war between them. The agreement may also lead to a ceasefire between Israel and Iran and its allies, such as Hezbollah. To put it mildly, this is not the “unconditional surrender” Trump promised us, and that defenders of the legality and wisdom of the war, such as co-blogger Steve Calabresi, expected. Hopes that the war would result in regime change – an objective endorsed by Trump early in the conflict – have evaporated. Indeed, it looks like we haven’t gained much of value than we had before the war, and may even have lost some key ground.

The new agreement (whose terms have not yet been fully released) apparently includes the reopening of the Strait of Hormuz (though which much of the world’s oil supply passes), and an end to the US blockade of Iran. There is also likely to be sanctions relief for Iran, and some kind of Iranian commitment not to pursue nuclear weapons. But, of course, the Strait was open before the War. And Iran has promised to forego nuclear weapons before, including in the Obama-era JCPOA agreement, which Trump repudiated during his first term, because it favored Iran too much. If Iran’s regime could be trusted on these kinds of points, there would have been no need for conflict with them in the first place.

Moreover, international relations scholar-turned conservative political commentator Richard Hanania has explained in an insightful piece, Iran made one important gain in this conflict. They showed they can shut down the Strait of Hormuz, and that the US lacked either the ability or the will to force them to stop. That’s leverage they can use in any future conflict, too, and perhaps to deter the US from taking action against them in the future at all.

In a Dispatch article written soon after the war began and a later post at this site, I explained why the war is illegal, because it lacks constitutionally required congressional authorization, and also violates the 1973 War Powers Act. In the Dispatch article, I also warned that this illegality made it more likely that the war will end in failure:

This [constitutional] limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump’s failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.

This dynamic of weak US will arising from low public support for the war is pretty much exactly what has happened. US and Israeli forces scored some impressive tactical successes. But Trump’s failure to build up political support for the war ensured it was unpopular from the beginning, and got even more so over time. Once Iran closed the Strait of Hormuz and oil prices went up, the war’s popularity fell still further, and Trump began seeking an easy way out.

Had Trump built up sufficient public support to get congressional authorization, the US would have had greater staying power, and would not have caved so easily. Alternatively, if he tried to get that support and failed, we could at least have avoided the war, and all the attendant expense and loss of life.

As noted in the Dispatch article, I am far from a categorical opponent of military intervention, and I would be happy to see regime change in Iran. But, as the saying goes, “war is a contest of wills.” The constitutional requirement of congressional authorization helps ensure we don’t start a major conflict without having a commitment strong enough to prevail. When the president forgets that and ignores the Constitution, he not only acts lawlessly, but also greatly increases the risk of defeat.

The post An Unconstitutional War Results in a Bad Deal appeared first on Reason.com.

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Anyone who went to law school over the past three decades should be familiar with the arguments for and against the use of legislative history. Justice Scalia made it his mission to remind everyone, at every opportunity, why legislative history should not be cited. Justice Scalia would often dissent from any part of an opinion that cited legislative history. To this day, Justices who cite legislative history will say something to the effect of “For those who find legislative history useful,” as if they are ashamed to rely on it. 

Yet, on the present Court, Justice Jackson seems most intent on reinvigorating the reliance on legislative history. The latest skirmish in the textualism battle came in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. The case concerned whether the Court should imply a cause of action under the Investment Company Act. I haven’t studied this statute in any depth, so I’ll pass on the merits. Instead, I want to highlight the duel between Justice Barrett’s majority opinion and Justice Jackson’s dissent. 

Jackson may see herself as keeping Justice Breyer’s mantle alive. But I think her approach goes deeper. She views the rejection of legislative history as a yet another form of “contempt” that the conservative evince towards Congress. KBJ cites Professor Victoria Nourse:

The majority’s failure—or refusal—to accept this might stem from what commentators have called a prevailing “academic contempt for Congress.” V. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L. J. 70, 142 (2012). Academics may think what they wish of Congress; this Court’s jurisprudence ought not be grounded in such contempt.

This model is consistent with Jackson’s broader framing of judicial restraint. Jackson purports to not strike down an act of Congress, or a regulation, unless there is a clear reason to do so. She writes:

[Legislative history] is a worthy and necessary effort because it prevents the preferences of judges from supplanting the will of the people. . . written”). Using legislative history helps prevent judges who are duty bound to interpret Congress’s laws from making them instead. . . . But when a statute’s text needs clarification, discarding legislative history turns the Court’s assessment of Congress’s intent into a transparently empty gesture. Even worse, it inappropriately elevates the Justices’ own power by promoting our views about the “best” policy call.

Jackson is a Thayerian–unless the the First Circuit blocked something Trump did. I’m still disappointed she didn’t write separately in Trump v. Anderson. She was ready to, but just couldn’t pull the trigger.

It makes sense that Chief Justice Roberts assigned this opinion about statutory interpretation to Justice Barrett. The Scalia clerk and former law professor is in her element with these sorts of academic debates. Yet, Justice Jackson made a few points that Justice Barrett did not respond to. I get the sense that Justice Barrett thinks that The Boss won this debate decades ago, so there is little sense in arguing further. But there are some new developments that affect the analysis. Textualists cannot just rest on Justice Scalia’s laurels forever. To borrow a phrase, textualism is not frozen in amber. Or to borrow another phrase, we cannot simply declare victory and move on.  The Court’s conservatives need to address modern criticisms of textualism, lest the other side regains ground.

First, Jackson cites Professors Abbe Gluck and Lisa Bressman, who have done some serious empirical work about how members of Congress view textualism. 

The reports therefore serve as the final sales pitch for a bill, and “there is evidence that lawmakers themselves pay more attention to these reports than a statute’s text to understand the statute’s purpose and meaning.” Learning Resources, Inc., 607 U. S., at ___ (JACKSON, J., concurring in part and concurring in judgment) (slip op., at 2) (citing A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 965–966, 968–969 (2013)); see

I don’t recall that Justice Scalia ever had occasion to address textualism in practice.  Justice Barrett cites Gluck and Bressman for an ancillary point, but ignores the important bottom line of how important legislative history is for members of Congress and staffer. That citation is problematic. This point can’t simply go unaddressed.

Second, the major question doctrine has forced the Court to embark on atextual inquires about legislative intent.

Consistent with the “classic criticism” of courts’ use of legislative history, the majority’s aversion to the employment of this interpretive tool appears to stem from an intuition that “Congress’s subjective intent [is] [un]knowable.” Ante, at 12. But it is hard to take that criticism seriously when the modern Court nonetheless routinely interprets statutes by speculating about what Congress must have wanted.See, e.g., Learning Resources, 607 U. S., at ___ (plurality opinion) (slip op., at 8) (drawing from a “practical understanding of legislative intent” that “Congress would not have delegated highly consequential power through ambiguous language” (internal quotation marks omitted)).[FN9]

[FN9] 9 See also, e.g., Biden v. Nebraska, 600 U. S. 477, 506 (2023) (applying the major questions doctrine to conclude that ” ‘Congress would likely have intended for itself ‘ ” the task of making ” ‘[t]he basic and consequential tradeoffs’ inherent in a mass debt cancellation program” (quoting West Virginia v. EPA, 597 U. S. 697, 730 (2022))); id., at 521 (BARRETT, J., concurring) (relying on the absence of “context clues” to determine whether “Congress would have delegated the power to the agency”); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) (“Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion”).

Justice Scalia saw early shades of “elephants in mouseholes” but he never saw anything like Biden v. Nebraska. Jackson’s point has some merit. I find the debate between Justice Gorsuch and Justice Barrett about the nature of the major question doctrine a bit tiring, but from either angle, the Court is trying to determine whether Congress intended to delegate such a broad power. The answer to that question can’t be found in the text of the statute, because if was in the plain text, there would be no need for the MQD. Justice Jackson argues, not unreasonably, that legislative history might be a useful way to determine whether Congress intended to delegate a power when the text squarely does not answer that question.

I still think all of the cautions about legislative history apply with full force to the Major Questions Doctrine. But this is a point that should be addressed head-on.

Third, the Roberts Courts has rejected implying any new causes of action, even with statutes that likely would have been read to imply a cause of action when adopted decades ago. Justice Barrett addresses this shift:

Private litigants sometimes sue to enforce statutes that lack comparable language. At one point in time, the Court stood ready to let them; it reasoned that courts should “bealert to provide such remedies as are necessary to make effective the congressional purpose” underlying a statute. J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964). But we have since rejected the practice of fashioning rights of action as we see fit. Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 170 (1994); Sandoval, 532 U. S., at 287. Home-grown causes of action are difficult to reconcile with “the Constitution’s separation of legislative and judicial power.” Egbert v. Boule, 596 U. S. 482, 491 (2022) (internal quotation marks omitted). Rather than augmenting statutes, we interpret them. If a statute does not spell out a right of action, we examine the statute’s text and structure to determine whether it implicitly provides one.

How should the present Court deal with legislative history that was written for the Burger Court to read? In the late 1970s, Congress reasonably could have expected the judiciary to rely on their legislative history, but five decades later the judiciary rejects those sources. 

Fourth, Justice Jackson observes that the Court routinely cites “legislative history” for purposes of originalism:

It is, in fact, the majority’s castigation of legislative history as something verging on extralegal (see, e.g., ante, at 14) that is the historical outlier. And that consternation is especially odd coming from a Court that eagerly delves into the transcripts of the ratification debates, the Framers’ private correspondence, and the Federalist Papers to ascertainwhat the Framers would have “understood,” “recognized,” and “expected.”

This is not a new argument, but is worth addressing. One of the primary reasons that Justice Scalia rejected legislative history was the concern that these documents were created with the intent to influence future litigation. That certainly cannot be said for the records of the Constitutional Convention. These proceedings were conducted in absolute secrecy, and the records were not released till decades after ratifications. Members of the convention did not speak with an intent to influence debates. (Of course, I acknowledge the fact that Madison altered his records many years later; these notes should be taken with all due caution.)

The ratification debates were public, though it is highly unlikely that any members of those conventions said what they said to influence judicial decisions. That sort of usage would have been unthinkable in 1788 or 1789. The judiciary simply wasn’t that important.

The Federalist Papers, by contrast, are works of advocacy. Publius was arguing for and against certain positions, and responding directly to charges by the Anti-Federalists. The Federalist Papers are not a form of legislative history, but instead sketch out arguments on both sides of useful debates. We should not presume the Federalists got the argument right. Indeed, the Anti-Federalists often had the better argument. Ultimately, all of these sources are useful indicia of original meaning, though I  know many originalists who refuse to consider these sources at all. They limit their work to the text of the Constitution, unilluminated by subsequent developments.

Finally, I will opine Justice Barrett’s rhetoric. [Trigger warning for anyone who has any connection to Notre Dame, it is probably for your own good to stop reading now.] I sometimes feel that Justice Barrett is more concerned with sharp one-liners than persuasive legal arguments.

Barrett writes, “Put differently: The judicial task is to read words, not minds.” Sounds great, but the entire premise of the major questions doctrine is to look beyond the words to what the legislature intended. Doesn’t the babysitter have to read the mother’s mind?

Here, she is using some sort of religion-ish imagery to pun on Church of the Holy Trinity:

At bottom, the dissent hopes to revive that old-time devotion to legislative history. See, e.g., Church of Holy Trinity v. United States, 143 U. S. 457, 464–465 (1892). Instead of winning converts, however, the dissent illustrates why statutory interpretation must focus on the text—or, to borrow from Justice Robert Jackson, why interpretation must be driven by “analysis of the statute” rather than “psychoanalysis of Congress.” United States v. Public Util. Comm’n of Cal., 345 U. S. 295, 319 (1953) (concurring opinion).

Why use phrases like “old-time devotion” (a play on “Give Me That Old Time Religion“) and “winning converts”? This is a zinger for the sake of zinging–or perhaps singing. Jackson continues the chorus, blaring that Justice Scalia changed the old-time tradition:

Using legislative history as a tool of statutory interpretation is a time-honored tradition. Indeed, the Judiciary’s collective “old-time devotion” to the legislative-history hymnal, ante, at 14, held steady for more than a century—until the late 1980s, when the Court suddenly began to sing a different tune.

Justice Barrett should have cut the purple prose. It wasn’t very clever, and it didn’t make the winning point.

The quotation to Justice Robert H. Jackson is even problematic. This “psychoanalysis” quotation is in every single legislation textbook, and Barrett has no doubt used it many times. But when I read this sentence, I wondered if Justice Kentanji Brown Jackson was going to dunk on Justice Barrett, because RHJ routinely cited legislative history. KBJ did exactly that:

Even Justice Robert Jackson— yes, the very one whose teaching serves as the coda to the majority’s denunciation of legislative history, see ante, at 14—recognized that reliance on legislative history is “justified where the face of the Act is inescapably ambiguous, and then . . . we should not go beyond Committee reports, which presumably are well considered and carefully prepared.” Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 395 (1951) (concurring opinion).

Robert Jackson would have been stunned to see Scalia’s approach to textualism and originalism. Jackson’s functionalist Youngstown concurrence is a repudiation of the sort of formalism Scalia would champinon.

What was the point of citing RHJ if KBJ was going to slam it back in Barrett’s face? Indeed, this was a self-goal. Once Barrett saw the draft dissent, she should have removed this reference. But she left it in. Why? Barrett didn’t care because Justice Scalia won.

I know conservatives like to attack Justice Jackson. I do sometimes. I find her never-ending questions during oral argument to be a nuisance. But at least she is trying. She is doing things. She is trying to make an impact on the jurisprudence. That is far more than I can say for Justice Sotomayor, or even Justice Kagan. When their records are written, what dissents did they write that would influence future generations? Seriously, try to think of a single opinion either has written over the past two decades that is worth studying outside the context of the particular case? They certainly had some trenchant dissents in particular cases, but few had salience beyond that particular moment.

This might be heretical, but I think Justice Jackson sees herself playing the role that Justice Scalia played in the late 1980s. Remember, Scalia arrived at a Court at odds with his philosophy, and through sheer intelligence and force of personality, he was able to move the law. He would dominate oral argument and write lots of solo dissents. I’m sure he would have been more of a nuisance if he was not so darn charming. I don’t think that Justice Jackson has the talents Scalia had (no one else does), but she is working her angles to make an imprint on the law. For that, I give her credit. 

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