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Full-Text Articles in Law
The Lawlessness Of Sebelius, Gregory Magarian
The Lawlessness Of Sebelius, Gregory Magarian
Gregory P. Magarian
After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the …
Speaking Truth To Firepower: How The First Amendment Destabilizes The Second, Gregory P. Magarian
Speaking Truth To Firepower: How The First Amendment Destabilizes The Second, Gregory P. Magarian
Gregory P. Magarian
When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s …