Volume 112 FIRST IMPRESSIONS

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Commentaries

The Tools of Political Dissent: A First Amendment Guide to Gun Registries

Thomas E. Kadri

On December 23, 2012, a newspaper in upstate New York published a provocative map. On it appeared the names and addresses of thousands of gun owners in nearby counties, all precisely pinpointed for the world to browse. The source of this information: publicly available data drawn from the state’s gun registry. Legislators were quick to respond. Within a month, a new law offered gun owners the chance to permanently remove their identities from the registry with a simple call to their county clerk.

The map raised interesting questions about broadcasting personal information, but a more fundamental question remains: Are these gun registries even constitutional? The mass “exposure” of gun owners—used as a form of public shaming—is particularly troubling because it would have been impossible without the government’s registration requirement. The map confirmed a fear held by many opponents of registries: compilation of personal information could lead to reprisals, either by the media or through the state itself. This, they claim, implicates their Second Amendment rights.

In states that insist on registration, opponents have had to mold constitutional arguments to challenge registries in the courts. One such argument grows from the First Amendment. Gun ownership, like speech, is a tool of political dissent. Both guns and speech empower individuals to resist governmental oppression, at least in theory. Yet both become blunt tools if the government imposes registration requirements that numb the right. So, the argument goes, these tools of political dissent must remain unregistered if they are to provide the robust protection against tyranny that the Framers sought.

This Essay argues that the First Amendment can be a powerful analogue in Second Amendment challenges to gun registries. Part I explores the notion of guns as a tool of political dissent through the lens of history. Part II examines three First Amendment cases that could shape the analogue to challenge gun registries. Finally, Part III uses these three decisions to sketch out a blueprint that legislators and litigants can use to analyze gun registries.

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Cultivating Inclusion

Patrick S. Shin & Mitu Gulati
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Aftermarketfailure: Windows XP's End of Support

Andrew Tutt
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Globally Speaking—Honoring the Victims' Stories: Matsuda's Human Rights Praxis

Berta Esperanza Hernández-Truyol
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Toward A Multiple Consciousness of Language: A Tribute to Professor Mari Matsuda

Shannon Gilreath
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Power Games

Aneil Kovvali
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Tribal Disruption and Indian Claims

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo
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Let's Get Married: An Essay in Honor of Mari Matsuda

Richard Delgado
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Introduction by the Editors

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Friendship Treaties ≠ Judgment Treaties

John F. Coyle
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RESPONSES

What Does Social Equality Require of Employers? A Response to Professor Bagenstos

Brishen Rogers

Individual employment law can appear a bit like tort law did in the late nineteenth century: an "eclectic gallery of wrongs" united largely by the fact that they do not fit into another doctrinal category. The field has emerged interstitially and today includes an array of state and federal common law and statutory claims not covered by labor law or employment discrimination law. These other subfieldshave foundational statutes: the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, respectively. Each was passed in response to a major social conflict, and each defines some jurisdictional boundaries. Given its decentralized origins, can individual employment law even have a normative core?

Yes it can, or so argues Professor Samuel Bagenstos. Just as tort theorists have long sought to render the field coherent by mapping principles at work across categories of tort cases, Bagenstos identifies a rough order within this apparent doctrinal mishmash. Individual employment law, he argues, characteristically "seeks to ensure that hierarchies of work do not harden into class-type hierarchies of person" or into more widespread relationships of "domination and subordination." This ideal of "social equality" renders certain doctrines coherent and explains longstanding critiques of other doctrines, and it does so better than theories based on ensuring efficiency or rectifying unequal bargaining power. Bagenstos also roots this argument in first principles of social justice, demonstrating an overlapping consensus among major strands of contemporary political theory to the effect that a just society will eliminate persistent hierarchies of status.

I strongly agree with this argument. I also believe that Bagenstos's article helps answer a vexing question within employment law: When are employer duties justified even if they reduce efficiency and do not target immoral behavior by employers? But I would emphasize different aspects of social equality in certain instances, and I am not optimistic that social egalitarian ideals will strongly influence courts in the run of cases. In this brief Essay, I take up these matters in turn.

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The Rule of Law and the Perils of Precedent

Randy J. Kozel
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Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

Gary Lawson
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Commerce in the Commerce Clause: A Response to Jack Balkin

Robert G. Natelson & David Kopel
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Response to "Snyder v. Lousiana: Continuing the Historical Trend Towards Increased Scrutiny of Peremptory Challenges"

Bidish J. Sarma
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Freedom and Equality on the Installment Plan

Michael Halley
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Insufficient Activity and Tort Liability: A Rejoinder

David Gilo & Ehud Guttel
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Constitutional Interpretation and Judicial Review: A Case of the Tail Wagging the Dog

Michael Halley
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Insufficient Analysis of Insufficient Activity

Kenneth S. Abraham
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Another Theory of Insufficient Activity Levels

Mark Grady
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First Impressions, an online companion to the Michigan Law Review, publishes op-ed length articles by academics, judges, and practitioners in an online symposium format. This extension of our printed pages facilitates quick dissemination of the legal community’s initial impressions of important judicial decisions, legislative developments, and timely legal policy issues.

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