UCLA Law Review Vol. 63, Issue 5

Volume 63, Issue 5 (June 2016)

How Governments Pay: Lawsuits, Budgets, and Police Reform Joanna C. Schwartz 1144
Second-Order Participation in Administrative Law Miriam Seifter 1300
The Freedom of Speech and Bad Purposes Eugene Volokh 1366



Evolving Jurisdiction Under the Federal Power Act: Promoting Clean Energy Policy Giovanni S. Saarman González 1422
Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble Samuel S. Sadeghi 1472

Representing the Bill of Rights During the Cold War

Bill_of_Rights_1966_U.S._stamp.1Building on my prior post, I want to highlight this image. It is a stamp that was issued in 1966-67 to mark the 175th anniversary of the ratification of the Bill of Rights. The design was by Herb Block, the longtime political cartoonist for The Washington Post, and was called “Freedom Checking Tyranny.” The mailed fist on the opposite side of the open hand is meant to evoke totalitarianism, which at the time was widely understood as communism.

I also find it amusing that the quote on the stamp is not in the Bill of Rights (and, as far as I know, does not come from any famous speech or Supreme Court opinion).


The Future of the Supreme Court

Every four years the tired claim is trotted out that the winner of the presidential election could appoint three or four Justices. In fact, no President has appointed this many Justices in a single term since Richard Nixon, but this may be the year where hyperbole is true.

We know that there is one vacant seat on the Court, but consider what might happen if Hillary Clinton is elected.  Justices Ginsburg and Breyer would have to doubt seriously that the Democrats would win a fourth consecutive term in the White House, something that last occurred in the 1940s. Thus, they would have a strong incentive to retire in the next few years rather than wait until 2020 or beyond.  That would create a total of three vacancies without including any unexpected change (say, if Justice Kennedy also decides to retire). Of course, Breyer and Ginsburg could decide to go with the example of Justice Stevens and stay until they are 90 years old, but that is unlikely.

Note that if Ginsburg and Breyer retire (say over the next two years), that would make Justice Sotomayor the senior member of the liberal bloc–a rather amazing development for someone who joined the Court only seven years ago.


Tribute to Lenny Bruce on the Occasion of the 50th Anniversary of His Death

This series is dedicated to the memory of John Sisko (1958-2016) —  artist, writer, teacher, gallerist, friend, and free-spirit. Sadly, his artistic tribute to Tom Paine never came to pass. Still, his last words revealed the measure of the man, his revolutionary grain: “I have lived my life creatively and uniquely and on my own terms.” Yes you did, John. 



(credit: NYT)

To commemorate the 50th Anniversary of the death of America’s most uninhibited comedian, I have prepared five posts for the occasion. My interest in Bruce traces back to my book with David Skover, The Trials of Lenny Bruce (2002 & 2012 — 10th anniversary issue / NPR interview), followed by our successful petition to Governor George Patakai to posthumously pardon the comedian.  

Recent & Related 


 “Lenny Bruce – In His Own, Unheard, Words,” BBC, July 30, 2016 (“Fifty years since Lenny Bruce died, Mark Steel explores his legacy in the 21st century, drawing on personal tape recordings from a newly established Lenny Bruce archive at Brandeis University, as well as classic clips from some of his ground-breaking comedy and social commentary routines. With contributions from Lenny’s daughter, Kitty Bruce, and from those who knew and wrote about him, including author Laurence Schiller.”)


Philip Eil, “50 Years After His Death, Lenny Bruce’s Spirit Lives,” The Forward, August 1, 2016


Kelly Carlin, Rain Pryor, and Kitty Bruce Speak Out About Their Fathers and the Fight for Free Speech in Comedy” (FIRE: Video/Podcast) (really a remarkable video)

Kelly Carlin, Rain Pryor, & Kitty Bruce

        Kelly Carlin, Rain Pryor, & Kitty Bruce

Can We Take a Joke? (FIRE documentary featuring Lenny Bruce)

Paul Krassner, Remembering Lenny Bruce, 50 years after his death, Los Angeles Times, July 28, 2016

 Alex Wohl, Standup Philosopher, Brandeis Magazine, Summer (2016)

(Credit: Vice Squad Mag., April, 1963)

(Credit: Vice Squad Mag., April, 1963)


Lenny Bruce – 50 Years Later: Still Funny & “Unsafe”

Warning: The man of whom you are about to read once offended many, and his words continue to do so today.  

Lenny Bruce died for our sins.

FileLenny-bruce-on-stage.jpgOkay, it’s just a joke.

Still, the uninhibited comedian’s legacy did have its redemptive side. After he died, fifty years ago today, no comedian was ever again prosecuted for word crimes uttered in a comedy club. By that cultural measure, Lenny Bruce became the patron saint of standup comedians who freely mock those who trade in hypocrisy.

Before there was Larry David, Penn Jillette, Margaret Cho, Lisa Lampanelli, Chris Rock, or George Carlin, there was Lenny Bruce. He was the quintessential take-no-prisoners comedian. His comedic fare was robust; his style avant-garde; his method crude-blue; and his message upset some and delighted others. Did he shock? – yes. Did he offend? – yes. And was he funny? – yes, outrageously so, at least at his best moments. It’s all in a new documentary titled Can We Take a Joke?

Taboo: That was his off-limits destination. En route he tore into hypocrisy with buzz-saw vigor. No matter the subject – race, religion, politics, or sex – Bruce gave no dime to the Sunday-pious crowd. But when one deals in the forbidden, when one mocks the righteous, and when one does so with razor-cutting humor, there are consequences.

Such as?

Lenny Bruce was prosecuted for obscenity in San Francisco, Los Angeles, Chicago, and New York for his comedy club bits. At great professional and financial cost, he was nonetheless exonerated in all of the cases except the one in New York. By the time the New York club owner (Bruce’s co-defendant) successfully appealed his conviction, Lenny was dead (broke, and with a needle spiked in his arm). He died a convicted comedian – the last one in our history.

(ht: Chuck Harter]

(ht: Chuck Harter]

December 23, 2003. On that day New York Governor George Pataki posthumously pardoned Lenny Bruce. “Freedom of speech,” he declared, “is one of the greatest American liberties, and I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve as we continue to wage the war on terror.”

The people who must never have power are the humorless. — Christopher Hitchins

Have we remembered that “reminder”? Yes, and no.

On the one hand, we now enjoy an almost unprecedented degree of free-speech freedom. It is our American badge of liberty — that willingness to tolerate that with which we disagree. On the other hand, anything deemed offensive is today banned on many college campuses. The trend is to create “safe zones” where students are protected from ideas or words that might upset them.

At Clemson University, unwelcome “verbal . . . conduct of a sexual nature” constitutes “sexual harassment.” This definition includes a vast amount of protected speech such as a joke or comment that any student subjectively finds to be offensive.

At Clark University, its Code of Student Conduct prohibits “telling jokes based on a stereotype.” Of course, that is something Lenny Bruce often did in order to combat the kind of prejudice lurking behind offensive stereotyping.

Grinnell College bans “bias-motivated incidents,” which include “an expression of hostility against a person, group, or property thereof because of such person’s (or group’s) . . . religion . . .” By that measure, Bruce’s irreverent “Religions Incorporated” and “Christ and Moses” routines could be banned at Grinnell.

Florida State University’s “A Summons to Responsible Freedom” defines “Sexual Misconduct” to include “unwanted [or] unwelcome . . . sexual or gender-based . . . comments.” By that punitive gauge there is much in Bruce’s How to Talk Dirty and Influence People (1992, reissued 2016) that would catch the censorial eye.

And then there is the capper: Northeastern University’s acceptable use policy, which prohibits the electronic transmission of any material “which in the sole judgment of the University is offensive.” Lenny Bruce’s prosecutors used much the same subjective yardstick to indict him. If “Saint Lenny” were alive, he would have a devil of a time ripping into campus such speech codes, the ones that cabin the mind in solitary confinement.

When Bruce was posthumously pardoned, the comedian Tom Smothers said: “So many of us today owe so much to Lenny Bruce.” Indeed. Regrettably, it is a debt still owed on far too many campuses across this land. No joke!


Looking Back: Lenny Bruce’s Obscenity Prosecutors & First Amendment Defense Lawyers

Ephraim London

Ephraim London (NY defense lawyer) (credit: Getty Images)

Al Bendich (SF lawyer) (credit: NYT)

Harry Kalven, Jr. (IL appellate counsel)

Harry Kalven, Jr. (Illinois appellate counsel)

Al Bendich (SF defense counsel) (credit: NYT)

The Lenny Bruce story — the one about his obscenity trials (circa 1961-64 in SF, LA, Chicago & NY) — is a remarkable story in the history of the First Amendment as well as in the culture of comedy. You’ll not find the story on the pages of the the United States Supreme Court, though Bruce forever changed the law when it came to uninhibited comedy. You will, however, find traces of that story in the 3,500 pages of trial transcripts titled People v. Bruce (sometime this fall those transcripts will be available in their entirety on FIRE’s online First Amendment Library). There in black-and-white you will find a story about laws invoked in factual situations where it was unclear that any prosecution was warranted.  It is also the story of using the law in ways that at the time were constitutionally suspect. And then there is the human story, the tragic one that first destroyed a man’s career and then destroyed him.

The backdrop of this story is the lawyers who prosecuted and defended the uninhibited comedian. It is said that the dead live on the lips of the living. Mindful of that admonition, below I have listed the names of those lawyers (adapted from my book with David Skover: The Trials of Lenny Bruce). In our judge-centric world, we tend to overlook the lawyers, the ones who are the first to plow the earth of the law. So note their names and roles in People v. Bruce.

The names listed below are those involved in Lenny Bruce’s obscenity trials (as distinguished from, say, his drug arrests and trials).

My experience with Lenny Bruce . . . was the first time I saw in action the government’s use of the might and power of the criminal justice system to crush dissent. William M. Kunstler 

Prosecutors (12)

San Francisco:

  1. Arthur Schaefer (1st Jazz Work Shop obscenity trial)
  2. Albert C. Wallenberg (2nd Jazz Work Shop obscenity trial)

Los Angeles

  1. Johnnie L. Cochran, Jr. (pretrial hearing on motion to dismiss Trolly Ho obscenity case)
  2. Ronald Ross  (consolidated Troubadour & Unicorn obscenity trial)


  1. Samuel V. Banks (Gate of Horn obscenity trial)
  2. Edward J. Egan (Gate of Horn obscenity trial)
  3. Willie Whiting (Gate of Horn obscenity trial)
  4. William J. Martin (appeal of conviction in Gate of Horn obscenity trial)
  5. James R. Thompson (appeal of conviction in Gate of Horn obscenity trial)
Richard Kuh (NY prosecutor) (credit: Getty Images)

Richard Kuh (NY prosecutor) (credit: Getty Images)

New York

  1. Gerald Harris (grand jury & pretrial matters in Cafe Au Go Go obscenity trial)
  2. Richard H. Kuh (Cafe Au Go Go obscenity trial)
  3. Vincent J. Cuccia (procedures for appeal of Cafe Au Go Go conviction)

Prosecutors re Appeal of Companion Case (People v. Solomon)

  1. H. Richard Uviller (post judgment motions before New York Supreme Court, Appellate Term)
  2. Harold R. Shapiro (appeal of Cafe Au Go Go conviction before New York Supreme Court, Appellate Term)

First Amendment Defense Lawyers (23)

San Francisco:

  1. Seymour Fried (1st Jazz Work Shop obscenity trial)
  2. Albert M. Bendich (2nd Jazz Work Shop obscenity trial)

Los Angeles

  1. Melvin Belli  (represented by his associate, Charles Ashman, in Troubadour obscenity case)
  2. Seymour Lazar (pretrial matters in Trolly Ho obscenity case)
  3. Sydney M. Irmas (Trolly Ho obscenity case)
  4. Burton M. Marks (consolidated Troubadour & Unicorn obscenity trial)
  5. John Marshall (Illinois extradition order in Gate of Horn obscenity case)


Maurice Rosenfield (IL appellate counsel w Kalven)

Maurice Rosenfield (IL appellate counsel w Kalven)

  1. George J. Cotsirilos (pretrial matters in Gate of Horn obscenity trial)
  2. Donald Page Moore (pretrial matters in Gate of Horn obscenity trial)
  3. Samuel Friedfeld (Gate of Horn attorney originally retained to represent Bruce & club owner Alan Robback in Gate of Horn obscenity trial)
  4. Earl Warren Zaidans (Gate of Horn obscenity trial)
  5. George C. Pontiffs (sentencing hearing in Gate of Horn obscenity trial)
  6. Harry Kalven, Jr. (appeal of conviction  in Gate of Horn obscenity trial)
  7. William R. Ming, Jr. (appeal of conviction  in Gate of Horn obscenity trial)
  8. Maurice Rosenfield (appeal of conviction  in Gate of Horn obscenity trial)
Martin Garbus (one of NY defense counsel)

Martin Garbus (one of NY defense counsel w London)

New York

  1. Howard Squadron (bail & bond for arrest in pretrial matters in Cafe Au Go Go obscenity trial)
  2. Lawrence H. Rogovin (appears for Howard Squadron in pretrial matters in Cafe Au Go Go obscenity trial)
  3. Ephraim London (lead counsel in Cafe Au Go Go obscenity trial)
  4. Martin Garbus (co-counsel in Cafe Au Go Go obscenity trial)
  5. Harry Herschman (sentencing hearing  in Cafe Au Go Go obscenity trial)
  6. Allen G. Schwartz (certificate of reasonable doubt for appeal in  in Cafe Au Go Go obscenity case)
  7. Edward de Grazia (§1983 civil rights law suit)
  8. William M. Kunstler (advisory capacity in §1983 civil rights law suit)

* * * *

Attorneys on Appeal for Bruce’s Co-defendant, Howard L. Solomon (People v. Solomon)

  1. Bentley Kassal (bail and bond for arrest and pretrial matters in Cafe Au Go Go obscenity trial)
  2. Herbert Monte-Levy (pretrial matters in Cafe Au Go Go obscenity trial)
  3. Allen G. Schwartz (Cafe Au Go Go obscenity trial)
  4. William S. Miller (sentencing hearing in Cafe Au Go Go obscenity trial)
  5. William S. Miller (sentencing hearing in Cafe Au Go Go obscenity trial)
  6. William E. Hellerstein (appeal of Cafe Au Go Go conviction)
  7. Milton Adler (appeal of Cafe Au Go Go conviction)

FullSizeRender (1)

Posthumous Pardon Petition  re People v. Bruce (1964)

  1. Robert Corn-Revere (counsel for Petitioners Ronald Collins & David Skover)
Robert Corn-Revere (posthumous pardon)

Robert Corn-Revere (posthumous pardon)

* * * *  

 No to be overlooked are the nine club owners who were either persecuted or prosecuted in connection with Lenny Bruce’s performances in their clubs. See The Trials of Lenny Bruce, p. 456 (2002).

There is also the story of the judges who presided over Lenny Bruce’s obscenity trials. That is, however, another post for another day.  Besides, there were so many of them. See The Trials of Lenny Bruce, pp. 454-456 (2002).

→ And finally, there is the story of a relentless journalist who played a key role in the Lenny Bruce First Amendment story.  His name: Nat Hentoff.


The Great University Chicago Trio (Kalven, Rosenfield & Ming) & Their Defense of Lenny Bruce


Behold People v. Lenny Bruce.  And note his three lawyers who handled the appeal of his obscenity conviction for his performance at the famed Gate of Horn nightclub in Chicago (December 1962):

Harry Kalven & Maurice Rosenfield

Harry Kalven & Maurice Rosenfield

Professor Kalven, the famed First Amendment scholar, had long been critical of the Court’s ruling in Roth v. United States (1957) and its progeny. He aired those reservations in his seminal 1960 Supreme Court Review article titled “The Metaphysics of the Law of Obscenity.” Thus his interest in People v. Bruce; it presented itself as a test case to reexamine Roth.

William R. Ming, Jr. (credit: U. Chi. archives)

William R. Ming, Jr. (credit: U. Chi. archives)

To help Kalven move from the theoretical to the practical, Kalven collaborated with Maurice Rosenfield and William Ming — two friends, highly reputable lawyers, and colleagues from their University of Chicago Law School days.

Rosenfield, who once co-authored an article with Kalven, was a partner in the law firm of Devoe, Shadur, Mikva, and Plotkin. He had represented Hugh Hefner in the mid-1950s and into the 1960s, and had likewise filed an amicus brief in Roth on behalf of the Authors League of America (Abe Fortas was also on that brief).

Ming was the first African American professor at the University of Chicago Law School. He had been one of Thurgood Marshall’s advisors and worked with Marshall on the Brown v. Board brief (his name was listed between Jack Greenberg and Constance Baker Motley).

There is, to be sure, more to the story, much more.* Suffice it to say that in the end, the trio prevailed when the Illinois Supreme Court ruled in Bruce’s favor.

* See Ronald Collins & David Skover, The Trials of Lenny Bruce (2002), pp. 175-182.

For more on the Chicago connection, see “Laughter & the First Amendment,” Chicago Humanities Festival (Geoffrey Stone, Ron Collins, Judge Diane Wood & Judge William Bauer — introduced by Burt Joseph) (Geof stone was at his comedic best).


We kill comedians don’t we? — The Lenny Bruce Story

We drove him into poverty and bankruptcy and then murdered him. We all knew what we were doing. We used the law to kill him. — Vincent Cuccia (one of Bruce’s NY prosecutors)

He died before his death. It was apparent that Wednesday (February 9) in 1966 when Lenny Bruce spoke at the Associated Students Speakers’ Program at the University of California, Los Angeles (UCLA). He rambled; he misspoke; he struggled; and, yes, he bombed. Pathetic. That’s one word. Sad. That’s another. Predictable. Yet another word.

In less than six months he would be officially dead. Who could not see it coming?

Lenny Bruce, left (credit: Getty Images)

Lenny Bruce, left (credit: Getty Images)

Bruce was broke, bankrupt, out of work, out of luck, friendless, divorced, depressed, and junked up. It was so bad that shortly before he died he tried to hit up his parole officer for $10. Worse still, he was a criminal—a year or so earlier he had been convicted and sentenced in New York for an “obscene” bit he did at the Cafe au Go Go.

They hunted him in San Francisco, Los Angeles, Chicago, and New York. It took its toll: the busts, the prosecutions, the trials, the appeals, and the alienation. And all this for his comedy. He was so taken with his legal plight that he largely abandoned comedy. Besides, by the time he spoke at UCLA no club would hire him. He was a sick and sad comedian, a man waiting to be fitted for a hangman’s noose.

The days of his outrageous humor—“obscene,” “blasphemous,” “sick”—were over. His great comic bits that once pierced the boils of hypocrisy were past tense. He was obsessed with the law; he had a childlike faith in it; and he long thought it would save him. By the time he found himself at UCLA surrounded by students—by that pinpoint in time—he came to a terrifying realization: it was over. Hence, when he spoke of the law, it was like listening to a man with an uncontrollable mental tic—a flick of the head, a fast-and-fleeting flash of an idea, and all capped off with a lunatic’s chuckle.

That day at UCLA much of the laughter was feigned. Or it was an uneasy laughter, an awkward gesture of sympathy. How could it be otherwise? The great Lenny Bruce—the TV and record star, the club star, the well-paid star, and the star of the hip generation—had been reduced to rubble. No wonder he babbled as he tried to speak of free-speech freedom; no surprise that he blathered on as he attempted to discuss the importance of courts and the rule of law; and no wonder it all went south when he sought to make sense of his life at the intersection of despair and destitution.

My point? What people saw that day at UCLA was a Lenny Bruce freak show. But the show, as they say, had to go on . . . and go on it did.

Death changed everything; it would bring Lenny back to life with everlasting applause. It was ironic: death was his best publicity agent. But why?

Because . . .

(Credit: UPI)

(Credit: UPI)

Dead Lenny was no longer a threat to anyone.

Dead Lenny could no longer offend the sensibilities of the righteous.

Dead Lenny was compliant.

That, at least, was the censorial hope. But there was more:

Dead, Lenny the man became Lenny the myth.

Dead, Lenny the uninhibited comedian became a cultural hero.

Dead, Lenny the unruly social commentator became packaged product, and

Dead, Lenny the once bankrupt comic became a cash cow for others

* * * *

It’s true: We feared Lenny alive / yet we love Lenny the dead hero.

Odd the way we turn the First Amendment into a death wish. It is to take a guarantee meant for the living and cram it into a coffin. The result: The censor’s past will likely repeat itself when the next Lenny Bruce comes onto a new life stage.

It is oft repeated: Lenny Bruce is the patron saint of comedians. There is truth there. After all, Lenny Bruce was the last comedian prosecuted and tried for word crimes in a comedy club. He paid the dues, and comedians were the everlasting beneficiaries. Hail Lenny; hail St. Lenny! Okay. But think of it: we canonize a (Jewish) comedian?

“I don’t want to end up like [Lenny Bruce], but I want to be like him.”—Margaret Cho

Which brings me to this question: Why should it be so? Why must we demand dead Lennys? Why not alive Lennys?

Why not celebrate the First Amendment by protecting speech that offends us, repels us, and even unsettles us? Is that asking too much? Perhaps. But that is what the First Amendment asks of us. No joke!


The Bill of Rights and the Cold War

I’ve been hard at work on my Bill of Rights book (three chapters to go), which explains my recent absence here.  I’ll have more posts coming up shortly, but I did want to mention one part of my ongoing research.

The final chapter of the book is about the Bill of Rights and the Cold War. In a symbolic sense, that connection can be seen in the fact that the original Declaration of Independence, Constitution, and an original parchment of the proposal from the First Congress that became our Bill of Rights were all descend each night into a vault that was designed to survive a nuclear bomb. More interesting, though, is that the party platforms that invoked the Bill of Rights after the Second World War almost always did so in the context of fighting communism.  For instance:

The 1956 GOP Platform: “We hold that the major world issue today is whether Government shall be the servant or the master of men. We hold that the Bill of Rights is the sacred foundation of personal liberty. That men are created equal needs no affirmation, but they must have equality of opportunity and protection of their civil rights under the law.”

The 1960 Democratic Platform: “With democratic values threatened today by Communist tyranny, we reaffirm our dedication to the Bill of Rights. Freedom and civil liberties, far from being incompatible with security, are vital to our national strength.”

I’ll have some more on this as the chapter gets written.


The Second Amendment: Constructing Racial and Gender Hierarchy

As posts two and three suggest, social justice feminist (SJF) methods illuminate aspects of the Second Amendment’s history that the Court ignored but are essential to understand fully its social meaning.

At ratification, the right to keep and bear arms helped construct notions of citizenship, race, and gender.  Reconstruction challenged those ideas, but failed to dismantle them in the face of hate group terrorism.  Indeed, hostilities such as the Hamburg Massacre illustrate that the right to keep and bear arms was integral to reinforcing white hegemonic masculinity.

SJF shows that the Second Amendment does more than just support patriarchal norms of defending family, home, and hearth. It is a bulwark for the citizen-self, which has been raced and gendered from the founding.  The right to keep and bear arms has served as both a gatekeeper to and symbol of gaining that status.

What does this mean for today?  In the article upon which these posts are drawn, “Guns, Sex, and Race,” I argue that, by ignoring the racial and gender history of the Second Amendment, the Court protected and reinforced intersecting race- and gender-based oppressions as they relate to gun ownership and use.

Consider Stand Your Ground (SYG) laws.  In 31 states, such statutes allow people to use deadly force for self-defense purposes in home or in public with no duty to retreat.  Many of those jurisdictions provide immunity to persons asserting SYG.  The American Bar Association  reported on significant racial disparities it found in surveying these laws last year:  for example, a white shooter of a black victim is 350 times more likely to found justified than a white shooter of a white victim.  The ABA also reported that similar fact patterns yielded drastically different outcomes.

The cases of George Zimmerman and Marissa Alexander, Florida residents who sought refuge under SYG, are useful examples.  As is well known, Zimmerman shot and killed unarmed teenager Trayvon Martin in February 2102.  Police used their discretion not to arrest Zimmerman at the scene because he claimed he had acted in self-defense.  A jury ultimately acquitted him of second degree murder based on instructions that included SYG language.

The same year, Marissa Alexander, an African American woman, was sentenced to 20 years for firing a warning shot in the air out of fear of imminent abuse from her partner, who walked away unharmed.  The court denied Ms. Alexander’s attempt to assert SYG, which an appeals court affirmed.  As Catherine Carpenter has explained, SYG provides no relief for women such as Ms. Alexander defending themselves against battering cohabitants because both parties have an equal right to be the residence.

Race and gender combined powerfully in these cases.  With respect to Zimmerman’s encounter with Martin, they intersected to construct the teen as being a menace, even though he was armed with nothing more than Skittles and iced tea.  For Alexander’s efforts against an abusive partner, on the other hand, patriarchal norms protected the functional or titular head of the household, even when he was posed a real threat to his cohabitant.

Heller and McDonald suggest that the Court’s vision of Second Amendment promotes autonomy and individual rights.  However, as SJF methods demonstrate, by ignoring essential parts of the provision’s text and history, the Court has merely reinforced race- and gender-based barriers.

SJF reveals that the Second Amendment is an issue of concern for feminist legal scholars and advocates. In our efforts to dismantle the intersecting structural barriers confronting too many in our society, gun regulation should be on the agenda.