Thursday, June 28, 2012
Riley on Indians and Guns
My friend and former colleague Angela Riley has an interesting-looking article with the title "Indians and Guns" in the current issue of the Georgetown Law Journal. Here's the abstract:
The Supreme Court’s recent Second Amendment opinions establish a bulwark of individual gun rights against the state. District of Columbia v. Heller confirmed that the Second Amendment guarantees an individual the right to bear arms for self-defense, and the Court applied this analysis to the states via incorporation theory two years later in McDonald v. City of Chicago. As a result of these cases, it is often assumed that individual gun rights now extend across the United States. But this conclusion fails to take account of a critical exception: Indian tribal nations remain the only governments within the United States that can restrict or fully prohibit the right to keep and bear arms, ignoring the Second Amendment altogether. Indian tribes were never formally brought within the U.S. Constitution; accordingly, the Second Amendment does not bind them. In 1968, Congress extended select, tailored provisions of the Bill of Rights to tribal governments through the Indian Civil Rights Act but included no Second Amendment corollary. As a result, there are over 67 million acres of Indian trust land in the United States, comprising conspicuous islands within which individuals’ gun rights are not constitutionally protected as against tribal governments. With Indian nations thus unconstrained—bearing in mind that gun rights and regulations are oftentimes set by tribal law—pressing questions regarding gun ownership and control arise for those living under tribal authority.
Looks like a good subject for a Jotwell piece, if anyone's interested!
This is also a nice place for me to sneak in a personal comment. Angela and I both taught at Southwestern Law School before moving on to greener (in her case) and hotter (in my case) pastures. Its dean, Bryant Garth, recently announced he was stepping down. I was hesitant to write a full post on this, because I very much appreciate the angry commentary that has recently been volleyed against "lower-tier" schools. (I will point out that, whether it still serves its ancient mission or not, Southwestern has been in the "opportunity school" business for a century now; it's not simply some profit-seeking johnny-come-lately.) Having taught there, I do worry about those issues and about the welfare of students graduating from such schools. But I also want to express my personal gratitude to Dean Garth for the many excellent things he did at Southwestern; from the narrow perspective of a faculty member, he was a terrific colleague and is still an intellectual inspiration. I wish him well and thank him for everything he did for me.
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Following up on Paul's comment, the prospects of Southwestern Law grads look bleak indeed. Out of a 2011 graduating class of 298, the ABA puts the nine-months-out number of long-term, full-time bar-required jobs at a mere 103. Moreover, 11 of those 103 are solos, and 51 are in small firms. And the current nondiscounted costs of the place is $258,000!
Paul states that, "from the narrow perspective of a faculty member," Dean Garth was a "terrific colleague" and an "inspiration." However, from the perspective of a Southwestern grad, Garth must appear as a scammer and a life-destroyer.
Posted by: dybb | Jun 28, 2012 10:23:19 AM
I appreciate your comment. All I can say is I genuinely sympathize. I have a review of Brian Tamanaha's book forthcoming in which I offer a few words on Southwestern, and I won't summarize here except to say that I think we must be willing to be critical of our own current or former institutions despite our personal loyalties and relationships. My concern for student outcomes, debts, and tuition costs at SW was what made me hesitate so long to put anything up about Bryant; I wanted to pay tribute to him as a friend and former colleague without getting derailed by angry comments, but at the same time I didn't want to whitewash that anger or the reasons for it. So I'll just say I sympathize, I still want to register my thanks to Bryant on the occasion of his stepping down, and I accept responsibility for any dissonance that results.
Posted by: Paul Horwitz | Jun 28, 2012 10:38:06 AM
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