The Yale Law Journal

Joseph Blocher

Article

Originalism-by-Analogy and Second Amendment Adjudication

Joseph Blocher & Eric Ruben

In New York State Rifle & Pistol Assn v. Bruen, the Supreme Court announced a novel historical-analogical approach to constitutional decisionmaking. The Court sought to constrain judicial discretion, but Bruen’s originalism-by-analogy has enabled judicial subjectivity, obfuscation, and unpredictabi…

Article

Navassa: Property, Sovereignty, and the Law of the Territories

Joseph Blocher & Mitu Gulati

The U.S. acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as property, rather than a piece of sovereign territory. The story of Navassa shows how the concept of property is central to the law of the territories—and, perhaps, a useful tool going forward.

Article

Bans

Joseph Blocher

Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade. 

Article

Firearm Localism

Joseph Blocher

This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate longstanding and sensible differences between urban and rural gun use and regulation. Doing so would protect rural gun culture while permitting cities to address urban gun violence.

Forum

Reputation as Property in Virtual Economies

Joseph Blocher

Economists and legal theorists have long argued that real-world economies cannot function effectively without well-defined property rights. More recently, scholars have also begun to analyze at least three kinds of “virtual” economies: the online economies exemplified by eBay and other trade-fac…

Forum

The Guantanamo Three-Step

Joseph Blocher