The Second Amendment: An Evolving Piece of the Constitution by Chelsea Caveny

The Second Amendment: An Evolving Piece of the Constitution


Chelsea Caveny

As of Friday, October 2nd, there had been 994 mass shootings in America in the last 1,004 days.[1] I am writing this piece on Saturday, October 10th, and I am sure that the number of mass shootings is already higher.[2] By the time this piece is published online, the number will be higher still. In President Obama’s response after the recent shooting at Umpqua Community College in Roseburg, Oregon he referenced the numbness and routine now felt by the American people towards mass shootings.[3]

If we expand the number of gun deaths beyond just the statistics surrounding “mass” shootings, again the numbers become stark and troubling. In the opinion section of the New York Times, Nicolas Kristof wrote that 92 people in America die from gun violence, every single day.[4] When you include gun deaths of all types (suicide, murders and accidents) that number grows to 1.45 million deaths since the 1970s.[5] Kristof uses the 1970s as a point of demarcation for his statistics. Why is that? Kristof doesn’t expand on this in his piece (which largely focuses on ways that guns can be made safer, similar to ways we regulate cars). What Kristof does reference, and a reference that is almost always present when we talk about ways to reduce these staggering numbers, is the NRA.

After every mass shooting, the policy talk inevitably becomes how we address gun control.  On one side, talks of stricter background checks and tracking of guns, on the other side the defense of gun ownership under the 2nd amendment. The debate almost always includes a reference to the power, whether good or bad, of the NRA. In his address after the Oregon shooting, President Obama made a loosely guised reference to the power of the NRA when he encouraged Americans who safely own guns to question whether their interests are being properly represented by a national organization.[6]

In 2012, Jeffrey Toobin wrote an article in the New Yorker that connected the 1970s, the NRA, and our modern interpretation of the 2nd Amendment.[7] Toobin argues that for nearly a hundred years the 2nd Amendment was interpreted narrowly and in line with the original drafting, which gave militias the right to bear arms, not individuals. It wasn’t until 2008 that the Supreme Court espoused what has become our modern understanding of 2nd Amendment protection. According to Toobin, the Supreme Court decision in Heller in 2008 didn’t happen overnight.[8] In 1977, a new group of politically conservative leaders took over the NRA and made the plan for a more active, deliberate organization. Not long after Reagan, a pro-gun rights conservative, took the White House. Orrin Hatch of Utah commissioned a report that painted the long jurisprudential interpretation of the 2nd Amendment as incorrect, and the NRA began producing similar research. Ultimately, as Toobin writes, “an outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.”[9]

The work of the NRA and conservative politicians that started in the 1970s, came to fruition in 2008 with the Supreme Court’s decision in Heller, a decision ruling a DC handgun ban unconstitutional.[10] One of the leading scholars on what the Heller decision represented in a larger context is Reva Siegel at Yale.[11] Siegel writes that the “Court had interpreted the Second Amendment in accordance with the convictions of the twentieth century gun-rights movement and so had demonstrated the ascendancy of the living Constitution.”[12] And there in lies one of the most interesting contradictions in American politics. Justice Scalia, long seen as the archetype and protector of original constitutional interpretation[13], wrote an opinion in Heller that had to re-imagine the constitution in line with more modern gun principals. As Siegel writes, “Heller‘s account of the Second Amendment’s original public meaning invokes authorities from before and after the founding, relies on common law-like reasoning, endows judges with vast amounts of interpretive discretion, and, in these respects, resembles the practice of living constitutionalism that Justice Scalia often condemns.”[14]

When writing about this in 2012, Toobin’s point was that no law is ever settled, not even our understanding of the 2nd Amendment, nor is any interpretation ever done in a vacuum void of modern politics. Yet, our modern policy debates over gun control seem void of any idea that the 2nd Amendment has evolved or could ever evolve even more. The shootings continue to grow, and people continue to die. Yet, gun control efforts have been stagnant. Maybe a place to start the conservation is by challenging the notion of an infallible 2nd amendment?

Yet, maybe it is that very notion that continues to stop the debate from turning into policy changes. The idea that the 2nd Amendment could change yet again is likely a scary thought for conservative gun owners. Whether justified or not, there seems to be a real fear among conservative Americans that the Obama White House is going to go from door to door and collect every firearm, whether legally or illegally owned.[15] In making that point, The Atlantic argued that while supporters of moderate gun control might find that entrenched belief absurd, the belief at least has to be acknowledged before gun control measures can be addressed.[16]

Whatever belief system one might hold, we seem to be reaching a tipping point and for sensible reforms (like gun tracking and safety lock mechanisms suggested by Kristof in the New York Times) to be enacted, it seems that both sides will have to acknowledge that this debate is as much a policy one, as it is a constitutional one.

[1] See 994 Mass Shootings in 1,004 Days: This is What America’s Gun Crisis Looks Like, The Guardian, Oct. 2nd, 2015,, (mass shootings are defined by an event where more than 4 people are shot in a single incident).

[2] See Sarah Kaplan, Four Delta Chi Fraternity Members Shot-One Fatally-At Northern Arizona University, Washington Post, Oct. 9, 2015,

[3] See Gardiner Harris and Michael D. Shear, Obama Condemns ‘Routine’ of Mass Shootings, Says U.S. Has Become Numb, N.Y. Times, Oct. 1, 2015,

[4] Nicholas Kristof, Opinion, A New Way to Tackle Gun Deaths, N.Y. Times, Oct. 3, 2015,

[5] Id.

[6] See Harris, supra.

[7] See Jeffrey Toobin, So You Think You Know the Second Amendment?, The New Yorker, Dec. 17, 2012,

[8] Id.

[9] Id.

[10] See District of Columbia v. Heller, 554 U.S. 570, (2008); Toobin, supra.

[11] See Reva Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[12] Id. at 192.

[13] See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854 (1989); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 38 (Amy Gutmann ed., 1997).

[14] Siegel, supra at 196.

[15] See David Graham, Why Conservatives Mistrust Even Modest Efforts at Gun Control, The Atlantic, Oct. 2, 2015,

[16] Id.

Education or Violence? By Carrington Jackson

Education or Violence?


Carrington Jackson

After remaining relatively dormant since the early 1990’s, coverage of race conflict has regained national attention. In an age where social hashtags stand in place of million man marches, and a Tweet, in place of a boycott—the way society expresses its discontent for injustice has considerably changed.

The ability to shoot-share-and receive media instantaneously is a direct reflection of the hurried lifestyles we live.  The news floods our devices with legal language, and in turn, make standards of proof like probable cause and reasonable suspicion household terms.

While these terms may be more mainstream, their meanings are not so easily understood. The term “probable cause” is a constitutional requirement found in the Fourth Amendment. Probable cause is usually found when there is a rational basis for believing a crime may have been committed.[1] Furthermore, the existence of probable cause depends on the ‘totality of the circumstances’ of the arrest.[2] The ‘totality of the circumstances’ considers the arresting officers knowledge or reasonable belief regarding the suspect at the time of the arrest.[3]  Because probable cause does not have a formal definition, courts typically choose the broader and more flexible view of the term.[4]

Similarly, under the penumbra of probable cause, the definition of the term “reasonable suspicion” is just as indeterminable. Essentially, reasonable suspicion requires that an officer have sufficient knowledge or belief that there is ongoing criminal activity.[5] Since it is a lesser standard than probable cause, police officers are given the discretion to make situational assessments, and hopefully, rational inferences from the facts before them.[6]

Without a concrete method set to evaluate the “probable cause” or “reasonable suspiciousness” of all suspects, these imprecise standards are left for officers to interpret—placing police officers at the center of balance between society and the law. Like surgeons, police officers are sometimes burdened with making the choice between life and death. In a majority of cases, the right decision is made. However, as recent headlines demonstrate, wrong decisions that are specifically related to race issues are becoming far too commonplace.

Evidence of police officers’ questionable decisions are chronicled by landmark hashtags like, #ICantBreathe and #HandsUpDontShoot. In a Brooklyn Magazine article written recently after Eric Garner’s death, Phillip Pantuso contends that Daniel Pantaleo [the officer that choked and ultimately killed Eric Garner] “did the wrong thing, but at every step of the way, his actions were rational in context . . .[and] it’s the context that needs changing.[7]” That “context,” I contend, is the crossroad where the imprecise standards of probable cause, and the education requirements of police officers meet.

Through their work, police officers encounter a broad swath of people—from bankers, to suburban housewives, to criminals and troublemakers, all of whom come from very diverse backgrounds. That diversity is especially apparent in communication. By the same token, it is inevitable that during those encounters, confrontation will arise because of miscommunication. However, there seems to be an upward trend in this level of disconnect—more specifically, situations involving Blacks and Whites.

Higher education serves as the bridge—promoting social tolerance by exposing individuals to our world and the people we share it with. Following urban unrest in the 1960s, there was a move toward requiring college degrees for police officers.[8] Unfortunately, that movement never gained serious traction.[9] Because the public eye is often drawn to the dramatics found in the dynamic between white officers and black suspects, we tend to apply a stricter public scrutiny to the outcome of these cases. While dogged racial tensions may be an important factor in the overall discussion, the misinterpretation of legal standards by our police, caused by the even lower educational threshold for their hiring, is equally disturbing.

A 2003 study by the Bureau of Justice Statistics found that 83 percent of all U.S. police agencies only require a high school diploma; eight percent require some college; and only one percent requires a four-year college degree.[10]

Ultimately, even if the terms probable cause and reasonable suspicion are given more precise definitions, the standard’s application would still be left up to an officer’s discretion. For example, amidst a tense emotional situation like an arrest, an officer is forced to analyze the situation instantaneously.  And, like most professions that requires increased stress or specialized knowledge (e.g., pharmacist, doctors, attorneys, etc.), there is a requirement of some form of higher education.

The ability to connect, and at the very least, to understand individuals and their beliefs, is fundamental in today’s society. In 1994, the Commission on Accreditation for Law Enforcement Agencies, Inc., found that, “[o]fficers who have received a broad general education have a better opportunity to gain a more thorough understanding of society, to communicate more effectively with citizens, and to engage in the exploration of new ideas and concepts.”[11]

These findings were further substantiated in a 2010 Police Quarterly study uncovering those officers with some college education or a four-year degree decided to use almost 15 percent less than an officer with a high school-education.[12]  The study used a definition of “force” that covered conflict from verbally threatening suspects to pointing or firing a gun.[13]

Similarly, William Terrill, a criminal justice professor at Michigan State University, found that “since force is a more discretionary and individual decision, there is a greater opportunity for biases to surface.[14]” This often means asking an officer who may have some preexisting prejudices—or even worse, negative or previous dealings with a member of another race/ethnic background—to fairly analyze and diffuse hostile encounters.

Further, Terrill held that officers without a college education are more likely to think that they are the law with the power to enforce their will.[15] Though this may not be true of all officers, evidence clearly suggests that the presence or absence of higher education directly influences an officer’s choice to use force.[16]

Logically, if public officers are required to obtain a degree in higher education then they should receive a pay increase. Better compensation, in turn, would lead to higher taxes; and many individuals view higher taxes as a burden on society. However, as a society shouldn’t we invest in police officers, given all the good they do to protect and serve? Paying for educated police officers should be a top priority. Don’t #[All]lives matter?

Ultimately, until there is a revived discussion about better ways to educate our police, and until these officers are better equipped with an understanding of the legal standards that they apply, police violence will surely continue.

[1] Illinois v. Gates, 462 U.S. 213, 232 (1983).

[2] Id.

[3] United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).

[4] Gates at 232 (1983).

[5] Terry v. Ohio, 392 U.S. 1, 27 (1968).

[6] Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

[7]  Phillip Pantuso, Daniel Pantaleo: Basically An Average Cop

[8] John L. Hudgins, Require college degrees for police, The Baltimore Sun, September 30, 2014 at Commentary

[9] Id.

[10] Jeffrey L. Sedgwick, U.S. Department of Justice, 2003 Bureau of Justice Statistics on Law Enforcement Management and Administrative Statistics, found online at

[11] Commission on Accreditation for Law Enforcement Agencies Standards manual 1994,

[12] Jason Rydberg & William Terrill, The Effect of Higher Education on Police Behavior, Police Quarterly 2010 13: 92, originally published online 3 January 2010. The online version of this article can be found a

[13] Id.

[14] Id.

[15] Id.

[16] Id.

Spree Violence and Mental Health: the Tension between Civil Liberties and Public Safety By Anna Critz

Spree Violence and Mental Health: the Tension between Civil Liberties and Public Safety

By Anna Critz

“We have a federal system more interested in protecting people’s rights to be sick than their rights to be well.” –Congressman Tim Murphy, October 2, 2015 to CNN New Day[1]

On October 1, 2015, Christopher Harper-Mercer, a twenty-six year old student, went to the quiet Umpqua Community College campus in Roseburg, Oregon, with body armor, ammunition, and six guns.[2]  In an act of spree violence, he murdered nine people and left nine others injured before ending his life.[3]  Some sources have reported that Harper-Mercer may have had mental health issues.[4]  This hindsight dissection of a spree killer’s mental health is an all too familiar narrative after tragedies like this occur.  Jared Lee Loughner, the Tuscon shooter who killed six people and wounded many others including former Congresswoman Gabby Giffords, exhibited signs of mental illness in the classroom long before he committed his spree killing.[5]  Elliot Rodger, the Isla Vista shooter whose rampage was partially fueled by his hatred of women, received years of mental health treatment as an adolescent and refused the anti-psychotic prescribed him as an adult.[6]  In the month before his attack, his mother had called the authorities, concerned after viewing one of his online video rants.[7]

When senseless violence like this happens, people often wonder what, if any, preventative measures could have been taken.  Many attribute the root of the problem to the accessibility and prevalence of guns in America.[8]  Others, including gun rights advocates, prefer to reframe the issue as a solely mental health issue.[9]  But if there is a mental health issue at play here: why is it an issue? And can mental health reform potentially prevent future acts of spree violence?

The issue is from the tension between a mentally ill person’s civil rights under the Due Process Clause and the public’s right to be safe from people sincerely desiring to commit acts of violence.  The Due Process Clause bars the government from taking or restraining one’s life, liberty, or property without due process of law.[10]  In the mental health context, the Due Process Clause prevents a person from being committed involuntarily (be it through in-patient or out-patient mental health treatment) without a showing that the person is mentally ill and a danger to herself or others.[11]  Many state statutes have refined this to require that the mentally ill person be an “imminent danger.”[12]  Further, the Supreme Court requires the government prove dangerousness by clear and convincing evidence for civil commitment to satisfy the requirements of due process.[13]

Under this framework, it is extremely difficult to commit a person involuntarily.  Elliot Rodger had only to assure the police officers responding to his mother’s concerns that he was well and not suicidal to withstand commitment.[14]  In Rodger’s own manifesto, he described how the officers could have averted his murderous plans entirely if they had extended their visit to his room and found his guns and writings.[15]

Perhaps then, a plan that more closely examines the requirements of involuntary commitment and lowers them in particular cases is key to mental health reform. Congressman Tim Murphy of Pennsylvania seems to thinks so.  Congressman Murphy has sponsored H.R. 2646, the Helping Families in Mental Health Crisis Act, an expansive piece of mental health reform legislation.[16]  Crucially, the bill would, if passed, hinge some federal health funding to states on the states’ compliance with changes to commitment standards.[17]  To receive the extra funding, states must have statutes authorizing court-ordered out-patient mental health treatment on their books.[18]  Furthermore, only states that adopt a looser “need for treatment” standard of involuntary commitment (rather than “imminent danger”) would be eligible to receive the health funding.[19]  The “need for treatment” standard, according to the bill, would affect a mentally ill person who “is a danger to self, is a danger to others, is persistently or acutely disabled, or is gravely disabled and in need of treatment, and is either unwilling or unable to accept voluntary treatment.”[20]

Adopting mandatory out-patient programs and a lower standard for involuntary commitment could quite possibly catch a mentally ill person plotting spree violence before the event occurs.  Had this law been in place at the time, it might have been used to force Rodger to undergo treatment and take his anti-psychotic as prescribed. However, the questions of whether lowering the commitment bar would survive Due Process scrutiny and whether the American people would approve of the new restraint on their civil liberties remain open.

[1] See Murphy on CNN: Families ‘Need Action Now’ on H.R. 2646, Homepage for Congressman Tim Murphy (Oct. 2, 2015),

[2] Oregon Shooting: Medical Examiner Rules Gunman Killed Self, Sheriff Says, (Oct. 4, 2015, 10:17 AM),

[3] See Oregon Shooting: Gunman was Student in Class Where He Killed 9, (Oct. 2, 2015, 10:40 PM),; Oregon Shooting: Medical Examiner Rules Gunman Killed Self, Sheriff Says, (Oct. 4, 2015, 10:17 AM),

[4] See e.g., Nancy Dillon, ‘I’ll be Joining You Soon,’: Oregon College Shooter Planned Suicide After Gunning Down Students and Instructor, Survivor Says, New York Daily News (Oct. 3, 2015, 11:20 PM),; Jack Healy & Ian Lovett, Oregon Killer Described as Man of Few Words, Except on Topic of Guns, N.Y. Times (Oct. 2, 2015),

[5] Kate Pickert & John Cloud, If You Think Someone is Mentally Ill: Loughner’s Six Warning Signs, TIME (Jan. 11, 2011),,8599,2041733-1,00.html.

[6] See Elliot Rodger’s Family Tried to Intervene at Time of Rampage, CBSNEWS (May 26, 2014),

[7] Id.

[8] Adam Edelman, Mark Kelly, Donald Trump Weigh in on Gun Control Debate Following Oregon Shooting, New York Daily News (Oct. 4, 2015, 1:55 PM),

[9] Id.

[10] U.S. Const. amend. XIV, § 2.

[11] See Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

[12] See e.g., Ark. Code Ann. § 20-47-210; Haw. Rev. Stat. § 334-60.2; Colo. Rev. Stat. Ann. § 27-65-105; Mont. Code Ann. § 53-21-129.

[13] Addington v. Texas, 441 U.S. 418 (1979).

[14] Holly Yan, Steve Almasy, & Sara Sidner, California Mass Killer Thought Plan was over During Visit by Deputies, (May 27, 2014, 10:30 PM),

[15] Id.

[16] See Murphy’s Mental Health Bill Headlines News in FL, RI, Homepage for Congressman Tim Murphy (Aug. 25, 2015),

[17] Helping Families in Mental Health Crisis Act of 2015, H.R. 2646, 114th Cong., § 206 (2015).

[18] Id.

[19] Detailed Summary of The Helping Families In Mental Health Crisis Act (H.R. 2646), Homepage for Congressman Tim Murphy, 6,

[20] Helping Families in Mental Health Crisis Act of 2015, H.R. 2646, 114th Cong., § 206(f)(1)(A) (2015).

Elderly Inmates: The Forgotten Prisoners by Katie Davis

Elderly Inmates: The Forgotten Prisoners

When defendants are sentenced to life in prison without parole, society seems to forget about them; they just age in prison without any hopes of seeing the world anew. This is especially true for older defendants, whose prison population has increased dramatically[1]. These older prisoners are quickly forgotten as soon as the door to their cell closes behind them. What society fails to see are the problems these prisoners endure in their daily life within the walls of the prison; unfortunately, elderly prisoners face more troubles than their younger counterparts. Even though elderly inmates need more medical treatment and require special care, most of these inmates do not receive special treatment or care from the prison.[2]

When these individuals, sentenced during their older years or sentenced to a life in prison, receive a prison sentence, it is often a death sentence.[3] Although older prisoners only occupy about one percent of the prison population, the imprisonment of these individuals present serious concerns, not only for themselves, but to society at large and to the prison management.[4] The prison death rate of inmates fifty-five years old and older is three times higher than inmates between the ages of forty-five and fifty-four.[5] This high death rate can be largely attributed to their demanding medical needs and lack of necessary care.

One of the biggest problems prisons face in regards to elderly prisoners is their health concerns and the financial cost of caring for them. In 1990, prisons spent an average of $18,600 a year for caring for an individual prisoner; the cost of care for elderly inmates averaged around $67,000.[6] The medical concerns of elderly inmates are much more severe than for individuals of the same age and are not incarcerated; this can be credited to many limitations inside the prison walls, including poor diet, lack of exercise, and the stress of prison life. [7] Older prisoners have also medical needs that include corrective aids and prosthetic devices.[8] Psychological needs are of common concern, as elder prisoners need help coping with anxiety and their fear of attack from younger prisoners. [9] This creates a large problem for prison budgets as they struggle with determining where to get the money to care for these demanding inmates.

Prices to care for elderly inmates range from sixteen to sixty-one million dollars.[10] Coming from 1986, these numbers are sure to increase. Florida spends three times more money to incarcerate an elderly inmate than it does to incarcerate a younger inmate.[11] This high price of incarceration of elderly inmates is the result of the medical problems that they endure.

Due to their variety of problems, states have developed different methods of dealing with the elderly population in state prisons.[12] As long as the inmate’s security classification allows, inmates over fifty years old are housed in geriatric units in Mississippi.[13] The elderly prisoners in Mississippi will get the one-on-one medical attention that many of their counterparts, who are not in prison, receive. This is not always a viable option, however. States that cannot afford to build geriatric units have to find other creative ways to provide the necessary care for these prisoners.

Some states offer compassionate release to elderly inmates. Compassionate release is an early release program for inmates that have serious medical conditions or those who have reached an advanced age.[14]  If allowed, this is one of better methods of helping the elder inmates because those that are not a safety concern to their community can leave the prison to spend their last few months with their families. When the nature of the crime does not allow compassionate leave for an elderly prisoner, some states have comprehensive facilities to accommodate the elderly inmates.[15] Although a great idea to help provide the appropriate medical care to elderly inmates, it is not always an option in states that do not have the funds to build these facilities. In these states, the elderly prisoners are forced to be in a facility with younger inmates. This opens them up to potential attack from younger inmates and requires them to partake in the activities that healthier inmates engage in; older inmates simply cannot do the same thing as their younger counterparts.

States that do not have or do not allow compassionate release have adopted different means in an effort to protect and care for elderly inmates. South Carolina allows inmates to retire from working in the prisons at age sixty-five.[16] Nine states attempt to alleviate some of the concerns by considering the age of the defendant at sentencing; these states have statutes that allow the defendant’s age to be a mitigating factor in determine the sentence.[17]

Whatever method a state chooses to employ, the health of elderly prisoners and the cost to care for them is a large concern for the states and prisons. Although these inmates may be in prison and barred from causing any more harm to society at large, they are experiencing harm to their health and to the prison’s budget. Legislatures should look to methods other states have used to combat this problem of caring for the elderly when discussing their own reform. No matter what is chosen, the elderly inmate’s health should be of top concern. Although they may be behind bars, the elderly inmate’s medical concerns should continue to be an important topic in the discussion of the prison environment.

[1] Timothy Curtin, The Continuing Problem of America’s Aging Prison Population and the Search for a Cost-Effective and Socially Acceptable Means of Addressing it, 15 Elder L.J. 473, 475 (2007).

[2] Molly F. James, The Sentencing of Elderly Criminals, 29 Am. Crim. L. Rev. 1025, 1027 (1992).

[3] Aging Inmates: Correctional Issues and Initiatives, Maryland Bar Journal, 44-DEC Md. B.J. 22 (2011).

[4] Id.

[5] Id.

[6] Marjorie P. Russell, Too Slow: Compassionate Release of Terminally Ill Prisoners – Is the Cure Worse than the Disease? 3 Widener J.Pub.L. 799, 807 n.25 (1994).

[7] Tina Chiu, It’s About Time: Aging Prisoners, Increasing Costs, and Geriatric Release file=2973/Its-about-time-aging-prisoners-increasing-costs-and-geriatric-release.pdf (last visited September 29, 2015).

[8] Patricia S. Corwin, Senioritis: Why Elderly Federal Inmates Are Literally Dying To Get Out of Prison, 17 J. Contemp. Health L. & Pol’y  687, 697 (2001)

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 698

[13] Id.

[14] Nicole M. Murphy, Dying to be Free: An Analysis of Wisconsin’s Restructured Compassionate Release Statute, 95 Marq. L.Rev. 1679, 1681 (2012).

[15] Corwin, supra note 8, at 699

[16] Corwin, supra note 8, at 698

[17] Corwin, supra note 8, at 699

Paved with Good Intentions: When College “All-Comers” Policies Tread on the First Amendment Rights of Religious Students’ Organizations by Jennifer Huddleston

Paved with Good Intentions: When College “All-Comers” Policies Tread on the First Amendment Rights of  Religious Students’ Organizations

by Jennifer Huddleston

Over 45 years ago, the Supreme Court stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[1] Yet on today’s increasingly college and university campuses, well-meaning administrators can find that their good intentions to promote inclusion and diversity negatively impact  religiously based student organizations and violate students’ constitutional rights to freedom of speech, expression, and association.

Many colleges and universities, in an effort to promote inclusion on campus, have instituted an “all-comers” policies for all officially recognized student organizations which extend beyond normal anti-discrimination policies and require that all organizations and leadership opportunities be open to all students.[2] Typically organizations must be officially recognized to receive funding from student activities or similar fees.[3] Some college and universities have carved out alternative recognition procedures for religious groups.[4] Unfortunately, many colleges and universities do not create such alternatives until religious or values-based organizations object to the violation of their rights or do not create them at all.  For example, InterVarsity Christian Fellowship has been derecognized at more than 23 college and university campuses for their refusal to adhere to an all-comers policy by requiring leaders to adhere to the organization’s statement of faith.[5] When such organizations are derecognized or cannot gain recognition from the college or university due to their beliefs students can become concerned over their ability to express religious based opinions and that the college or university is perpetuating negative stereotypes of those who hold sincere religious beliefs.[6]

The results of legal action by student organizations efforts to restore their religious freedom have been mixed.[7] In 2006, the Seventh Circuit found for the Christian Legal Society at Southern Illinois University when the students challenged the university’s all-comers policy regarding their requirements for leaders and voting members on the grounds that the policy violated their First Amendment freedoms of association, expression, and religion.[8] The Seventh Circuit held that student organizations are protected by the First Amendment’s protection of expressive association from “forced inclusion” by university policies.[9] The Seventh Circuit clearly felt that the student organization’s first amendment claims were in the public interest and the students had the right to freedom of association and expression of their beliefs through the organization.[10] However, the optimism of this initial victory for students’ First Amendment rights would be short lived.

Despite the Seventh Circuit’s protection of expressive association and religious liberty in Christian Legal Society v. Walker, colleges and universities continued to pass and enforce all-comers policies that did not contain exceptions to protect religious organizations. In 2010, the Supreme Court held in Christian Legal Society of the Univ. of Cal. v. Martinez that university all comers policies did not violate a religious student organization’s rights to freedom of religion, association, or speech.[11] The Court held that the University had an interest in promoting diversity and inclusion in its student organizations through its administrative policies and because of the nature of the resources still available to the Christian Legal Society without being a recognized student organization, the students’ First Amendment rights were not violated by the university policy.[12] Justice Alito noted in his dissenting opinion his concern that if this jurisprudence continues, “the First Amendment rights of students at public universities will be at the mercy of the administrators.”[13] As colleges and universities have continued to pass and strictly enforce such “all-comers” policies, it appears the dissent’s concern has been proven correct.

In the wake of Christian Legal Society of the Univ. of Cal. v. Martinez, some state legislatures intervened to protect students First Amendment freedoms where the Court had failed to do so by passing legislation prohibiting colleges and universities from denying recognition to student religious or political organizations on the basis of their requiring leaders to adhere to specific values or beliefs.[14] Unfortunately such remedies are typically reactive occurring only after religious students’ First Amendment rights have been violated my overzealous administrators and students have been forced to choose between recognition by the school or their values and beliefs. Additionally, relying on state legislatures is an insufficient alternative to insure student organization’s rights since it protects only the students at universities in that state. Even when the members of the state legislature are sympathetic to students such legislation is likely to be pushed aside for issues that are perceived as more pressing or may end up being vetoed by the governor. For example a new strict enforcement of an “all-comers policy” for student organizations at Vanderbilt University in 2012, forced a coalition of 11 Christian student groups off-campus after the University refused to approve their club constitutions unless they removed moral requirements for leadership positions.[15] Students and alumni lobbied the university to provide an exception or alternative route for such organizations, however, the administration refused to consider it.[16] The Tennessee Legislature attempted to remedy the situation by overwhelmingly passing a bill that would require the university to provide an exception that allowed the student organizations to maintain and express their values and beliefs in the selection of their leaders, but the bill was veto by the governor.[17] As the Vanderbilt example illustrates, the legislative process provides an insufficient remedy for the violation of students’ rights by colleges and universities administrative, due to the reactive nature of such action and the real risk that such action may be unsuccessful. Furthermore, it is likely to be more difficult in enforcing such policies to effectively in protect students at private colleges and universities, such as Vanderbilt.

When student viewpoints are stifled, colleges and universities the pluralism and diversity that all-comers policies are designed to encourage.[18] The loss of students’ First Amendment rights by requiring organizations to choose between recognition and their values is an unfair bargain for students at the hands of university administrators despite their good intentions and legitimate goals.

[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[2] “What’s Wrong with an ‘All-Comers’ Policy?,” Christian Legal Society,

[3] See “FIRE’s Guide to Student Fees, Funding, and Legal Equality,”

[4] See Registration Guidelines for Student Organizations at Ohio State, 10-11,, 15 April 2014.

[5] Christopher Shea, “Controversy Heats Up over Religious Groups on Campus,” Chronicle of Higher Education (6 October 2014),

[6] Shea, supra note 5.

[7] Shea, supra note 5.

[8] Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).

[9] Id. at 861.

[10] Id.

[11]561 U.S. 661 (2010).

[12] Id.

[13] Id. at 718.

[14] Harry Painter, “The Supreme Court endangered student groups, but some states are coming to the rescue,” The Pope Center for Higher Education (1 October 2014),

[15] “Vanderbilt University: Refusal to Approve Constitutions of Student Groups that Require Leaders to Share Beliefs,” The FIRE,

[16] Pierce Greenberg, “Students, alumni, state legislators press VU on ‘all-comers’ policy,” City Paper (18 April 2012),

[17] Lucas L. Johnson II, “Haslam vetoes college discrimination policy bill,” The Oakridger (2 May 2012),

[18] Karen Swallow Prior, “What’s Lost in Not Recognizing Campus Religious Groups,” The Atlantic (21 Sept. 2014),

A Muslim President?: How to Navigate Ben Carson’s New Presidential Requirement By: Catie Malone

A Muslim President?: How to Navigate Ben Carson’s New Presidential Requirement

By: Catie Malone

Comments from GOP Presidential candidates have made headlines, shaped the debates, and continue to guide the current Presidential campaign season. Most recently, GOP candidate Dr. Ben Carson stated that he would not support a Muslim person’s bid for president, citing the inconsistency between the faith and the United States Constitution.[1] He reinforced his stance saying that if a candidate’s faith was in tension with American values and the Constitution, his faith was a matter of consequence.[2] While his campaign stresses that his opinions do not propose any policy nor authorize any rule of law prohibiting Islamic faithful from running for office, it is significant that a person running for President of this country would view an otherwise qualified person’s religious beliefs as a disqualifying factor.

But, this is not the first time a candidate’s religious beliefs are at issue as Democratic Presidential candidate Bernie Sander reminds us of the stigma associated with electing the first Catholic or black President.[3] Over fifty years ago, voters, candidates, and politicians doubted the ability of a Catholic presidential candidate to be uninfluenced by the church, the Vatican, and the Pope. Then, anti-Catholic sentiments were not only more widespread, but more “vocal and socially acceptable,”[4] and the Catholic Church was seen as a “foreign body” inside this country and its members were subject to the “sway of an organization that is alien in spirit and control.”[5]

More recently, former Massachusetts governor Mitt Romney addressed concerns that his Mormonism raised questions about his independence from the guidance and leadership of the church. In 2006, Romney, like Kennedy before him, claimed to be an “American running for President,” assuring voters that whatever authority his church leaders had was limited to the affairs of the church, and did not extend to any political, or he hoped, Presidential decisions.[6] Although article VI of the Constitution prohibits the use of any religious test “as a qualification for any office or public trust,”[7] those candidates who fall outside of mainline Protestant denominations must prove themselves loyal to the Constitution above their faith.

Kennedy and Romney’s attempts at reassuring voters that a candidate whose religion created a question of loyalty to American values would place the Constitution and the needs of the nation first seem to be sufficient to comfort the doubtful. However, Carson, and those who agree with him, would require a Muslim candidate reject and renounce a part of their faith and their religious text to be a suitable candidate. To be fit to serve, Carson says, Muslims would need to “reject sharia and all the portions of it that are talked about in the Quran.”[8] For him, sharia’s lack of protections for the rights of women, of LGBT people, Islam’s “subjugat[ion] of other religion, and its advocacy for “a host of things that are not compatible with our constitution” make it an unfit and unconstitutional foundation for American law.[9]

However, the American Bar Association believes the “safeguards… already enshrines in federal and state law” sufficient to prevent reliance and application of “Sharia or other rules… that are contrary to our public policy… including, for instance, rules that are incompatible with our notions of gender equality.”[10] Public policy controls choice-of-law principles and will prevent courts from interpreting case law, facts, and reasoning in line with any foreign law that would violate this policy.[11] This protection against enforcing and implementing foreign laws, the Bar finds, gives the Judicial branch enough power to check an action by the Executive Branch, should they act on unreliable authority.

Further, the First Amendment’s protection of a person’s right to practice his religion according to his own dictates. Carson’s statements would read this long-standing American principle out of its importance in ensuring that each individual can maintain and practice their faith. Though his campaign website reflects on the importance of our Founding Fathers existence as “courageous men of principle and faith,”[12] it ignores the adamant protection of religious freedom and the separation of church and state. Carson forgets that Thomas Jefferson wrote that “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion… [which shall in] no wise diminish, enlarge, or affect their civil capacities.”[13] He also ignored James Madison’s argument supporting the “fundamental and undeniable truth” that religious beliefs, as well as discharging that belief, can only occur by the choice of the individual and not by coercion, force, or violence.[14]

What makes Carson’s position even more interesting, is where a non-repudiating Muslim is categorically unfit for President, Carson would be open to considering the policies and positions of a Muslim candidate for Congress.[15] Muslim members of Congress would be required to place Islamic principles above other faiths like a Presidential candidate would. The sharia law that applies to the potential Presidential candidate not dictate a Congressperson’s behavior the same. So, why would Carson require a candidate for President to repudiate his faith and sections of the religious text while not questioning or doubting the loyalty to the Constitution of a congressional candidate? Perhaps he sees one or a few Muslims in Congress as less dangerous because of the large numbers of Senators and Representatives of other, more mainline faiths.

This country prides itself on religious freedom while respecting and accommodating the demands of a pluralistic society.  Individuals certainly have the right to make their decisions on who to cast, or not cast, their ballot and the reasons they make that decision are their own. However, for a Presidential candidate to push a position that would blanket all Muslims who would refuse to reject tenants of their faith and holy text as a danger to American rights, freedoms, and values is to reject a major tenant of this nation’s founding.

[1] Ed Demaria, Ben Carson Does Not Believe a Muslim Should be President, Meet The Press, (September 20, 2015),

[2] Hallie Jackson and Phil Helsel, Ben Carson’s Campaign Responds to Outrage Over Comments on Islam, NBC News (September 21, 2015),

[3] Id.

[4] Paul Horwitz, Religion and American Politics: Three Views of the Cathedral, 39 U. Mem. L. Rev. 973, 989 (2009).

[5] Id.

[6] Id. at 1000.

[7] U.S. Const. art. VI.

[8] Eric Bradner, Ben Carson Again Explains Concerns with a Muslim President, CNN Politics (September 27, 2015),

[9] Martin Pengelly, Ben Carson says Muslim presidential candidate would have to ‘subjugate’ beliefs, The Guardian (September 27, 1015),

[10] American Bar Association, ______ 4 (2011).

[11] Id. at 10.

[12] Ben Carson, Keep Faith in Our Society, Ben on the Issues, (last visited September 27, 2015),

[13] Thomas Jefferson,  A Bill for Establishing Religious Freedom (1786).

[14] James Madison, Memorial and Remonstrance Against Religious Assessments (1785).

[15] Martin Pengelly, Ben Carson says no Muslim should ever become US president, The Guardian (September 20, 2015),

The Syrian Refugee Crisis and Islamophobia by Shruti Jaishankar

The Syrian Refugee Crisis and Islamophobia

The Syrian Civil War has raged for approximately four years now, as the conflict arose as a part of the Arab Spring movement that swept the Middle East. While policymakers and pundits alike have ruminated on how best to contain the region, the question of what to do with the millions of displaced Syrian citizens has come secondary.

Until recently. The body of three-year-old Aylan Kurdi, a Syrian refugee fleeing with his family to the Greek island of Kos, provided fodder for a renewed debate on how to protect the innocent. Though the Kurdis had been living in Turkey for three years after they escaped Syria, the family cites Western states’ reluctance to provide safe passage for refugees as part of the reason for the tragedy.[1] Sadly, the Kurdis are not an unusual story; around 2,700 refugees have perished while trying to cross the Mediterranean, and as many as 200 have died in one trip.[2] Approximately 12 million Syrians have been displaced from their homes, creating a crisis as they flood into neighboring countries, Europe, and eventually the Western hemisphere.[3]

European nations are quickly becoming overwhelmed by the influx of refugees, and some have resorted to erecting stringent border controls in response. These border controls and the hostility they represent are problematic, as refugees are entitled to certain basic protections set out in the 1951 Refugee Convention.[4] Under the convention refugees are given the opportunity to apply for political asylum, and may not be sent back to the country that endangered their lives in the first place.[5] As long as a refugee can prove that they are fleeing a hostile or volatile situation, such as a civil war, they must be afforded these basic protections. Border controls and unnecessary bureaucratic structures hinder the spirit of the 1951 convention.

Though many European nations may not have the political or economic infrastructure to support the deluge of refugees, the United States has no such defense. In the four years since the Syrian Civil War broke out, the United States has only accepted about 1,500 Syrian refugees.[6] This is due in part to the additional bureaucratic hurdles that refugees must surmount in order to seek asylum in the United States. Unlike in Europe, the State Department must first vet a select number of refugees before they make seek asylum in the United States.[7] The vetting process is extensive: they must be screened by the National Counter Terrorism Center, the FBI Terrorist Screening Center, and by the Departments of Homeland Security and Defense.[8] Though President Obama has pledged to accept up to 10,000 Syrian refugees in the upcoming fiscal year, that number is not nearly enough and the process will be slow and painful considering the bureaucratic red tape these refugees must first navigate.[9]

The bureaucratic impediments in both Europe and the United States are admittedly due to national security concerns, but are also symptomatic of a larger problem – rampant and unchecked Islamophobia. Before the attacks on the World Trade Center, the United States offered asylum to hundreds of thousands of refugees. During the era of the Vietnam War, the United States took in almost 300,000 refugees over a span of two years from the ravaged area.[10] A few years later, the United States would take in more than 100,000 refugees from Cuba.[11] However, since September 11, 2001, the US has shown a marked reluctance to welcome refugees from the Middle East, reducing the number of immigrants allowed into the country from the hundreds of thousands to about 20,000.[12] The United States sees these refugees as potential terrorists first, and as displaced families fleeing from violence last. The Islamophobia problem has grown so serious in the United States that it has resulted in a 14-year-old-boy being arrested for bringing a homemade clock to school because of its supposed resemblance to a bomb.[13] A leading GOP presidential candidate even declaimed that a Muslim cannot be president of the United States.[14] Ahmed Mohamed and the refugees from Syria share “that menacing brownish color that racists and bigots associate with…. Some country they probably think is called Terroristan.”[15]

Neither the Syrian Refugee Crisis nor the instability in the Middle East have an obvious solution, but the United States and other developed countries can do the most immediate good by relaxing barriers to entry for refugees. Doing so may not curb Islamophobia in the United States, but at least will prevent more senseless deaths like Aylan Kurdis.

[1] Helena Smith, Aylan Kurdi: Friends and Family Fill in Gaps Behind Harrowing Images, The Guardian (Sept. 3, 2015),

[2] Zack Beauchamp, The Syrian Refugee Crisis, Explained in One Map, Vox Magazine, (Sept. 27, 2015),

[3] Id.

[4] Somini Sengupta, Migrant or Refugee? There is a Difference, with Legal Implications, The New York Times (Aug. 27, 2015),

[5] Id.

[6] Gardiner Harris, David Herszenhorn, and David E. Sanger, Obama Increases Number of Syrian Refugees for U.S. Resettlement, The New York Times, (Sept. 10, 2015),

[7] Sengupta supra note 4.

[8] Harris, Herszenhorn, and Sanger supra note 6 at 1.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Haroon Moghul, Stand with Ahmed Against Islamophobia, Cnn, (Sept. 16, 2015),

[14] Nick Gass, Ben Carson: America’s President Can’t Be Muslim, politico (Sept. 20, 2015),

[15] Id.


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