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Binding States to the Second Amendment: Thanks to Doug Berman for posting a link to Michael Dorf's Findlaw article asking "Does the Second Amendment Bind the States?"  In his post, Dorf discusses the Supreme Court's decision in D.C. v. Heller, and points out Heller's footnoted invitation to gun right advocates to challenge state and local gun control laws, something that advocates have done with the case McDonald v. Chicago.  McDonald asks the Court to determine whether the Second Amendment applies to the states, and according to Dorf, "poses an intellectual challenge for the Justices who were in the Heller majority."  Dorf believes that because the Due Process Clause of the Fourteenth Amendment remains the basis for incorporation of most of the provisions of the Bill of Rights, the self-described textualists in the Heller majority are likely to struggle with the fact that the Constitution "does not mention a right to firearms possession as a limit on the states."  Dorf believes that the way the right will limit states is via substantive due process, or maybe the Privileges and Immunities Clause (if the Slaughterhouse Cases are overruled).  Dorf foresees this as a problem for Supreme Court textualists because it does not easily distinguish between enumerated and unenumerated rights.  Guess we'll know if Dorf's instinct is correct by the end of next June.

No Warrant Necessary for a Cheek Swab of DNA:  Orin Kerr posts on Volokh Conspiracy that an Indiana Court of Appeals has found that a cheek swab is "one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant."  Last week's decision in Garcia-Torres v. State found that because a cheek swab is less invasive than some searches allowed the reasonable suspicion doctrine, and because Supreme Court precedent allows a brief search of a suspect's outer clothing, a cheek swab may be conducted without a warrant.  Kerr is not sure that he agrees with the court's reasoning.  He points out that "the rule allowing pat-downs is an exception to the usual rule to account for the specific interest in officer safety," and that a DNA test is for evidence - not public safety.  He suspects the Supreme Court may someday have to decide this issue.  As far as Kerr knows district and state courts are divided on the issue, but the circuit courts are not split on the issue. 

Quick Thoughts on Graham and Sullivan Today, CrimProf Blog provides a link to Florida State University College of Law Professor Dan Markel's Graham and Sullivan post on PrawfsBlawg.  In his post, Markel "faces off" against a position that he believes Florida's Solicitor General, Scott D. Makar, is likely to take during oral arguments.  Markel believes that Makar is going to have to explain how LWOP for juveniles comports with what he believes is the Supreme Court's rationale in Panetti v. Quarterman - that "punishment... is basically a form of communicative retributivism."  Markel does not believe that LWOP for juveniles is a very good "interlocutor[] of communicative punishment."  Markel develops his theories in his paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment, where he argues "[b]eing a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed."  For this reason he believes that Makar might have a hard time arguing that Panetti does not apply to this case because Panetti dealt with the death penalty, and "death is different."  We'll find out when Makar appears before the Court on November 9th.     

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