HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 43, NUMBER 2 SPRING 2020 THE SECOND AMENDMENT IN THE NEW SUPREME COURT THE FEDERALIST SOCIETY—2019 THE SECOND AMENDMENT AND THE SPIRIT OF THE PEOPLE Renée Lettow Lerner ................................................................ 319 THE RIGHT TO BEAR ARMS: FOR ME, BUT NOT FOR THEE? Stephen P. Halbrook ................................................................ 331 THE SURPRISINGLY STRONG ORIGINALIST CASE FOR PUBLIC CARRY LAWS Jonathan E. Taylor ................................................................... 347 “ASSAULT WEAPON” BANS: UNCONSTITUTIONAL LAWS FOR A MADE-UP CATEGORY OF FIREARMS Mark W. Smith ........................................................................ 357 COMMENTS ON ASSAULT WEAPONS, THE RIGHT TO ARMS, AND THE RIGHT TO LIVE Jonathan E. Lowy ..................................................................... 375 ARTICLES ON THE BASIS OF IDENTITY: REDEFINING “SEX” IN CIVIL RIGHTS LAW AND FAULTY ACCOUNTS OF “DISCRIMINATION” Ryan T. Anderson ................................................................... 387 PROPERTY, PRIVACY, AND JUSTICE GORSUCH’S EXPANSIVE FOURTH AMENDMENT ORIGINALISM Nicholas A. Kahn-Fogel ........................................................... 425 DO PLATFORMS KILL? Michal Lavi .............................................................................. 477 NOTE THE SENATE VS. THE LAW: CHALLENGING QUALIFICATION STATUTES THROUGH SENATE CONFIRMATION Eli Nachmany .......................................................................... 575 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief NICOLE M. BAADE Deputy Editor-in-Chief Articles Chair R.J. MCVEIGH Managing Editors JACOB THACKSTON HUGH DANILACK AARON GYDE Executive Editors Senior Articles Editors OTHON ALVES AARON HSU DAVID BENGER Deputy Managing Editors KEVIN KOLJACK ALEX CAVE MAX BLOOM RYAN MAK DOUGLAS COLBY CHASE BROWNDORF JAMES MCGLONE RICARDO CRUZAT JOHN KETCHAM JOEY MONTGOMERY JOSHUA HA STUART SLAYTON BRIAN KULP Articles Editors WHITNEY LEETS Chief Financial Officer NICK CORDOVA ANNA LUKINA DYLAN SOARES JAMIN DOWDY JOHN MITZEL AARON HENRICKS JASJAAP SIDHU Deputy Chief Financial Officer JASON MUEHLHOFF BRYAN SOHN COOPER GODFREY ALEX RIDDLE DOUG STEPHENS IV OLIVER ROBERTS MATTHEW WEINSTEIN Communications Manager JAY SCHAEFER WENTAO ZHAI JESSICA TONG Notes Editors TRUMAN WHITNEY DAVIS CAMPBELL Events Manager VINCENT WU BRIAN KULP TRUMAN WHITNEY Website Manager Social Chair MARK GILLESPIE JAY SCHAEFER Senior Editors PAYTON ALEXANDER ALEXANDER GUERIN ALEX RIDDLE AARON WARD JOHN BAILEY AARON HENRICKS OLIVER ROBERTS VINCENT WU NICK CORDOVA JOHN MORRISON JAY SCHAEFER WENTAO ZHAI JAMIN DOWDY JASON MUEHLHOFF ISAAC SOMMERS ROBERT FARMER ALEXANDRA MUSHKA JESSICA TONG Editors JOHN ACTON RYAN DUNBAR ELI NACHMANY DUNN WESTHOFF JASON ALTABET WILLIAM FLANAGAN CARSON PARKS ALEX VIVONA MATT BENDISZ CHRISTIAN HECHT HUNTER PEARL JUSTIN YIM AUGUST BRUSCHINI ROSS HILDABRAND BRYAN POELLOT ALAN CHAN ALEXANDER KHAN JACOB RICHARDS JONATHAN DEWITT KEVIN LIE ADAM SHARF Founded by E. 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PREFACE The Second Amendment of the United States Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In this Issue of the Harvard Journal of Law & Public Policy we have the privilege of publishing an Essay in which Professor Renée Lettow Lerner describes this right as most reflecting the spirit of a free people—the spirit of self- reliance and resistance to oppression. The Supreme Court too has recognized the importance of the right to keep and bear arms in District of Columbia v. Heller, holding that the Second Amendment protects the right to possess handguns within the home, and McDonald v. City of Chicago, applying the Second Amendment to the States. The Court however has left many questions open regarding the scope of the right. The Federalist Society hosted an event called “The Second Amendment in the New Supreme Court” in January 2019 to provide guidance on a few of these remaining questions. In addition to Professor Lerner’s Essay based on her keynote address, we have the honor of presenting four Essays from the event in this Issue. In the first two, Dr. Stephen Halbrook and Jonathan Taylor debate the question: “Does the right to bear arms include a right to carry handguns in public?” In the sec- ond two, Mark Smith and Jonathan Lowy debate the question: “Are semiautomatic rifles, aka ‘assault weapons,’ protected by the Second Amendment?” Special thanks are due to the editors from other law schools who volunteered to stay on for another issue to edit these Essays. We could not have published this event without their exceptional work. These Essays are followed by three excellent Articles on cur- rent legal issues. The first Article we present in this Issue, by Ryan T. Anderson, considers the cases Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC currently pending before the Supreme Court. He argues that the Supreme Court should not redefine the word “sex” in Title VII of the Civil Rights Act to extend to discrimination on the basis of sexual orientation and transgender status. Next, Professor Nicholas Kahn-Fogel takes an in-depth look at Justice Gorsuch’s dissent Preface ii in Carpenter v. United States, analyzing his approach to Fourth Amendment searches. He argues that Justice Gorsuch’s tradi- tional property-based approach may ultimately be broad and flexible enough to implicate the same concerns as the Court’s method in Katz v. United States that Justice Gorsuch rejects. Fi- nally, Professor Michal Lavi considers the question of whether online intermediaries should bear liability for use of their plat- forms by terrorists. She argues for criminal and civil law ap- proaches which balance free speech and the harms of terrorist attacks. We are always delighted to publish one of our own. We close this Issue with a Note from Eli Nachmany who argues that laws imposing qualifications on whom the President is able to nominate to executive branch officials violate the Appointments Clause of the Constitution. He cautions against complete disre- gard of such laws, but provides factors the President and Senate should consider in deciding whether to contravene one. I am continually grateful for the hard work and dedication of the Journal editors. This Issue would not have been possible without them. In particular, Deputy Editor-in-Chief R.J. McVeigh rewrote our editing competition and provided wise counsel. Articles Chair Jacob Thackston worked tirelessly man- aging our submissions and article selection process, often on short deadlines. Hugh Danilack coordinated our outside editors on top of doing fantastic editing as a Managing Editor. Aaron Gyde, also a Managing Editor, put in countless hours of excep- tional and thoughtful editing work. Dylan Soares, our Chief Financial Officer, generously undertook the time-consuming work of managing the Journal’s business affairs. Aaron Hsu an- swered all my tricky editing questions and helped out any way he could. And Dallin Earl was always around to listen and provide encouragement. These individuals—and all those who worked on this Issue—exemplify the Journal’s excellence. Nicole M. Baade Editor-in-Chief THE FEDERALIST SOCIETY presents The Second Amendment in the New Supreme Court January 15, 2019 The staff acknowledges the assistance of the following members of the Federalist Society in preparing this event for publication: National Editor Hugh Danilack Harvard Law School Executive Editors Isabel Redleaf Cole Wintheiser University of Pennsylvania University of Pennsylvania Carey Law School Carey Law School Michael R. Wajda Timothy J. Whittle Duke University School of Law University of Virginia School of Law General Editors Jacob M. Abrahamson Stacy Hanson University