There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past—like precedent—will constrain it. And that the decisions of the preceding terms—overturning Roe v. Wade, expanding the “right to bear arms,” ending affirmative action, among other extraordinary decisions— are just the beginning of a long and cold jurisprudential winter.

Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the “need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.”

This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court’s originalism has become.

“History is a jangle of accidents, blunders, surprises and absurdities, and so is our knowledge of it, but if we are to report it at all we must impose some order upon it.”

Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the effects of New York State Rifle & Pistol Association, Inc. v. Bruen are already being felt. Several courts, including one circuit court, have already struck down a potpourri of federal firearms statutes. This trend may continue to gain momentum, or it may be stopped in its tracks by a new Supreme Court decision that places limits on Bruen. But it is unlikely to fizzle out on its own.

This article seeks to understand these recent events as distinct modern phenomena. To do so, it creates a holistic, conceptual framework that situates the developments of the last thirty years within the broader, global history of the federal government’s approach to firearms crime. The framework organizes the story of federal firearms policy into a series of conceptual narrative clusters—or acts—each with its own characters, conflicts, and shared views about the role of law in society. Through this framework, themes and trajectories emerge, shedding valuable light on our understanding not only of where we are and where we have been, but also of where we are going in our federal approach to firearms crime. As the first article that paints a comprehensive picture of federal firearms policy in this way, and as one of the first to address the emerging post-Bruen legislation, it will also add structure, focus, and energy to important ongoing scholarly discussions.

In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens’ lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives—e.g., via detention, cross-border shootings, and deportation— explorations have yet to consider the system as a whole from this perspective.

My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking immigrants’ lives. They do so in part by normalizing death as the inevitable cost of upholding the rule of law. And yet, there is nothing normal or inevitable about the myriad policy choices, statutory provisions, and evacuations of constitutional protection that undergird immigration law and enforcement. These choices form an architecture that, in the words of Achille Mbembe, “subjugate(s) life to the power of death.”1 I consider death by design, death by enforcement, death by denial, and death by expulsion—then show how jurisprudence and laws accept and contribute to these deaths. In the final sections of my paper, I consider how we might dismantle the assumptions, laws, doctrines that devalue and take noncitizen life throughout our immigration system.

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.

History reveals that Pennsylvanians had a distinct, original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited the addition of any severity contemporary science deemed unnecessary for those ends. The historical record should thus provide, not prevent, a distinctly Pennsylvanian definition of cruelty.

This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Supreme Court of Pennsylvania interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments.

Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history supplies.

Imagine receiving a letter in the mail from a credit card company, notifying you of your “pre-approved” status. Relief after being exempted from the complicated screening process, happiness at the prospect of an elevated credit score, elation at receiving a shiny new card in the mail. These are all common feelings when receiving an enticing credit card offer. How then would it feel if you applied, but were quickly denied? And afterwards, that your credit score plummeted due to the ensuing credit report inquiries? The parade of horribles does not stop there. Not only must you face the embarrassment of rejection and the unwarranted drop in your credit score, but also the reality of your new credit score negatively impacting future applications. This exact chain of events led to the FTC bringing a complaint against Credit Karma in 2022. While Credit Karma eventually paid upwards of $3 billion to affected consumers, many defrauded consumers are not so lucky. The current state of commercial speech regulations can make recovery difficult, if not impossible, because they center on the speaker’s right to freely promulgate ideas. Advertisements qualify as protected speech under the First Amendment so long as they are not blatantly deceptive. Even if a challenge is brought against deceptive advertising schemes, Unfair and Deceptive Practice Statutes (“UDAP”) are unwieldy in practice and can be riddled with loopholes that allow an advertiser to escape liability.