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Clark Neily



Articles by Clark Neily

The Second Amendment Returns to SCOTUS

7 days ago

Based on today’s argument in New York Rifle & Pistol Association, the unconstitutionality of New York City’s obscure transportation restriction on licensed handguns seems to be a foregone conclusion, with the only real question being how the Supreme Court will respond to the City’s strategic attempt to moot the case by repealing the law before a ruling could be handed down.
On that question, the justices appear divided along predictable ideological lines, with Justices Ginsburg and Sotomayor taking a hard line in their questioning that the case is moot, and Justices Alito and Gorsuch pushing back with equal force for the proposition that the controversy remains live and the city should not be rewarded for its blatant efforts to frustrate Supreme Court review of its now abandoned policy.

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Kamala’s Conundrum

August 2, 2019

During Wednesday night’s Democratic presidential debate, Tulsi Gabbard tore into Kamala Harris for her track record as a prosecutor in San Francisco and later as California’s Attorney General. The attack was sharp and effective, earning Gabbard an outsize share of the post-debate commentary. Its thrust was entirely fair, too, as any number of articles have demonstrated, including Lara Bazelon’s recent takedown in The New York Times titled Kamala Haris Was Not a Progressive Prosecutor.
The real significance of Gabbard’s critique, however, lies not in the proposition that Harris was a particularly unprofessional or malign prosecutor, but rather in the fact that she seems to have been a rather ordinary prosecutor who simply did her job the way most prosecutors do. And if that makes a

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Cato Sues SEC Over Gag Orders

January 9, 2019

Earlier today, Cato sued the Securities and Exchange Commission in federal court challenging the SEC’s policy of imposing perpetual gag orders on settling defendants in civil enforcement actions. The clear point of that policy is to prevent people with the best understanding of how the SEC uses its vast enforcement powers from sharing that knowledge with others. But silencing potential critics is not an appropriate use of government power and, as explained in Cato’s complaint, it plainly violates the First Amendment’s protections of free speech and a free press.
The case began when a well-known law professor introduced us to a former businessman who wanted to publish a memoir he had written about his experience being sued by the SEC and prosecuted by DOJ in connection with a business

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The Trial Penalty

February 9, 2018

Have you ever heard of the “Trial Penalty”? It is among the most important features of America’s criminal justice system, and yet there is no reference to it in the Constitution, it is not taught in high school civics classes or even law schools, and most lawyers have never heard of it. Nevertheless, the Trial Penalty is the grease that keeps the massive engine of American criminal justice humming along at peak efficiency.
So what is it? Simply put, the Trial Penalty is the array of penalties, paybacks, and repercussions that are inflicted upon criminal defendants who presume to insist upon exercising their Sixth Amendment right to a jury trial—or what Cato Research Fellow Trevor Burrus calls “bespoke justice.”
With more than 10 million arrests last year and the world’s highest

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Ending Qualified Immunity for Cops Is a Matter of Life and Death

February 5, 2018

Last week, Bartlesville, Oklahoma, police released video from a nighttime SWAT raid on the home of a man suspected of selling marijuana—yes, marijuana—during which officers fatally shot his mother, 72-year-old Geraldine Townsend, after she fired a BB gun at the officers. As he is being cuffed and dragged from the house, Mike Townsend can be heard pleading with the officers to let him see his dying mother, but they refuse.
In December, Wichita, Kansas, police received what turned out to be a prank call regarding a non-existent hostage situation at the home of Andrew Finch. When the 28-year-old father of two went outside to investigate the flashing emergency lights, SWAT officers yelled at him to “Show your hands” and “Walk this way.” Seconds later, one of the officers shot and killed

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