Stephen R. McAllister

Funeral Picketing Laws and Free Speech

This Article addresses funeral picketing legislation enacted by state legislatures and Congress in response to the activities of the Westboro Baptist Church. The article provides an overview of the federal and state laws, and then addresses constitutional questions that these laws raise. The article concludes that some time, place and manner regulations likely will pass constitutional muster, but that measures which fully satisfy outraged lawmakers and the general public may not withstand constitutional scrutiny, while laws that satisfy the First Amendment are unlikely to fully appease the general public. That result, however, is neither new nor unusual, and the Supreme Court generally has been zealous in its protection of the free speech rights of all citizens, reflecting a longstanding and deeply held American commitment to free speech as a cornerstone principle of our society.

Sex Offenders and Mental Illness: A Lesson in Federalism and the Separation of Powers

The Supreme Court’s recent decision in Kansas v. Hendricks provides an exclamation point to the proposition that the Court will defer to reasonable legislative judgments regarding the substance of state civil commitment laws. This article argues that such deference is appropriate as a matter of constitutional law because of important institutional and structural considerations. For mental health professionals interested in influencing the law of civil commitment, the Hendricks decision suggests two propositions: (a) Mental health professionals must offer their expertise and input in the legislative process, and (b) when possible, mental health professionals should identify and explain for the courts any professional consensus on important issues regarding the definition and treatment of mental conditions.

Individual Rights under a System of Dual Sovereignty: The Right to Keep and Bear Arms

This article identifies and explains three fundamental propositions about the relationship between the federal and state constitutions, using examples to illustrate the general propositions. Those propositions are as follows: (1) State constitutional provisions that conflict with federal law are preempted; (2) State constitutions may provide greater protection of individual rights than does the federal constitution; and (3) State constitutions in theory also may provide less protection of individual rights than the federal constitution, but in that event they are rendered ineffective by federal preemption. The article then applies these principles in the context of the right to keep and bear arms, making some observations about the nature and scope of that right under both the U.S. and state constitutions. The article includes an appendix that consists of a table with information about all of the state constitutions that include a provision regarding the right to keep and bear arms.