Kansas Journal of Law and Public Policy Seeking Last Minute Submission for Publication in Issue 1

THE PURCELL FICTION: A RULE THAT WAS NEVER A RULE

ABSTRACT

The Purcell principle holds that federal courts should not alter election rules close to an election. This Article shows the premise does not survive scrutiny. Analyzing federal applications from 2006 through 2024, it finds almost no relationship between proximity to an election and whether courts invoke Purcell, a weak claim to genuine precedent, and, per Wittgenstein and Leon Goldstein, a concept too indeterminate to function as a rule. In 2025-2026, the Court invoked Purcell to protect one map, then ignored it months later to let an ongoing election be upended. Purcell is not a rule about time, this Article argues, but a device tracking whichever outcome a court prefers.  

FYI:  The article has big implcations for 2026 elections and beyond.

The second piece:“The Subordination Switch: Antisemitism and the Free Speech Paradox,” for your consideration. The Article argues that the antisubordinationist critique of First Amendment neutrality collapses when tested against antisemitism. Drawing on recent Title VI campus litigation, including a dismissed suit against the School of the Art Institute of Chicago, a pending Supreme Court petition against MIT, and the government's ongoing effort to deport a former Columbia University student, we show that Jews resist the categories on which antisubordination theory depends. Because antisemitic rhetoric increasingly masquerades as anti-oppression speech, an antisubordinationist framework would either shield that rhetoric or demand its suppression. We conclude that viewpoint neutrality, not antisubordination, remains the more analytically defensible constitutional principle.

The Article engages with foundational free speech doctrine, including Brandenburg v. Ohio, the Skokie cases, and R.A.V. v. City of St. Paul, and situates that doctrine within the live, unsettled questions now before the federal courts. We believe it will be of interest to your readers given the timeliness of the underlying litigation and the broader ongoing debate over antisubordination theory in constitutional law.

David A. Schultz is a Distinguished University Professor of Political Science and Legal Studies at Hamline University and a Professor at the University of St. Thomas School of Law. He is a four-time Fulbright Scholar and the author of more than fifty books and two hundred articles. He is a licensed attorney admitted to the bar of the United States Supreme Court, has filed two amicus briefs before the Court on election law issues, and taught election law for nearly thirty years. He serves as the lead Supreme Court analyst for CNN International.

Asher Z. Introlegator is a Juris Doctor Candidate at the University of St. Thomas School of Law, Class of 2027.

Below is a precis for an article that may fit the bill.

Let me know if you would like me to submit.

Thanks,

Andy Pickens

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Why the Supreme Court is Likely to Decide that AR-15 Type Rifles are Protected Under the Second Amendment – And How State and Local Governments May Respond Legislatively

By Andrew L. Pickens*

In June 2026, the Supreme Court granted certiorari in two Second Circuit Court of Appeals decisions consolidated into Grant v. Higgins, and also in a Seventh Circuit decision, Viramontes v. Cook County. At issue in these cases was whether AR-15 rifles, sometimes referred to as “assault rifles,” have Second Amendment protection.

This article predicts the Court will strike down the AR-15 bans at issue.  It also explains why the Supreme Court will likely decide that AR-15s are constitutionally protected, and how state and local governments can respond with constitutionally sound legislation.

In the first part, the article analyzes the Court’s Second Amendment from its 2008 decision in Heller onward. This part serves two functions. It provides a primer for those who don’t yet have a working knowledge of the Court’s 21st century cases interpreting the Second Amendment. Fluency in these decisions will be needed by, e.g., legislative counsel tasked with crafting legislation in the wake of the Court’s decisions in Grant and Viramontes.  This first part also provides details necessary to support the article’s conclusions. Those with policy views favoring gun control are invited to review this portion for flaws in accuracy or logic. 

            The second part of this article summarizes the key principles of the Supreme Courts’ decisions as they apply generally to modern firearms. The third part sets out the reasons why these principles show the Court will likely decide that a law-abiding citizen’s keeping and bearing an AR-15 rifle is protected under the Second Amendment.

The fourth part – given wholly viable restrictions contemplated in the Court’s decisions from Heller onward – describes general categories of regulations on modern firearms, including AR-15 rifles, that courts, including the Supreme Court, are likely to find constitutional.  In addition, this part describes approaches that state and local governments can take to defend restrictions under the Court’s 21st century precedents.

            The article concludes that those concerned with a perceived expansion of gun rights do have regulatory options. Just as the Second Amendment protects types of arms not in existence at the founding, it also permits types of restrictions not in existence in 1791, as well.  The constituent governments of the United States remain the laboratories of democracy noted by Louis Brandeis.[1] Fifty states and many local governments mean that numerous laboratories are available. Though not drawing a detailed roadmap, the Court’s cases offer concrete, useful direction on crafting constitutional restrictions. Once familiar with principles in these cases, governments likely can draft legislation that survives Second Amendment scrutiny and also reduces the potential for violence committed with AR-15 rifles. 

* A.B., Dartmouth College, J.D., UCLA School of Law  

CV showing prior articles attached and available at www.strawnpickens.com;  email: apickens@strawnpickens.com; ph: 713.410.0416