Latest Case: Burt v. Speaker of the House of Representatives (Constitutional Law)

Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Burt v. Speaker of the House of Representatives

Docket: 2019-0507

Opinion Date: August 28, 2020

Judge: James P. Bassett

Areas of Law: Constitutional Law, Government & Administrative Law

Appellant John Burt, a member of the New Hampshire House of Representatives, appealed a superior court order that dismissed his complaint against Stephen Shurtleff, in his official capacity as the Speaker of the New Hampshire House of Representatives. In the complaint, appellant, together with co-plaintiffs Kevin Craig, Alicia Lekas, Tony Lekas, and Hershel Nunez, each a member of the New Hampshire House of Representatives, alleged that House Rule 63 - which, with limited exceptions, prohibited the carrying or possession of any deadly weapon in Representatives Hall, as well as in the anterooms, cloakrooms, and House gallery - violated their fundamental rights under Part I, Article 2-a of the New Hampshire Constitution. The trial court dismissed the complaint, concluding that because the issue presented a nonjusticiable political question, the court lacked subject matter jurisdiction. The New Hampshire Supreme Court determined the issue as to whether House Rule 63 violated appellant's fundamental right to keep and bear arms under Part I, Article 2-a of the State Constitution was indeed justiciable, therefore the trial court erred when it dismissed the complaint. The matter was remanded for further proceedings.