So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago’s violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago’s crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago’s sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17–22 of the brief, and the appendices.

Currently before the Illinois Supreme Court is People v. Aguilar, which raises the question of whether Illinois can, consistently with the Second Amendment, prohibit the carrying of firearms for lawful self-defense in public places. Illinois is the only state with such a blanket prohibition. Illinois state law bans open and concealed carry, and has no procedure for licensing either. The only people allowed to exercise the right to defensive carry are persons in some specially-favored categories, such as elected officials and security guards.

Oklahoma City Univ. law professor Michael O’Shea has written an amicus brief in the case, on behalf of co-authors of the forthcoming law school textbook Firearms Law and the Second Amendment (Aspen, 2012). O’shea’s co-authors Nicholas Johnson (Fordham) and I both made some suggestions for the brief, but the vast majority of the work was done by O’Shea. As the brief demonstrates, McDonald and Heller make it clear that the Second Amendment protects a right to carry arms (except in “sensitive places”). The brief does not argue in favor of a particular system for licensed or unlicensed carry. Rather, our point is that a complete prohibition is facially unconstitutional; there is no need to get into the standard of review issues that would be involved in a regulation (as opposed to a complete prohibition) of the exercise of the right to bear arms.

Very early next year–in time for 2d semester classes in the 2011-12 academic year–Aspen Publishers will publish the first law school textbook on the the Second Amendment. The title is Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The co-authors are Nicholas Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me.

Below the fold is the full Table of Contents and Preface for the book. (Pasting the Word document into the blog format significantly altered many of the indents, line spacing, and outline numbering for chapter subdivisions, so the TOC below does not look exactly like the TOC of the book itself.) Because the textbook is currently in the production process, review copies are not yet available. Indeed, the Aspen website’s promotional page for the book is still several weeks away. However, if you might use the textbook next semester, and would like to see some chapters, just contact any of the co-authors, and we can mail them to you.

The 11 chapters of the printed textbook proceed chronologically, from ancient Rome, Greece, and China, all the way to the post–Heller cases. Four additional, on-line only chapters cover some special topics. Those electronic chapters will be available to all students and professors using the textbook.

Besides being sold as a conventional hardback, Firearms Law will also be available in individual electronic chapters. So if you are teaching a constitutional law course and would like to include a 2 or 3 week unit on the Second Amendment, your students could buy chapter 9 (Heller and McDonald) plus chapter 11 (post–Heller cases in the lower courts). Or if you’re teaching an advanced criminal law class, you might want to have your students buy chapter 8, which covers the modern criminal law of gun control, particularly under the federal Gun Control Act.

Continue reading ‘New law school textbook on the Second Amendment and firearms regulation’ »

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

Rob Natelson explains it all in his latest blog post. Short answer: if the purpose of the tax is raising revenue (e.g., the Stamp Act), it’s a tax. If the purpose is the regulation of commerce (e.g., a prohibitive tariff on imported French clothing; a shipping tax dedicated to paying for harbor improvements), then it’s not a “tax” in the the constitutional sense. Rather, it is a regulation of commerce.

The American colonists believed that Parliament had full authority to regulate external commerce, such as by imposing protectionist tariffs. The colonists also believed that Parliament had no authority to impose domestic taxes in the colonies (such as the Stamp Act). The colonists had a very firm sense of the distinction, and ended up going to war over Parliament’s refusal to respect that distinction. Because the Obamacare mandate is designed purely to control behavior, and not to raise revenue (even if it, like a protectionist tariff on French clothing does ultimately raise a little revenue), the Obamacare mandate is a type of commerce regulation, and not a tax in the constitutional sense. That, at least, is what the original meaning tells us.

Of course whether the individual mandate actually qualifies as a regulation of “commerce...among the several States” is a separate issue. The original meaning question for the mandate’s penalty is a commerce issue, not a tax issue.

That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

Today South Carolina Republican Senator Jim Demint hosted a forum at which five Republican presidential candidates spoke. The transcript is here. Each candidate appeared one at a time, and the format allowed for in-depth questions and answers. Among the questioners was Princeton University’s Robert George. Prof. George asked each candidate if he or she would support congressional legislation, under section 5 of the 14th Amendment, to ban abortion. To state the obvious, such legislation would be contrary not only to Roe v. Wade and Penn. v. Casey (abortion rights are protected by section 1 of the 14th Amendment), but also to Boerne v. Flores (Congress cannot use section 5 to protect a right in defiance of direct Supreme Court holding about the particular aspect of the right). The question explicitly presumed that Roe v. Wade had not been overturned, and that a Human Life Amendment to the Constitution had not been adopted.

The candidates’ answers were as follows:

Bachmann: Yes.

Cain: Yes.

Gingrich: Yes. Cooper v. Aaron’s assertion of judicial supremacy was wrong. Following the precedent of the first Jefferson administration, I would abolish some federal judgeships. But I am not as bold as Jefferson. “I would do no more than eliminate Judge Barry in San Antonio and the ninth circuit. That’s the most I would go for. (LAUGHTER) (APPLAUSE). But let me say this. That’s part of the national debate. That’s not a rhetorical comment. I believe the legislative and executive branches have an obligation to defend the constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States.”

Paul: No. Violence and murder should be dealt with by the states. The federal police are already too numerous. I support a bill to deprive lower federal courts of jurisdiction over abortion cases, so that state restrictions on abortion would be immune from judicial review.

Romney: No. I would focus on appointing judges who would return abortion regulation to the states. The George proposal “would create obviously a constitutional crisis. Could that happen in this country? Could there be circumstances where that might occur? I think it’s reasonable that something of that nature might happen someday. That’s not something I would precipitate.”

Personally, I agree with the Romney approach. Moreover, the next President is going to have to address a fiscal crisis that will devastate the United States economy soon if it is not solved. Dealing with the fiscal crisis is going to be quite difficult politically, in part because there are many millions of people who benefit from the current, and unsustainable, levels of federal spending. The tax consumers may be very highly resistant to any reduction in the amount of money that flows to them. So there will be no shortage of national division and acrimony. Thus, 2013 would be an especially bad time to precipitate a constitutional crisis over a social issue. The answers of Romney and Paul displayed prudence, which I think is a very important characteristic for a President, and the answers of Bachmann, Cain, and Gingrich did not.

As for the Ninth Circuit, Gingrich has been saying the same thing since March, according to Politico. I have not found anywhere where he has provided details on this plan, but perhaps it would involve merging the 9th circuit states into the 8th and 10th circuits, since they border the 9th. The Politico article is not entirely clear, but it appears that Gingrich has claimed that he could get rid of the 9th circuit by signing an executive order. This would be plainly unconstitutional, a usurpation of power worthy of impeachment. Article III gives Congress, not the President, the power to “ordain and establish” the inferior federal courts. During the Jefferson administration, the Judiciary Act of 1802 repealed the Judiciary Act of 1801, in which the lame duck Federalist Congress had created many new federal judgeships, to which President John Adams had appointed Federalists in the waning days of his administration. As President Jefferson recognized, the choice to eliminate federal judgeships belongs to Congress, not the President acting by himself. [Update: a commenter says the video (for which a link was not provided) shows that Gingrich was not claiming that he could abolish the 9th Cir. by executive order. I looked on the Internet, and did not find a video of the March 25 Iowa speech by Gingrich. There’s a video of a speech earlier that month in Iowa, in which he criticizes the 9th cir. but does not call for its abolition.]

My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

This essay, which I wrote in 2000, celebrates the brave men and women of the Colorado labor movement, who in the coal fields of southern Colorado early in the 20th century, stood up against murderous company goons and against the soldiers of the Colorado National Guard who perverted their organization.

Labor Day is a day to remember that labor rights are human rights, and that the right of Americans to come together in voluntary organizations, including labor unions, is part of the core of American freedom. On Veterans Day or Memorial Day, we remember that the freedoms we enjoy today are the fruit of the sacrifices made by our armed forces. We remember this even if we disagree with some military actions, or even if we know that some past or present military leaders were bad people. Likewise, on Labor Day, even if we recognize the harmfulness of much of the current agenda of SEIU, NEA, and so on, we should remember the historic debt that all Americans owe to the Labor movement. One part of that debt is the essential role that labor leaders such as Walter Reuther and Lane Kirkland played in providing bipartisan support for resistance to the evil Soviet empire, an empire whose ultimate objective was to reduce all the workers of the world to slavery.