January-March 2009 Kopel's Corner Blog Archive

 [David Kopel, March 28, 2009 at 11:42pm] Trackbacks

New paper on licensed carry on campus

Pretend "Gun-free" School Zones: A Deadly Legal Fiction. Just uploaded on SSRN, and submitted to law reviews. Sixty-three pages examining the empirical evidence regarding the licensed carrying of firearms by professors, schoolteachers, and adult students.


[David Kopel, March 27, 2009 at 12:13pm] Trackbacks

Left/Right bloggers: Huge split on deficit; smaller split on Obama's on-line mobilization

In this week's National Journal poll of political bloggers, the first topics was "How should Congress respond to the recent deficit projections?" The first question thereunder produced a rare perfect split between the Left and the Right. One hundred percent of the Left said that Congress should "Pass something close to President Obama's budget," and 100 percent of the Right said not. The options of "Delay some major Obama initiatives" and "Cut the growth in entitlements" also yielded huge splits, although not quite 100% vs. 100%. "Cut the growth in defense spending" got 80% support on the Left, and 35% support on the Right.

My comment: "The congressional majority's handling of the 'stimulus' -- particularly in forcing votes before the conference report could even be read -- evoked the last days of the Roman Republic, with a legislature abdicating governing responsibility to an all-powerful executive. At the least, the rank and file of both parties should insist on proper legislative procedures when the budget is considered, so that every legislator (or his staff) has time to read the budget before every vote."

The second topic was "What effect will Obama's online mobilization effort have on Democratic efforts to pass the budget?" On the Left, 94% said it would help either a lot or a little. Forty-two percent on the Right felt the same way; within both groups, "a little" was by far the leading choice. I voted "a little", and commented: "Because the budget promotes even more of the same old failed policies of D.C. (wasteful pork spending and reckless deficits) rather than the change that Obama promised, it will be interesting to see whether the Obama online network is so devoted to the cult of personality that they will mobilize in large numbers." 18 Comments


[David Kopel, March 26, 2009 at 1:49pm] Trackbacks

Was Heller Insignificant?

So claimed the New York Times last week, relying heavily on UCLA law professor Adam Winkler. In an article in today's The New Ledger (a on-line newspaper and news aggregator that started publication in January), I argue that the Times missed many instances in which Heller has had a direct and significant impact--in getting rid of oppressive gun laws, or in requiring the fairer enforcement and application of others. 22 Comments


[David Kopel, March 21, 2009 at 2:56am] Trackbacks

The Obama administration's three front move against citizen firearms

In this week's Second Amendment Podcast, Jon Caldara and I discuss three recent steps the Obama administration has taken against firearms: canceling Department of Defense sales of once-fired brass; strangling the armed pilots program; and the new National Park Service rule against lead in national parks. The show was taped on Tuesday, and, happily, the first problem was fixed on Wednesday, as I explained in a postscript. 46 Comments


[David Kopel, March 20, 2009 at 11:39am] Trackbacks

Left/Right bloggers agree: Obama team weak on promoting economic confidence; bailout fatigue will impede Obama agenda

This week's National Journal poll of top political bloggers finds some broader areas of agreement. Asked to "Grade the performance of the president's economic team in inspiring public confidence," neither the Left nor the Right thought that the team was doing a good job, although there was disagreement about how bad they were doing. The Left gave Team Obama a C+, while the Right awarded an F. My comment: "Like McCain, the Obama team is right that the economy is not nearly as bad as the hysterics contend. But the Obama team itself was a prime promoter of hysteria -- not only during the campaign, but also during the push for the so-called 'stimulus,' which was based on aggressive use of the politics of fear. So at this point, some people are understandably skeptical when Obama now tells us: 'Never mind. The economy is fundamentally sound. Trust us. Stop all those Tea Parties.'"

Question two was "How much will bailout fatigue hamper President Obama's ability to advance his economic agenda?" Sixty-four percent of the Left said "a great deal" or "a moderate amount," and did 88 percent of the Right. My comment: "At this point, it is difficult to believe that the Obama administration is competent at spending money efficiently, or much interested in adhering to its admirable campaign promises in favor of transparency and against pork and earmarks. Given the record so far, giving the Obama administration even more money to spend -- especially on something as monumental as restructuring American health care -- would be like putting Kathleen Blanco in charge of disaster relief." Not that the performance of the Bush administration--either in its handling of Katrina or of the corporate welfare bailouts--was any better. 55 Comments


[David Kopel, March 19, 2009 at 3:05pm] Trackbacks

Bleg on shooting and concealed carry data

There are several studies of how often police officers miss the criminal whom they are shooting at. Are there any studies or data regarding how often those missed shots injure or kill an innocent bystander? I suspect the rate is very, very low.

Second, the discussion about whether people with CCW licenses commit crimes at a high rate (as the Brady Campaign and the Violence Policy Center often assert) tends to involve data from Florida and Texas. Do VC readers know of data from other states? 23 Comments


[David Kopel, March 18, 2009 at 1:48am] Trackbacks

Happy St. Patrick's Day!

Enjoy this version of "A Nation Once Again," voted the world's most popular song by BBC listeners.

This great and timeless song fills me with joy about nations such as Ireland, Israel, and the United States, which have won their independence, and with hope for Taiwan, which seeks to perfect its independence. May the great example of the Irish freedom fighters of 1916-21 (and in the centuries before) give strength to the all the oppressed people around the world--in Tibet, Darfur, and many other places--who still seek their right of self-determination, and to live in peace in the community of nations.

The Irish revolution was inspired by the American Revolution, and, as "A Nation Once Again" illustrates, by the brave Spartans at Thermopylae ("three hundred men") and by the Roman story of Horatio at the Bridge ("and three men"). "A Nation Once Again" was written by an Irish Protestant, showing that Irish nationalism at its best, is non-sectarian and inclusive, as the Proclamation of the Republic affirmed. The great liberation, from the Exodus to the present, is the common heritage and the common hope of all freedom-loving peoples. God Save Ireland, and God Bless America, "For, Freedom comes from God's right hand, And needs a Godly train." 35 Comments


[David Kopel, March 16, 2009 at 7:47pm] Trackbacks

Virginia Tech's Students for Concealed Carry on Campus

Last week, two student leaders of the Virginia Tech chapter of Students for Concealed Carry on Campus were interviewed in a podcast by the Independence Institute's Jon Caldara. It's an 18 minute podcast, and very powerful, not only in the personal stories that are told, but in the calm logic of the SCCC presentation.

Here at the Independence Institute, we have started a weekly series of podcasts on Second Amendment issues. Some recent topics have been: international data showing the countries with most guns tend to have the most civil, political, and economic freedom; my law review article in progress on campus carry reform; the call to ban "assault weapons" because of problems in Mexico; Education Secretary Arne Duncan; and the Independence Institute's empirical brief in the Chicago handgun ban appeal. The archive of all our iVoices.org podcasts on Second Amendment issues is here. 18 Comments


[David Kopel, March 6, 2009 at 11:56am] Trackbacks

Left/Right bloggers have huge split on Obama spending. Right bloggers did not expect it:

In this week's National Journal poll of political bloggers, we see one of the largest splits between Left and Right bloggers ever recorded in this this poll (which is several months old). The first topic was a four part question about whether Obama was over-reaching with global warming tax, health care spending increase, doubling the national debt, or cutting itemized deductions for high earners. On the Left, the answer was a 100% "no" on three of those, with a 92% "no" on the debt. On the Right, the answer was 86-93% "yes" on all of them.

I voted "yes" on everything, and wrote: "He's even worse than George W. Bush on wild spending increases and reckless deficits. That's like being even fatter than Fat Albert."

The second question was whether Obama was governing more to the left or more to the center than expected. For the Left bloggers, the plurality winner was the write-in: "about as expected." Things were about equally divided between the other two choices.

For the Right bloggers, "more to the left" was the choice of 73%. I was among those who was surprised, and wrote: "Almost as far left as I feared he might be during the campaign, based on his record as an elected official. During the transition period, I mistakenly thought that some of the appointments portended a more centrist approach, but that has certainly not been the case on fiscal policy." 41 Comments


[David Kopel, March 2, 2009 at 3:54pm] Trackbacks

Text to speech bleg

Do readers have recommendations for good software for text to speech conversion? I would like to take some of the articles I have written, for which I still of course have the electronic files, and make them available in MP3 format. The project only seems worth doing if the resulting MP3 file is high quality. So what software should I investigate? 20 Comments


[David Kopel, February 27, 2009 at 1:03pm] Trackbacks

Journalistic stages of grief:

Today's on-line Columbia Journalism Review features an article titled Rocky Mountain, Bye: Rocky Mountain News staffers share their thoughts on the paper’s closing. Yesterday the CJR asked Rocky staffers to send in a paragraph or so of their thoughts. There are a wide variety of reactions.

A small number of Rocky writers, including the excellent sports columnist Dave Krieger (whose CJR comment expresses his frustration with Scripps' corporate priorities) will be moving to the Denver Post. As many of you know, I've never been a full-time employee of the News, just a bi-weekly columnist; my regular job is Research Director of the Independence Institute, one of the oldest state-level think tanks in the U.S. I wish that the Ind. Inst. had a few million dollars sitting around in a vault, so we could hire some of the great journalists who will be losing their jobs.

The CJR's request for a reaction put me in a historical mood:

It’s been a very high-tech day, with the Rocky posting near-instant video coverage of its own death. Yet today evokes for me a picture of Italy around 450 A.D., with declining literacy, and the crumbling of what used to be the great institutions of civic engagement. As a media columnist, I’ve written often about media bias, which is a very serious problem, but which is not the primary cause of the current collapse of the newspaper business. We have a society that reads less and less, and which passively watches more and more video. Over the long term, I expect that quality coverage of national business and national politics will survive, because there will be enough highly-literate readers who will pay the premium prices necessary to support sophisticated reporting. But I am not at all confident that there are enough readers who will pay what is necessary for the existence of good coverage of local news. At a time when governments are growing more and more powerful, we are losing a crucial part of our checks and balances. "Quis custodiet ipsos custodes?" as they used to say. A healthy society needs someone to guard us from the government "guardians." Newspapers have been far from perfect in performing this vital, protective civic role, but more protection is better than less. With the Rocky's demise, Colorado is going to have much less.
Today's final edition of the Rocky Mountain News, available, of course, for free on the web, includes a 52-page special wrap-around section about the nearly-150-year history of the paper. It would have been a great addition for the Rocky's 150th birthday, 55 days from today. But I guess the birthday edition had to come a little early, combined with the funeral edition. 55 Comments
[David Kopel, February 27, 2009 at 12:44pm] Trackbacks

Left/Right bloggers both worried that stimulus will go to undeserving

In this week's National Journal poll of leading political bloggers, 76% of Left-leaning bloggers and 100% on the Right are either "somewhat concerned" or "very concerned" that federal stimulus money will go to people who don't deserve it. I was among the very concerned: "Taking money from responsible and prudent homebuyers and renters and giving the money to reckless borrowers and lenders will promote more irresponsible borrowing and lending in the long run."

On the question of whether another stimulus will be necessary later this year, 88% of the Left and 40% of the Right thought so. I thought not: "Since the first package was not 'necessary' but will likely be inflationary and economically harmful, it is unlikely that a second round of even more debt could be necessary."

Earlier this week, National Journal published an annotated version of the President's State of the Union speech. Various portions of the text are marked to show where they relate to a campaign promise, mark a break with the Bush administration, etc. There is also highlighting for the reaction of pundits, bloggers, and experts to particular items in the text. I comment on the line: "And we will expand our commitment to charter schools." My view: "Constitutionally, Congress and the president have no business trying to manage local public schools. But as long as the federal government is involved, promoting charter schools is an excellent way to improve public education. More diversity, more choice, more accountability. A win-win-win." 37 Comments


[David Kopel, February 27, 2009 at 3:09am] Trackbacks

We'll lose more than a paper

My farewell column for the Rocky Mountain News:

Unfortunately, the demise of the Rocky is more than a 50 percent diminution in newspaper quality in Denver. There's the direct loss of the stories which the Rocky covered and the Post didn't, or which the Rocky investigated thoroughly and the Post only superficially. But there's also the less visible loss of how competition with the Rocky has made the Post a better paper throughout all of that paper's own venerable history. Having two newspapers is more than twice as good as having just one, because each newspaper spurs the other to better work....

With the Rocky gone tomorrow - and the Post perhaps gone within two years - who is going to report the news in Denver? The TV and radio stations only report a fraction of the number of stories that go into a daily newspaper, and the reporting is much less detailed than what's in the papers.

It's possible to have a republic without newspapers. But we've never done it in America, and there's no guarantee that we'll succeed at doing it.

47 Comments
[David Kopel, February 26, 2009 at 4:35pm] Trackbacks

Rocky Mountain News will close

Tomorrow's edition of the Rocky Mountain News will be the last. Founded in 1859, the Rocky is the oldest business in the Denver, and its demise comes a few weeks short of its 150th birthday. The paper has been part of my family since before I was born. My father was an editor for the paper in the 1950s; I've been a biweekly media columnist there since 2001. The Rocky's coverage of today's announcement is here. Note the little icon on your browser's tab.

In an iVoices.org podcast taped this afternoon, Jon Caldara and I discuss what a terrible loss this will be for Colorado. A few weeks ago on Jon's TV show Independent Thinking (channel 12 KBDI, 8:30 p.m. on Fridays), Jon interviewed Rocky publisher John Temple. Temple accurately predicted that the Rocky would not survive until the end of the month. You can watch the interview here. 39 Comments


[David Kopel, February 24, 2009 at 11:33am] Trackbacks

Kirsten Gillibrand and the gun issue

In today's National Review Online, I suggest that it would be politically self-defeating for Sen. Gillibrand to reverse her position on Second Amendment issues.

As my article explains, in 1996 incumbent Republican Representative Daniel Frisa faced a challenge from Carolyn McCarthy, and so he did an about-face on gun issues, while claiming that he had been consistent all along. Thus, "Voters could see that McCarthy had a sincere and consistent position on gun control, while Frisa changed his position based on transparent political calculation. Frisa’s flip-flop undoubtedly made voters wonder which of his other supposed convictions he would abandon when it became politically useful. McCarthy crushed him in the general election by 58 to 41 percent."

Gillibrand's strong support for the Second Amendment is likely an advantage in the general election, and a flip-flop would doom her in the primary. 24 Comments


[David Kopel, February 23, 2009 at 8:57pm] Trackbacks

Secretary of State Clinton and the Second Amendment:

That's the topic of my new article for America's 1st Freedom, a NRA member magazine. Of course the Second Amendment is not the most important issue by which Secretary of State Clinton will be judged, but as Secretary of State, Mrs. Clinton will, like her predecessors, have the ability to affect the domestic exercise of constitutional rights by American citizens. A 12 minute iVoices.org podcast on the topic is also available.

Part of a series which includes Attorney General Holder (article, podcast), and Chief of Staff Emmanuel (article), with more installments in the works. 37 Comments


[David Kopel, February 20, 2009 at 11:00am] Trackbacks

Bloggers disagree on Obama and Congress Republicans; agree that Congress Dems are not stellar

This week's National Journal poll of leading political bloggers asked for grades for performance thus far of President Obama, House Republicans, and House Democrats. For Obama, the Left awarded a B, and the Right a D. I was one of the D voters, with this comment: "'Stimulus' was a bait-and-switch which broke Obama's promises of transparency. Moving the census to the White House from Commerce is Chicago-style sleaze. When I voted for Obama over Clinton in the Colorado caucus, I was mistaken to think the result would be cleaner government."

For the House Republicans, the grades were reversed, with the Left giving a D and the Right giving a B. I gave them an A: "United against intergenerational theft and reckless deficit spending. Too bad they didn't do the same under Bush."

Grades were somewhat closer on Congressional Democrats. The Left said C+, while the Right said D. My comment: "Spending other people's money like sailors on shore leave. Waxing indignant about mortgage woes and greed while leaving Rangel, Frank and Dodd in chairmanships. At least they get an A+ for chutzpah." 99 Comments


[David Kopel, February 18, 2009 at 1:46pm] Trackbacks

Judges in Spain go on strike

About 1,700 of Spain's 4,400 judges are going on strike, although they will continue to process some particularly urgent matters. Details here (in Spanish, from the excellent web newspaper ElDiarioExterior.com). The judges argue that they are underpaid and overworked; they want 1,200 new positions to be created over next five years, to move Spain closer to the European Union average, and to help with what the judges say are overflowing dockets. Comments are welcome from readers who know about the Spanish judiciary. 14 Comments


[David Kopel, February 15, 2009 at 11:37pm] Trackbacks

Mexican firearms laws--translation

Here's a new project to utilize the immense collective mind of VC readers: an English translation of the Mexican firearms statute. The Mexican law, in Spanish, is here. My translation thereof into English is here. Neither the intern who did the first round of the translation, nor I, speak Spanish as a native language. Indeed, my Spanish is extremely primitive; I know less than an American middle schooler with one year of Spanish. Although I am developing an interesting vocabulary, of words such as "fuego circular" (rimfire).

The initial translation was done via machine, and then reviewed and modified by very inexpert humans. So I solicit readers with good Spanish skills to provide suggestions for improvements in any or all of the 91 Articles of the Mexican firearms law. Please focus on improving the translation, and not on arguing about policy questions involving the law.

BTW, the dictionary I used was the Larouse College edition, which is high quality, but did not have the definitions for some words (e.g., "cumuneros" "lanzagases"), or had general definitions for some words, but perhaps lacked the tertiary definitions that were needed here. Do readers have any good suggestions for more advanced Spanish-English dictionary? And, clearly, web-based translation programs are great because they're free, but they obviously have trouble with complex sentences or vocabulary. Any recommendations for a software program for Spanish-English translation? Muchas gracias, lectores inteligentes.

p.s. If you're looking for the spots that caused me the most trouble, just look for the ? in [brackets]. BTW, I would also be grateful for a link to the Mexican Firearms Regulations if there is an on-line version. And for the June 2009 report to the Mexican Senate on arms smuggling.21 Comments


[David Kopel, February 13, 2009 at 5:16pm] Trackbacks

Left/Right bloggers pessimistic on bipartisanship, split on Afghanistan surge

This week's National Journal poll of leading political bloggers find over 90% of Left-wing and Right-wing bloggers being either "less encouraged" or having "no change" in their hopes for bipartisanship in Washington. (And the "no change" people never had much hope in the first place.) I was among the tiny minority that was "more encouraged," although not because I think that Obama's current course is going to attract Republican support. Rather, "The opposition of some Blue Dogs to the House version of the 'stimulus' (actually just a long-term spending spree, not a short-term stimulus) raises hope that more and more centrist Democrats will join in bipartisan opposition to irresponsible and overreaching measures pushed by Pelosi/Obama."

Should the U.S. send 30,000 more troops to Afghanistan? About 2/3 of the Right and 1/3 of the Left thought so. My view: "President Bush led us to victory in Iraq. Let's hope President Obama does the same in Afghanistan." I do agree with bloggers who suggested that "more troops" is not the only issue; improved strategy and tactics are also important. 28 Comments


[David Kopel, February 7, 2009 at 3:17pm] Trackbacks

An Internet without Newspapers

When newspapers cease to exist, who will supply the news for all those folks who claim they don't need newspapers because they get their news on the Internet? I conduct a small study of the question in my latest Rocky Mountain News column, Dying newspapers, vanishing coverage. 52 Comments


[David Kopel, February 6, 2009 at 11:53am] Trackbacks

Political bloggers: Obama nominees missteps serious but not critical. Obama has strong but limited influence over Cong. Dems.:

This week's National Journal poll of leading political bloggers asked, "How much damage have controversies surrounding the nominations of Tom Daschle, Timothy Geithner and William Lynn done to President Obama's image?" On the Right, the leading choice was "some", with about a quarter answering "a great deal" or "only a little." On the left, the leading choice was "only a little" (53%), while "some" got about a third.

My view: "Daschle's tax avoidance was impossible to defend as minor or just an honest mistake. It helps Obama in the long run that he will not be in the Cabinet, since he would have been a visible link between the administration and the Rangel/Dodd/Frank congressional culture of corruption. Lynn broke no law (even though his lobbying work offends the far left), and Geithner's original error really was caused by his tax software (as demonstrated by my Volokh Conspiracy colleague James Lindgren)." I think Daschle is a big setback this week, but it will eventually be forgotten--and having someone like Tennessee Governor Phil Bredesen rather than Daschle will be much better for Obama (and the country) in the long run.

The second question was: "Based on events of recent weeks, how much sway do you think President Obama will have over congressional Democrats?" On a 1-5 scale, the Left voted for 4.0, and the Right for 3.2. My vote was a tentative 4. "We don't know yet for sure if Pelosi/Obey turning the 'emergency stimulus' into a massive permanent increase in ordinary domestic spending was contrary to Obama's wishes. If so, it suggests that Obama's influence over Congress may be weak. If Obama likes what the so-called 'stimulus' has become, this suggests that the new administration might be as fiscally irresponsible as the previous one." 22 Comments


[David Kopel, February 5, 2009 at 5:41pm] Trackbacks

Amicus brief in Chicago handgun ban cases

Just filed before the 7th Circuit Court of Appeals, an amicus brief on behalf of the International Law Enforcement Educators & Trainers Association, Independence Institute, The Heartland Institute, Prof. David Bordua, Prof. William Tonso, and the Law Enforcement Alliance of America.

This is a Brandeis Brief, providing social science evidence showing that guns in the hands of law-abiding people make a substantial contribution to public safety. The brief also explains why civilian handgun ownership helps so much with the training of new police officers. Finally, the brief provides data from Chicago showing that crime in Chicago (particularly, burglary and assault) sky-rocketed after the ban was enacted, and that the percentage of Chicago homicides committed with handguns has nearly doubled.

Because of the word limits in the 7th Circuit, this Brandeis brief is much shorter than the original Brandeis brief, which was 113 pages. But I'm proud that the 2009 brief upholds the freedom-loving spirit of Justice Brandeis, who stated: "We shall have lost something vital and beyond price on the day when the state denies us the right to resort to force." [The Brandeis Guide to the Modern World, ed., Alfred Lief (Boston: Little, Brown & Co., 1941), p. 212.]

A comprehensive set of all the court documents in the Chicago handgun ban cases is available here. 2 Comments


[David Kopel, February 5, 2009 at 2:04pm] Trackbacks

Hurray for President Obama!

The White House affirms that he will end the Bush/Clinton policy of raiding medical marijuana providers who are operating within the parameters of state law. A victory for patients, for the Tenth Amendment, and for responsible use of federal law enforcement resources, as Mike Krause and I argued in 2001.53 Comments


[David Kopel, February 5, 2009 at 11:24am] Trackbacks

Car Dealer Franchise Laws

One major problem currently faced by automakers is that they are stuck in economically irrational permanent contracts with franchised auto dealers. These arrangements were not created by bargaining, but by legislative fiat. My father Jerry Kopel explains the problem in Colorado, and a new bill which would make the problem even worse. The column originally ran in the Colorado Statesman, Colorado's weekly political newspaper.

My father served 22 years in the Colorado House of Representatives, representing northeast Denver. One of the most liberal members of the legislature, he was (and is) a strong champion of consumer rights. Among other things, he was the lead sponsor of Colorado's adoption of the Uniform Consumer Credit Code. As a consumer advocate, he observed how professional licensing is frequently used as a tool to exclude competition, rather than to guarantee professional quality. Accordingly, he sponsored the first Sunset law in the nation, requiring that professional licensing boards automatically expire after a period of years, unless they are renewed by an affirmative act of the legislature.19 Comments


[David Kopel, January 31, 2009 at 1:51am] Trackbacks

Left/Right bloggers agree on recession, split on "stimulus"

In this week's National Journal poll of leading political bloggers, the Left and Right have similar views on how much longer the recession will continue. A plurality expect 13-23 months. Zero expect less than six months. About a quarter expect 7-12 months, and about a third expect 24 months or longer. I was in the latter group, and wrote, "Like FDR/Hoover, Obama is pursuing policies that may deepen and extend the economic problem in the long run."

Would it be good if Republicans supported the "stimulus"? Left bloggers were evenly split, whereas Right bloggers unanimously said "no." I voted No, "For the same reason it would be desirable not to have significant Democratic support: borrowing an extra trillion dollars a year and spending much of it on pork is a continuation of the reckless borrowing and irresponsible spending (at both the federal and the personal level) that got us into this mess in the first place."0 Comments


[David Kopel, January 30, 2009 at 9:28pm] Trackbacks

Arms Trade Treaty's Purpose: Block Arms Sales to Israel

A recent statement by the International Action Network on Small Arms, the world's leading gun prohibition lobby, states that the Arms Trade Treaty, currently being drafted in the United Nations, would prohibit arms sales to Israel and to Hamas. Rebecca Peters, the head of IANSA, accuses both Hamas and Israel of violating international law, and explained that the ATT would outlaw weapons sales to both parties. According to the press release:

[Peters said:] "Yet some states continue to supply weapons to the protagonists. Some of these transfers are 'legal', meaning approved by the exporting and importing governments. The most obvious case here is the continuing US supply of arms to Israel."

Last week IANSA reported that the US tried to ship 989 containers of ammunition, explosives and other munitions to Israel, through European ports.

A strong and effective global Arms Trade Treaty would have prevented these transfers, and more importantly would have prevented transfers in the past few years, reducing the protagonists' capacity to wage their deadly war.

Under the rules of war, attacks should not be indiscriminate, and precautions must be taken to minimise civilian casualties. Around 1300 Palestinians were killed in the recent attacks by Israel on Gaza. Most of these victims were non-combatants, including nearly 500 children. Israel claimed these attacks were militarily necessary, because the military targets were located within civilian settlements. But the massive number of casualties resulted in part because Israel failed to give sufficient warning to civilians.

 12 Comments


[David Kopel, January 28, 2009 at 2:22pm] Trackbacks

The Case against Impeaching Rod Blagojevich

Over at Legal Insurrection, Cornell's William A. Jacobson is making some excellent arguments against an Illinois Senate conviction of Governor Blagojevich. To wit: the evidence against Blagojevich consists almost exclusively of an FBI agent affirming the authenticity of highly selective excerpts from surveillance tapes which he provided via an affidavit. Notably, Agent "Cain refused to answer whether the excerpts in the affidavit put events in 'the proper context' (Tr. 293) or whether he has learned anything in the seven weeks since he signed the affidavit which 'would make any of the statements in your affidavit untrue?' (Tr. 299)."

Put me in the camp that is reluctant to ruin someone's life just because Patrick Fitzgerald says so. I thought the Scooter Libby prosecution was wrong. And it seems clear that Fitzgerald's press conference against Blagojevich was an extreme violation of Illinois Rule of Professional Conduct 3.8(e). (For a discussion of the prosecutor's ethical duty not to make unnecessary statements against the accused, see my 2002 NRO article on Attorney General Ashcroft's remarks about John Walker Lindh. Compared to Fitzgerald's remarks, General Ashcroft's comments were relatively mild.)

Do I think that Blagojevich could well be guilty? Yes. Do I think that Blagojevich has any merits as a public servant? No. How well do I know Blagojevich? Only slightly, having debated him on ABC Nightline (about gun shows) when he was a U.S. Representative in 1998.

So if I were in the Illinois Senate, I might well, with great personal regret, vote against the conviction of Governor Blagojevich on the articles of impeachment. 76 Comments


[David Kopel, January 24, 2009 at 6:28pm] Trackbacks

Newspaper coverage of Obama vs. Previous Inaugurals

My media column in today's Rocky Mountain News compared how much coverage the News and the Denver Post provided in the pre-inaugural week for the most recent inauguration, versus Clinton in 1993 and Bush in 2001 (which like 2009, featured a change of party). Since the Obama inauguration was said to be "historic," I also examined coverage of two other inaugurations which had some similarities (in terms of obvious historical character) with 2009: JFK in 1961, and Reagan in 1981. The results don't provide evidence of a pro-Democratic bias, since Bush 2001 and Clinton 1993 were about equal in quantity of coverage, as measured by the number of staff-written stories. Indeed, the 1961, 1981, 1993, and 2001 inaugurals were about equal in terms of coverage. These were dwarfed by the amount of coverage for Obama 2009.81 Comments


[David Kopel, January 21, 2009 at 4:35pm] Trackbacks

Left and Right Agree: Good Grades for Obama

In this week's National Journal poll of leading political bloggers, the Left gives Obama's inaugural speech an A-, and the right gives it a B-. I gave it a B, with the comment, "Excellent use of history, combined with solid patriotism for the 21st century. Some of his policy ideas, including the prominence of the global warming issue, bode ill for America's economic future."

Did the speech meet the public's expectations? From the Left, 86% said "yes." On the right, 46% thought so, and another 46% said "partially." My view: "Yes he did, yes he did! In delivering a prepared speech, Obama ranks at the very top, with Reagan and FDR." 32 Comments


 [David Kopel, January 17, 2009 at 4:07pm] Trackbacks

SHOT Show Report

I returned last night from the SHOT Show (Shooting, Hunting, and Outdoor Trades), in Orlando. SHOT is the annual trade show for the firearms industry, and it also attracts lots of exhibitors for hunting clothing, archery, law enforcement gear, knives, and so on. The mood is not unlike the mood at the 1993 SHOT Show, when the Clinton administration was taking power. Retailers, wholesalers, and manufacturers were happy that they had been making lots of money (because of concerns about the administration) but there was also great trepidation about the future.

One important difference is that the firearms industry is much better-organized and politically-informed than in 1993. The 1994 ban on so-called "assault weapons," plus the wave of anti-manufacturer lawsuits filed by mayors in 1998-99, has made the industry much more aware of its need to defend itself politically. The National Shooting Sports Foundation (NSSF) is a much, much more effective organization than it used to be.

Because the Show is held in January or February, and because it has such enormous needs for space, the Show tends to be held in one of the fairly small number of southerly cities which has a massive convention center. The people of Orlando were very, and the convention center was well-run. But the conventional wisdom is that the favorite for most people is Las Vegas, to which the Show will return in 2010.

The SHOT Show has a sort of Brigadoon feel to it. For several days, you're living in a small city (population 50,000+) where almost all your time is spent on a convention floor, or in receptions where you're talking with other gun people. One thing I like about Las Vegas is that whenever you step outside the convention, you're on (or near) the Strip, which is another zone of non-standard reality. If the Orlando Convention Center were next to Magic Kingdom, there would be a similar effect.

No-one knows for sure in exactly what way and how quickly the Obama administration will start its assault on Second Amendment rights, although there is little doubt that the assault is inevitable. (I mean "Second Amendment rights" in the normal sense of the word, not in the Obamaspeak by which banning handguns, banning lots of other guns, outlawing self-defense with a gun, outlawing concealed carry, and banning all guns stores within five miles of a school or park is consistent with the Second Amendment.)

There are some reports, from reliable journalists like as Michael Bane, that the effort to ban so-called "assault weapons" (that is, guns which differ cosmetically from other guns) may come very soon--partly as a tactic to appease hard-left activists who have been disappointed by some of Obama's appointments or what may be a relatively moderate approach to foreign policy. I'm not so sure that this would make political sense, since although gun control is popular with much of the MSM and the celebrity elite (e.g., Huffington Post), it doesn't strike me as a very important issue from the point of view of Daily Kos readers or under-35 activists.

Back in 1989-94, when there was the first federal push for an "assault weapon" ban, the ban advocates had to exempt the Ruger Mini-14 rifle, because it was so widely owned that a ban which encompassed it was politically impossible. Making things worse, from the pro-ban viewpoint, the AR-15 rifle and its many variants is probably the most popular rifle in the country today, with about five million owned, and new guns being purchased as fast as the factories can make them.

Accordingly, my guess is that any serious campaign for a new ban will not outlaw guns by name (unlike the 1994 ban), but will give the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) administrative authority to ban guns. This approach allows the Mini-14 and the AR-15 to be banned eventually, but saves Congress from having to take an explicit vote on outlawing those particular guns. The "assault weapon" bans which have been introduced in the last several Congresses have taken this approach.

Unless you're in the industry, or in media that covers the industry, you can't attend the SHOT Show. But if you're interested in what's going on there, outdoor writer Jim Shepherd has some good video of interviews with exhibitors of some of the interesting new products.70 Comments


[David Kopel, January 17, 2009 at 2:20pm] Trackbacks

The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error

Every year the Denver University Law Review publishes a Tenth Circuit Survey. In the forthcoming issue, the lead article is my examination of the Tenth Circuit's record on the Second Amendment issues. My conclusion:

The Tenth Circuit’s three-decade record of Second Amendment cases was a disgrace to the rule of law.

It was not a disgrace for wrong results. Almost all the decisions involved restrictions on narrow classes of especially dangerous weapons, or the prohibition of gun ownership for people who had proven themselves to be dangerous. Most of these results are presumptively valid under Heller, and most of the rest are in no worse than a gray zone of validity. Even pre-Heller, almost all the decisions could, as Judge Kelly observed in Parker [a 2004 case, in which a concurring opinion by Judge Kelly criticized the overbreadth of previous Tenth Circuit opinions on the Second Amendment], have been written on the narrow grounds of upholding legitimate, narrowly tailored restrictions on the Second Amendment.

The Tenth Circuit jurisprudence was not a disgrace because it adopted a militia-only theory of the Second Amendment....The Tenth Circuit’s jurisprudence cannot be called a disgrace because it ultimately ended up on the "4" side of a 5-4 Supreme Court decision. Although militia-only was a weaker theory, it was not a preposterous theory, or a theory bereft of any intellectual support.

The reason that the Tenth Circuit’s Second Amendment cases are a disgrace is that they barely had any reasoning. If you take everything that the Tenth Circuit wrote about the Second Amendment in Oakes (1977) and the 25 years of cases thereafter, the whole thing combined would not add up to a mediocre student Note in a secondary journal at an unaccredited law school.

Even the lowliest of student Notes must at least attempt to address the most important arguments on the other side. Especially when those contrary arguments come from the U.S. Supreme Court's explication of the very text that is at issue. Or from enactments of the Congress of the United States. Or from the Yale Law Journal, the Michigan Law Review, and or Larry Tribe, Akhil Amar, and Sanford Levinson. A mediocre student Note would not address all these sources, but it would address at least a couple. The Tenth Circuit spent a quarter century pretending there were no serious contrary authorities.

Nobody forced the Tenth Circuit to propound a grand theory of the Second Amendment without being able to make a serious intellectual defense of the theory. As Judge Kelly pointed out, almost all the Second Amendment cases that came to the Tenth Circuit could have been handled simply by addressing whether they involved legitimate restrictions on the right. It was a deliberate choice of the Tenth Circuit to reach out in Oakes, and to, in effect, declare that an entire Amendment to the Bill of Rights was a nullity, insofar as its protection of 99.9% of the American people.

It was the choice of the Tenth Circuit to continue to declare its Second Amendment decisions in the sweeping, nullificationist terms of Oakes. If the Circuit were determined to proceed on such a broad front, then the Circuit owed the American people a real justification of its actions. Not the pompous ipse dixit of Haney, Oakes, and the other cases, but a serious explanation. An explanation which addressed the best arguments on the other side.

That the Tenth Circuit never did so perhaps reflected a lack of intellectual self-confidence. The Tenth Circuit is a good example of Sanford Levinson’s observation that some elements of the legal elite refused to intellectually engage with the Second Amendment because of "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."

VC contributors have often posted thoughtful comments which have improved my draft articles. I look forward to similar comments here. 41 Comments

[David Kopel, January 16, 2009 at 3:37pm] Trackbacks

Lefty Bloggers say Obama is likely to succeed, and Bush was terrible. Righties disagree

This week's National Journal poll of leading political bloggers finds that 95% of left-leaning bloggers think that Barack Obama is "somewhat" or "very" likely to succeed as President. Forty-one percent of right-leaning bloggers had that assessment. I rated him "somewhat unlikely," but I think it's very hard to predict. We'll have a much better idea after he's faced the test that Joe Biden predicted.

I wrote: "Many of his appointments suggest that he could exceed the pessimistic view of conservatives who saw him as a hard leftist. We know he can run a campaign; we don't yet know how well he can run the executive branch. He will be tested early by Iran, Venezuela and/or Russia; if he lets them bully him, he will become a one-term failure like Carter."

The poll also asked for an assessment of President Bush. The Left was unanimous in rating him "Terrible." Nobody on the Right rated him as "Great," and only 29% gave him "Good." The winning plurality was "Fair," with 41%.

I voted "Good," since I graded on a curve, and thought him much better than Bill Clinton or George H.W. Bush. My rationale: "No successful terrorist attacks since 9/11. Overall good performance on domestic policy, with the exception of spending out of control. His worst major idea (semi-amnesty for illegal aliens) was, fortunately, not enacted."

Just to be clear, I was referring to terrorist attacks in the U.S., since obviously there have been major attacks in London and Madrid, among other places. And I realize that one could classify certain solo crimes (e.g., the 2002 attack on the Los Angeles airport by an Egyptian) as terrorism. My point was that al Qaeda and its organized allies were thwarted from being able to attack again in the United States. 113 Comments


[David Kopel, January 12, 2009 at 7:58pm] Trackbacks

ProPublica's dishonest defense its dishonest article

My media column for the Saturday Rocky Mountain News, discussed gross misstatements of fact which had appeared in a November 13 article by ProPublica, an organization which supplies investigative articles for free to the mainstream media. A shorter version of that article had appeared in the November 17 Denver Post.

Today, ProPublica author Abrahm Lustgarten has written a defense of his article. He claims that my article is "indisputably misleading." Let's take a look at each of the three charges which I leveled at the ProPublica article.

1. I wrote:

The theme of the ProPublica article, headlined "Buried Secrets," is the natural gas industry's refusal to disclose a list of all chemicals which are injected into the ground in hydraulic fracturing. The article accurately characterizes the Colorado Oil and Gas Conservation Commission as the "most stringent" regulatory agency regarding hydraulic fracturing.

The COGCC promulgated its final draft rules on Nov. 7, before the Nov. 13 ProPublica article, and before its Nov. 17 appearance in the Post. The article misdescribes the new regulations, and, significantly, omits the fact that the commission's new disclosure rule is nearly identical to what the drilling company Halliburton proposed in its June testimony to the commission. Section 205 of the new regulations protects drillers' trade secrets about the precise chemical recipes, while mandating full disclosure when specifically needed by the state for health or environmental protection.

In the spring, the Colorado Oil and Gas Conservation Commission had proposed draft regulations which would have required natural gas drillers to disclose the exact recipes for the fluids which are injected into the ground in hydraulic fracturing. During summer hearings, the industry vehemently objected, and said that they would pull out of Colorado, rather than disclose their trade secrets. Lustgarten's article accurately describes this part of the story.

Then, according to Lustgarten:

In August, the industry struck a compromise by agreeing to reveal the chemicals in fracturing fluids to health officials and regulators — but the agreement applies only to chemicals stored in 50 gallon drums or larger. As a practical matter, drilling workers in Colorado and Wyoming said in interviews that the fluids are often kept in smaller quantities. That means at least some of the ingredients won't be disclosed.

"They’ll never get it," says Bruce Baizel, a Colorado attorney with the Oil and Gas Accountability Project, about the states’ quest for information. "Not unless they are willing to go through a lawsuit. When push comes to shove, Halliburton is there with its attorneys."

This is entirely wrong. Under section 205 of the final draft rules, which were published on November, the reporting trigger is not 50 gallon drums, but whether an individual well site uses 500 more pounds of a chemical product in a quarter. Significantly, fracking companies must disclose to the public the trade names of the fracking ingredients; moreover, whenever an environmental or health official needs information for a specific investigation, the companies must disclose the exact chemicals in their recipes, with the chemical list being treated a Confidential Business Information by the officials who receive the list. As a described in my article, the final rule is similar to what Halliburton proposed in its June 6, 2008 testimony.

Lustgarten's January 12 self-exculpation does not even mention his misdescription of the regulations, and does not attempt any rebuttal of my evidence that he falsely accused the natural gas industry of hiding "buried secrets" even though the industry had proposed a disclosure rule and the "most stringent" (Lustgarten's words) agency had adopted something very close to that rule.

2. A second issue is Lustgarten's bait and switch about data. The article includes an extensive discussion of a case in Sublette County, Wyoming, in which groundwater was alleged to have been contaminated by hydraulic fracturing, and in which the federal Bureau of Land Management determined that fracturing might be the cause. Lustgarten wrote:

The contamination in Sublette County is significant because it is the first to be documented by a federal agency, the U.S. Bureau of Land Management. But more than 1,000 other cases of contamination have been documented by courts and state and local governments in Colorado, New Mexico, Alabama, Ohio and Pennsylvania. In one case, a house exploded after hydraulic fracturing created underground passageways and methane seeped into the residential water supply. In other cases, the contamination occurred not from actual drilling below ground, but on the surface, where accidental spills and leaky tanks, trucks and waste pits allowed benzene and other chemicals to leach into streams, springs and water wells.

It is difficult to pinpoint the exact cause of each contamination, or measure its spread across the environment accurately, because the precise nature and concentrations of the chemicals used by industry are considered trade secrets.

In an e-mail to Lustgarten, I specifically asked him what he now calls "a precisely tailored question." I asked him for the documentation of his claim that there were over a thousand "documented" state and local cases of groundwater contamination from "hydraulic fracturing." ("where can the data be found which substantiate the fact about over a thousand documented cases of contamination from fracking in five states?") He responded by pointing to the Colorado and New Mexico agencies. ("The New Mexico Energy, Minerals and Natural Resources Department and the Colorado Oil and Gas Conservation Commission have together documented more than 1000 cases where water was contaminated by drilling activities.") I asked the Colorado and New Mexico agencies the same question I had asked Lustgarten, and the response was "zero" for Colorado; and that New Mexico has no such data.

Now, Lustgarten says that all along he was talking about any water contamination that resulted in any way from oil or gas drilling--such as leakage of chemicals from a waste pit on an oil-drilling site.

But that's not the question that I asked Lustgarten, and it's not what he wrote in his article. His article contrasts "the first to be documented by a federal agency" with "But more than 1,000 other cases of contamination have been documented by courts and state and local governments in Colorado, New Mexico, Alabama, Ohio and Pennsylvania." How many times do you think that any "federal agency" has "documented" groundwater contamination that resulted in any way from oil or natural gas drilling. If and only if the 2008 BLM case in Wyoming is the first and only case of such federal documentation can Lustgarten's defense of his article be true.

3. I also wrote that Lustgarten had falsely described a study by the Interstate Oil and Gas Compact Commission:

The Commission surveyed regulatory agencies in 28 states (including Colorado and the other four states where ProPublica claimed that there were more than 1,000 "documented" cases of contamination). The response covered the entire history of hydraulic fracturing in those states. Every single one of those 28 states reported that there had never been groundwater harm due to fracturing.

The ProPublica article did not report the evidence from that government study, but brusquely dismissed it as "an anecdotal survey done a decade ago." Actually, the 2002 study has no anecdotes, and with a dataset of almost a million wells, it cannot plausibly be considered "anecdotal."

There are three comprehensive studies about hydraulic fracturing: a 2004 study by the EPA; a second, earlier, study about the same subject as the EPA study (groundwater safety as it relates to about hydraulic fracturing in coal methane beds); and the third study, mentioned above, by the Interstate Commission. My article mentioned and discussed only the third study.

Lustgarten writes:

The drilling industry, echoed by Kopel, cites three documents when asserting the environmental safety of hydraulic fracturing. They are a 2004 EPA study (PDF), a 2002 survey of state agencies (PDF) by the Interstate Oil and Gas Compact Commission and a similar survey in 1998 by the Ground Water Protection Council (PDF).

In its Nov. 13 article, ProPublica detailed flaws in the EPA study and reported that the two surveys were "anecdotal," meaning that they included none of the basic data required to qualify as a scientific study.

To say the least, that's an extremely idiosyncratic meaning of "anecdotal." The dictionary defines "anecdotal" as "based on personal observation, case study reports, or random investigations rather than systematic scientific evaluation."

"Anecdotal" is an accurate description of Lustgarten's article, which examines a few cases of alleged contamination. There's nothing wrong with anecdotal news stories. "Anecdotal" is not an accurate description of the Interstate Commission study, which has no anecdotes, and which collected decades of data from 28 state regulatory agencies.

Now, we find that Lustgarten apparently has his own definition of "anecdotal"--that is, something is "anecdotal" if does not include "the basic data required to qualify as a scientific study." Perhaps at some time Lustgarten will explain what basic data he thinks were lacking from the two studies. As a media critic, I would not have criticized him for offering plausible critiques of the studies. His article, however, did not contain any argument about what data he thought were missing, and his characterization of the studies as "anecdotal" was false and misleading--at least for readers who understand the word to mean what the dictionary says it means.

Today I received this e-mail from Mark Thiesse, a Wyoming groundwater regulator who is quoted in Lustgarten's original article:

I’d like to thank you for your recent editorial on the ProPublica article. I was one of the folks (I’m with the WY Dept of Env Quality) interviewed for this article by Mr. Lustgarten. I spent several hours on the phone and around a dozen follow up emails to try and help him write a factual article. Unfortunately he seemed to have his own agenda. The one error that was most blatant from my perspective was the "20 mile long plume" that he mentions. I must have told him 5 times that it was individual impacts to separate water wells due to water well drilling practices – not related to oil and gas drilling at all – but that did not make it into his article that way.
If you had to make an important decision, would you rely on the factual information in a ProPublica article? I have only studied one article from ProPublica in detail, but the organization's implausible efforts to defend the validity of a wildly inaccurate article would make me hesitate to rely on anything from ProPublica.

  31 Comments


[David Kopel, January 10, 2009 at 10:10am] Trackbacks

ProPublica's Shaky Facts

My media column for today's Rocky Mountain News continues an investigation of ProPublica, a non-profit which supplies articles for free to mainstream media. The particular story I write about involves natural gas drilling in Colorado and Wyoming, and a technique known as hydraulic fracturing. My column finds very serious factual errors in the ProPublica article. For example, I write:

The Colorado experience of zero cases of water contamination from hydraulic fracturing is consistent with the 2002 study from the Interstate Oil and Gas Compact Commission (a consortium of state regulatory agencies). The Commission surveyed regulatory agencies in 28 states (including Colorado and the other four states where ProPublica claimed that there were more than 1,000 "documented" cases of contamination). The response covered the entire history of hydraulic fracturing in those states. Every single one of those 28 states reported that there had never been groundwater harm due to fracturing.
The ProPublica article did not report the evidence from that government study, but brusquely dismissed it as "an anecdotal survey done a decade ago." Actually, the 2002 study has no anecdotes, and with a dataset of almost a million wells, it cannot plausibly be considered "anecdotal."
The one article which I examined in depth is not necessarily representative of the overall quality of ProPublica's work. Nevertheless, the quality control failure on that article would make me very cautious about using ProPublica's work, if I were a MSM editor. Before using the article, I would probably assign one of my own staffers to fact-check the ProPublica article.

  22 Comments


[David Kopel, January 9, 2009 at 2:06pm] Trackbacks

Left/Right divide on spending and Israel

This week's National Journal poll of leading political bloggers asked about economic stimulation and Israel. The results showed perhaps the widest divergence of opinion between Left and Right since the poll began last fall.

On economic stimulus, voters rated different means, on a scale of 1-5, with 5 being best. Aid to the States was highly rated (54% giving it a 4 or 5) by the Left, but not by the Right. Infrastructure spending garnered 67% from the Left, and far less from the Right. Conversely, the Right gave 86% support to tax cuts for businesses and tax cuts for individuals, both of which garnered little support from the Left. The one issue of some agreement was on safety net spending, where 62% of the Left and 93% of the Right did not give safety net spending a high rating as a form of economic stimulus.

I gave Infrastructure a 3, which was higher than most of the Right voters, and would have rated it higher if I were confident that the money would be well spent. My comment: "Spending on useful infrastructure could help the economy in the long run, but it will be difficult to keep the stimulus money from being used for inefficient pork projects, which state and local taxpayers have rightly refused to fund."

Regarding Israel's use of force in Gaza, the Left/Right split was enormous. The Left was unanimous that Israel was using too much force. The Right divided between those who thought the amount of force was "about right" (58%) versus "not enough" (33%).

I was in the latter category, and wrote "No nation should have to endure years of terrorist rocket attacks aimed at civilians. Israel has every right to destroy Hamas. The civilians who elected Hamas are the ones who are to blame for the suffering of the people in Gaza, just as the voters who elected the Nazis bore the responsibility for the necessary Allied military invasion of Germany."

As has been previously noted in the VC, the Nazi/Hamas comparison is a little unfair to the Nazis (and, by extension, to the Germans who voted for them), since the Nazis didn't put genocide of all the Jews in their official platform, whereas Hamas does. 73 Comments


[David Kopel, January 6, 2009 at 7:46pm] Trackbacks

Kmiec v. Kmiec regarding Heller

Douglas Kmiec has sharply criticized the majority opinion in District of Columbia v. Heller. E.g., Slate, July 8, 2008 (majority opinion amounts to unjust rule by judicial fiat); Tidings, July 11, 2008 (Heller majority misconstrued the Second Amendment, had no basis in "Constitutional text, history, and precedent", and also violated the "long-standing teaching of the American Catholic bishops".) See also Slate, March 17, 2008 (Second Amendment's anti-tyranny purpose is obsolete, and the Court should not create a new purpose for the Amendment).

Contrast the viewpoint in these articles with that of an amicus brief filed in support of Heller, and in opposition to the District of Columbia:

Amici believe that the Amendment secures to individuals a personal right to keep and bear arms and that the decision below correctly interpreted and applied the Amendment in this case....If the Second Amendment does secure an individual right, then this case lies within its very core. For if that right means anything, it surely protects the right of a law-abiding citizen to keep an ordinary handgun in his own home for self defense. The District of Columbia's laws prohibit this, and so are to that extent unconstitutional.
That amicus brief was the filed by "Former Senior Officials of the Department of Justice in Support of Respondent." The Appendix provides a list of "Amici Curiae in Support of Respondent." The amici list states: "Douglas W. Kmiec served as Assistant Attorney General for the Office of Legal Counsel from 1988 to 1989."

It seems odd for a legal scholar to reverse his view of a major constitutional issue so completely and so vehemently in a such a short period of time, especially without an explanation of how he came to the conclusion that his former view was so utterly mistaken--or without even an acknowledgement that he recently held his former view so firmly that he urged the Supreme Court to adopt it.

UPDATE: Professor Kmiec's response (via a cordial e-mail to Eugene Volokh):

I joined the brief of former DOJ officers because at the time I thought the Court would benefit from a more complete statement of how the Department of Justice had construed the Second Amendment in past litigation and testimony; the former officer DOJ brief was primarily intended to supplement an incomplete presentation filed on behalf of former Attorney General Reno and others. My former OLC colleague, Charles Cooper, was the brief’s primary drafter, and while I supported his able presentation of the prior DOJ history, again clearly identified as the reason for the brief, I ultimately did not share – after the additional study I am certain many of us did of all the materials filed in the case — the bit of advocacy quoted by Professor Kopel. That ultimate difference of view I do not think disserved the core purpose for assisting the Court for the limited purpose described.
My response: As Professor Kmiec points out, the bulk of the brief is devoted to correcting the Janet Reno/Eric Holder/et al. amicus brief's mischaracterization of the historical position of the United States Department of Justice. However, the Conclusion of the brief is "For the foregoing reasons, the decision of the Court of Appeals should be affirmed." The first sentence which I quoted above was from the "Interest of Amici Curiae" and the latter two sentences were from the "Summary of Argument." So these sentences were not ornamental advocacy, but the very heart of the brief. I still do not understand why the Court's adoption in June of exactly what Professor Kmiec urged in February is not only incorrect, but utterly indefensible and lawless, as he claimed in July.

  50 Comments


[David Kopel, January 5, 2009 at 3:10pm] Trackbacks

Left/Right Consensus: Seat Burris

In the National Journal's latest blogger poll, 56% of left-wing bloggers and 78% of right-wing bloggers believe the U.S. Senate should seat Roland Burris. I voted in the majority on this one. Based on Burris's record in Illinois, which ranges from mediocre to pernicious, I think he will be a terrible Senator, but I think that the Senate is constitutionally required to seat him. The fact that Gov. Blagojevich may have unsuccessfully attempted to sell the Senate seat to other people does not mean that the appointment of Burris was corrupt. Of course it would be better in this case, and in the case of other Senate vacancies, to have a prompt special election to fill the seat. An Illinois Senate delegation consisting of Dick Durbin and Roland Burris is a pathetic contrast with the kind of Senators that Illinois used to send the nation, such as the distinguished duo of Everett McKinley Dirksen (Rep.) and Paul Douglas (Dem.) in the early 1960s.

Related Posts (on one page):
  1. Left/Right Consensus: Seat Burris:
  2. Argument for Why the Senate May Decline To Seat Roland Burris:
63 Comments  

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